Investigations into Magic (5) (Heterodoxia Iberica, 6) 9004441581, 9789004441583

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Investigations into Magic, an Edition and Translation of Martín Del Río’s Disquisitionum magicarum libri sex

Heterodoxia Iberica General Editor Jorge Ledo (Universidade da Coruña)

Editorial Board Fernando Bouza (Universidad Complutense) Nuria de Castilla (Ecole Pratique des Hautes Etudes, psl, Paris) Mercedes García-Arenal (Consejo Superior de Investigaciones Científicas) Ignacio J. García Pinilla (Universidad de Castilla – La Mancha) Carlos Gilly (Bibliotheca Philosophica Hermetica – Universität Basel) Luis Girón Negrón (Harvard University) Jonathan Israel (Institute for Advanced Study – Princeton University) Xavier Tubau (Consejo Superior de Investigaciones Científicas) María José Vega (Universitat Autònoma de Barcelona) José Luis Villacañas (Universidad Complutense, Madrid)

volume 6.5

The titles published in this series are listed at brill.com/hdib

Investigations into Magic, an Edition and Translation of Martín Del Río’s Disquisitionum magicarum libri sex Volume 5

By

Peter Maxwell-Stuart José Manuel García Valverde

leiden | boston

Cover illustration: Heilige Antonius de Grote van Egypte (Antonius Abt) als kluizenaar met de duivel in verschillende gedaanten die hem in verzoeking brengen, designed by Abraham Bloemaert and printed by Boëtius Adamsz Bloswert between 1590–1612. Rijksmuseum object number: rp-p-bi-2342. Public Domain. The Library of Congress Cataloging-in-Publication Data is available online at https://catalog.loc.gov lc record available at https://lccn.loc.gov/2022021610

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill‑typeface. issn 2213-0594 isbn 978-90-04-44158-3 (hardback) isbn 978-90-04-46895-5 (e-book) Copyright 2023 by P.G. Maxwell-Stuart and J.M.G. Valverde. Published by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink, Brill mentis, Vandenhoeck & Ruprecht, Böhlau, V&R unipress and Wageningen Academic. Koninklijke Brill nv reserves the right to protect this publication against unauthorized use. Requests for re-use and/or translations must be addressed to Koninklijke Brill nv via brill.com or copyright.com. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Introduction

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Note on the Latin Text 51

Disquisitionum magicarum libri sex Book 5: The Third Volume of Investigations into Magic, or, the Suitable Way for Judges and Confessors to Proceed 54 1 Preliminary Letters 54 2 Dedicatory Verses 56 3 Prefatory Remarks 64 4 Section 1: Should the Usual Legal Manner and Procedure Be Retained When Trying This Crime? 66 5 Section 2: In the Case of This Crime, How Should an Investigation Be Organised? 74 6 Section 3: Very Good Circumstantial Evidence Which Means That a Judge Can Proceed Safely to Try This Crime 92 7 Section 4: Other Less Compelling and Less Certain Pieces of Circumstantial Evidence 148 8 Section 5: (i) Laying Information against Someone, (ii) Witnesses 178 9 Section 6: Things Which Usually Take the Place of an Accusation in This Case, and the Accusation Itself 190 10 Section 7: Arrest and Imprisonment 192 11 Section 8: Accusation in Court after Imprisonment 210 12 Section 9: Torture 210 13 Section 10: Other Ways of Investigating the Truth 240 14 Section 11: Confessions 254 15 Section 12: Abjuration 258 16 Section 13: Canonical Purgation 266 17 Section 14: Acquittal 268 18 Section 15: The Nature of Acts of Fortune-Telling [sortilegiorum]. Which of Them Are Conducive to Heresy and Which Are Not? 272 19 Section 16: The Punishment and Execution of Workers of Harmful Magic 284 20 Section 17: Books of Magic 464 21 Section 18: Offering the Eucharist to Those Who Are about to Die 466 22 Section 19: Should the Corpse Receive Burial? 468

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Appendix 1: Additional Material from Pierre Dheure 470 Appendix 2: The Reply of Martín del Río of the Society of Jesus to the Questions of a Most Serene Prince about the Way to Proceed against Witches [striges] or Workers of Poisonous Magic [veneficos] 512 Question 1: Is Information Laid by Several People, without Any Other Proofs or Corroborative Evidence, Sufficient Proof of Itself to Warrant the Use of Torture? 514 Question 2: Should Enmity between Those Informing against Someone and Those Who Have Been Informed against Be Fully Proved by Two Witnesses, or Is Part-Proof by One Witness, or Even a Presumption, sufficient to Quash the Evidence Contained in What Is Being Informed? 562 Question 3: Should Those Who Are Laying Information Be Contrite, as Some People Wish, since This Is Not Clearly Expressed by This Law, and Witches [sagae] Are Very Rarely Penitent? 574 Question 4: Are the Requirements of the Law and Article 31 of the Caroline Constitution in Relation to One Person’s Laying Information also Required in the Case of Information’s Being Laid by More Than One Person? 580 Question 5: Should Information Laid by Persons of Ill Repute against Persons of Good Repute Be Believed in Crimes Which Fall Outwith the Normal Legal Rules? 584 Question 6: Is Information Laid by at Least Two or More Persons of Ill Repute Needed for This Purpose? 592 Question 7: So That One Can Proceed to the Examination and Torture of a Specific Individual, Is It a Requirement in Crimes Which Fall Outwith the Normal Legal Rules That, in addition to the Information Laid against Him by More Than One Person, the Individual against Whom It Is Laid Be Someone of Ill Repute? 592 Question 8: In the Absence of Evidence That a Witch Has Done Harm, for the Court to Proceed to Torture, Is It Sufficient That a Man or Woman Have Information Laid against Them, by More Than One Person, That They Have Seen Her [sic] in a Meeting or Assembly of Witches [sagarum]? 598 Question 9: When the Information Being Laid Says That This or That Individual Has Taken Part in Meetings of Witches [sagarum], Is Mention of a Specific Time and Place Required, or Is General Information Laid by More Than One Person, without This Kind of Detail, Sufficient to Warrant Investigation and Torture? 622 Question 10: In This Crime, or in Other Crimes Which Fall Outwith the Normal Legal Rules, Should Single Witnesses Be Granted a Hearing as Long as, in regard to the Circumstances, They Agree on What Was Actually Done, the Substantial Details and Purpose [of the Crime]; and Are Single Witnesses

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of This Kind Sufficient, When There Is More Than One of Them, to Constitute Evidence Justifying Torture? 640 Question 11: Is It a Requirement That, When Information Is Laid by More Than One Person, Each One of Them Make a Confession under Torture, or Can This Proceed Only When Information Is Laid by a Single Individual? 646 Question 12: Can a Woman Be a Witness in Criminal Cases? 652 Question 13: When Two Women Have Made a Confession, Is It Possible to Proceed to Torture or Bring in a Verdict of Guilty? 656 Question 14: When There Are No Testimonies from Men Which Contradict Them, Can One Have More Faith in Information Laid by Women? 660 Question 15: Does Information Laid by Several Minors Provide Reason Enough to Warrant Torture? 662 Question 16: Is the Likelihood That Information Laid by Only One Person May Be True Sufficient Supporting Evidence to Make It Possible to Proceed to Torture? 670 Question 17: Does Information Laid by Workers of Harmful Magic Who Are Also Involved in Other Crimes Provide Warrant for Torture, Most Especially When There Is More Than One of Them? 676 Question 18: Does the Extra-Judicial Withdrawal of a Name Which Has Been Given Judicially Weaken the Case for Proceeding to Torture? 682 Question 19: When One Does Not Find Any Instruments of Harmful Magic at All, Does This Annul the Information Laid by Several People, in Such a Way That It No Longer Furnishes a Warrant for Proceeding to Torture? 690 Question 20: Is Fairly Slight Evidence Sufficient to Warrant Torture in Crimes Which Do Not Fall Outwith the Normal Legal Rules? 690 Question 21: Which Fairly Slight Kinds of Evidence Are Sufficient to Warrant Proceeding to Torture? 698 Question 22: Should a Judge Be More Ready and More Willing to Proceed to Torture in Cases Which Are Dreadful and Have Been Kept Hidden? 704 Question 23: Does Social Rank Excuse Someone from Torture in a Criminal Case of This Kind? 706 Question 24: Should More Severe Torture Than That Used in Other Crimes Be Applied in the Case of Those Which Are More Dreadful [Than the Others]? 708 Question 25: Since Witches [sagae] Are, for the Most Part, Obdurate and Protected by a Malefice of Silence, What Kind of Torture Is More Effective in a Case of This Particular Crime? 710 Question 26: How Many Times Can an Accused Person Be Raised [by the Strappado], and How Long Can He Be Left Hanging to Get Him to Disclose Any Evidence? 712

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Question 27: How Long Can an Accused Person Normally Be Held Raised on the Rope? 714 Question 28: What Is the Longest Time That Can Be Used in Both Versions [of the Torture]? 714 Question 29: When a Judge Sees That the Accused Is Obdurate, or When There Are Other Lawful Reasons, Is It Possible for Him to Leave Off Examination and Torture and Come Back to Them after a Number of Days? 716 Question 30: What Should One Think about Pouring Cold Water on the Back of a Prisoner Who Has Been Hung up [by the Strappado]? 718 Question 31: When Can Torture Be Repeated after the First Pieces of Evidence Have Been Given, Especially in This Crime, since Witches [sagae] Are for the Most Part Obdurate and Stubborn? 724 Question 32: Is There a Basis in Natural Justice and Statutory Law for cErtain People’s Saying That Torture Should Not Be Repeated More Than Three Times? 726 Question 33: Should One Interpret Three Occasions as Referring to a Single Day or to Three Days with an Interval between Them? 728 Question 34: What [Does One Do] if the Accused Has Committed so Many Offences That His Examination Could Not Be Completed in a Single Day? 730 Question 35: Should One Follow Local Custom Undeviatingly, as far as Method of Torture Is Concerned, since There Are Great Differences between Persons, Evidence, and Crimes, and Therefore It Is Not Always Possible to Proceed according to One and the Same Method, and the Occasions of and Reasons for and Types of Torture Cannot Be Determined Either by Law or by Custom? 732 Question 36: Can the Method of Torture Be Prescribed by [a Judge] from a Higher Court to Judges in the Lower Courts? 734 Question 37: Should a Copy of the Evidence and Information about the Trial Be Given in the Worst Cases of Crimes Which Fall Outwith the Normal Legal Rules, or Is It Sufficient for the Judge to Tell the Accused What the Evidence Is, and for the Accused and Those Who Are Defending Him to Be Given a Hearing at Once, Because This Can Be a Better Way of Getting at the Truth? 736 Question 38: Should Advocates Be Appointed in Cases Involving the More Dreadful Crimes, since That Means the Accused Are Usually More Obdurate and Feel Encouraged to Deny [the Charges]? 742 Question 39: Does a Confrontation of Witches [sagarum], Who in Most Cases Are Prone to Retract [What They Have Said], Seem to Be a Good Idea? 748

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Question 40: Should Binsfeld’s Dictum, That a Charge Needs to Be Brought by Three or Four Women for Every Man Who Brings One, Be Complied with in the Territories of the Empire? 752 Question 41: What Should One Think about the Practice in Germany Which, up till Now, Has Accepted That Charges Involving Dances and Witches’ [sagarum] Meetings Are True, Are Capable of Being Proved beyond Reasonable Doubt, and Are Not Illusory? 752 Bibliography 757 Index to Book 5 769

Introduction 1

Del Río’s Life and Literary Corpus

Callimachus is said to have observed, μέγα βιβλίον, μέγα κακόν, ‘a big book is a big evil,’ and since Del Río’s work is large enough in itself, perhaps a long introduction would serve merely to test the reader’s patience to breaking point whereas he or she will need every ounce of it to cope with the immense detail with which Del Río embellished what he clearly intended to be the ultimate word on the subject. These preliminary words will therefore be kept as few as possible in order to let Del Río speak for himself. Is he worth the reader’s effort? Yes, he is. To be sure, he is not an easy companion and, indeed, can sometimes be exasperating, but his sheer diligence in an age without the ready aids of modern scholarship, not to mention his battles with increasing bad health and near-blindness and the discomforts and dangers (to express them no more vividly than that) of sixteenth-century travel by land and sea in a Europe riven by war and local lawlessness, elicit one’s admiration and this, in turn, increases one’s curiosity to find out what he has to say. For all its length, his book is no mere dry or rambling compilation of quotations; nor is it simply a re-hash of what others had said a dozen times before. It is indeed partly an exhaustive survey of material relating to magic and allied beliefs, practices, and theories, but it is also a record of one man’s quirky, but carefully-considered meditation upon an interaction between the physical and non-physical worlds which seemed to be growing rapidly out of control and posing a an existential menace to humanity. It is perhaps no accident that Del Río was a Jesuit, a member of God’s shock-troops whose task was to fight the forces, human or not, which threatened to subvert God’s plan for the well-being and salvation of His creation. A war is not won by tactics alone. Strategy is essential and strategy depends on as full an understanding as possible of the enemy in all his strengths, weaknesses, and likely intentions. Hence Del Río’s thoroughness. He saw himself not only as a spokesman for the Catholic Church, but also as her doughty defender and principal strategist, since his work was laying the foundations of her future invincibility in her struggle with the forces of evil in the secular world. His intentions (and indeed achievement) in the Disquisitiones thus go well beyond those of any other contemporary writer on the subjectmatter, whose aims were in general more limited and less grandiose, and his voice, which not only informs the whole work, but breaks through his text over and over again, is not merely combative, but assured and distinctive in a way which commands the reader’s close attention.

© P.G. Maxwell-Stuart and J.M.G. Valverde, 2023 | doi:10.1163/9789004468955_002

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Martín Antonio del Río was born on 17th May 1551 in Antwerp which was then a bustling trading-centre in the Duchy of Brabant in the Spanish Netherlands. Nomenclature can be misleading. During the sixteenth century, for example, ‘the Netherlands’ included territories remarkably different in character, language, and government, not to mention religion later on, owing political allegiance to rulers as disparate as the Spanish Habsburgs, the Church, the Spanish Crown, and independent Dutch authorities. ‘Belgium,’ too, a term which appears quite frequently in Del Río’s work, in effect referred to the Spanish Netherlands during his life-time, that is, territories governed de facto by Philip ii of Spain as a result, first of Charles v’s declaration in 1549 that the seventeen provinces of which they were constituted was a Habsburg fiefdom and then, from 1556 onwards, after Charles v’s abdication as Holy Roman Emperor and the succession of Philip ii to the Spanish throne.1 It was not long before this led to a revolt and in 1568, in part at least because of a growth of radical forms of Protestantism, especially Calvinism, which made themselves felt throughout the Netherlands, and the strong counter-measures adopted by the Spanish authorities, the opening salvoes were fired in a conflict which would later be termed ‘the Eighty Years War.’ A significant part of Del Río’s life, therefore, saw his native country (although he may not have viewed it in quite those terms) riven by political instability and religious tension. Indeed, this instability and tension affected him and his family personally, and it was not until he joined the Society of Jesus in 1580—not in the Netherlands, but in Spain, the land of his parents’ birth—that politics moved from the forefront of his mind to the back and were replaced, perhaps not entirely, but certainly for the most part, by religion and the battle, as he saw it, for higher truth. His father, Antonio Del Río, was a Spanish merchant, originally from Castile, and his mother, Eleonora López de Villanova, also came from merchant stock in Aragon.2 Antwerp had developed into a major port concentrating on the commerce of fairly expensive items and attracted a large number of Spanish and Portuguese traders. Friso Wielenga succinctly expresses its situation at this time:

1 They consisted of the Duchies of Brabant, Limberg, Luxembourg, and part of Guelders, the Counties of Artois, Flanders, Namur, and Hainaut, the Lordship of Mechelen, city of Tournai, and the surrounding area, and the Prince-Bishopric of Cambrai. 2 A marginal note to a copy of Rosweyde’s Life, held in the Plantin-Moretus Museum, says that ‘among serious-minded men in Spain, there was disagreement about whether the names Delrio and Delrío [Delrius] were one and the same or different, a doubt which caused the change of names,’ i.e. from Del Rio to Del Río. I am grateful to Jan Machielsen for providing me with a copy of these marginalia.

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A thriving economic and military strategic northern hub was building up round Antwerp, and this was of key significance to the consolidation and expansion of the position of the Habsburgs in Europe and the rest of the world.3 As a member of the Spanish influx which was coming to dominate the higher echelons of Antwerp society, Martín, therefore, along with his younger brother, Jerónimo, grew up in comfortable surroundings and in what would now be called an upwardly-mobile family which had high expectations of itself and its immediate future and at one point their father, according to Heribert Rosweyde, was able to build a new, almost palatial family home in one of the most fashionable and expensive parts of the city, where the Del Ríos received and entertained Margaret of Parma and the Duke of Alba, two governors-general of the Spanish Netherlands, when they stayed in Antwerp. Rosweyde tells us that Martín received at least part of his early education in Lier which is about eighteen miles south-east of Antwerp. Why did he go there rather than stay in Antwerp? The answer may lie in the increased status and fresh property acquired by his father Antonio. In 1557 he bought the castle and lordship of Cleydael which is nearly seven miles due south of Antwerp and then, in 1561, when Martín was just over ten years old, Antonio bought him the seigniorial rights of Aartselaar which is just over seven miles due south of Antwerp and only about one and a half miles south-east of Cleydael. Lier, however, is nearly eighteen and a half miles from Antwerp, nearly thirteen from Cleydael, and nearly thirteen again from Aartselaar. These distances suggest it would have been too far for Martín, still a child at this time, to have travelled from either Antwerp or Cleydael or Aartselaar to Lier on a daily basis, and that therefore that it is more likely he either received the majority of his education, at any rate, in Antwerp, or was sent away, as Erasmus was at the age of nine, to benefit from a school particularly known for its Classical education.4 It included a good grounding in Latin and Greek, to which he later added Hebrew and a working knowledge of Chaldee [Aramaic]. He will also have spoken Spanish 3 A History of the Netherlands, 11. 4 Erasmus was sent to Deventer, which is c.89 miles away from his birthplace of Rotterdam. The school there had a great reputation for its Latin teaching. Lier had been sufficiently noteworthy in 1425 to have been offered the chance of hosting the region’s first university, a chance it turned down, whereupon it was seized by Leuven which was then granted its foundation in a Papal Bull of Pope Martin v. Since education does not seem to have been one of Lier’s priorities at the time, it is therefore somewhat difficult (quite apart from the practical travelling difficulties) to see why Del Río would have gone there at all, let alone spent any protracted period there unless it had had a similarly renowned school.

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and Flemish at home and in town, and at some date acquired German, Italian, and French, the latter either learned or burnished during his years as a student in Paris. On 1st December 1563, at the age of twelve and a half—young, but not remarkably young for this by the standards of the time—he matriculated in the University of Leuven and continued his study of the arts there for three years before going to Paris to study philosophy for two years. It was while he was in Leuven that the political and religious situation in the Netherlands, which had been growing increasingly fraught as Calvinists in particular took advantage of a weak central authority and an open attempt by some nobles to seize power for themselves and to have the anti-heresy laws repealed, to practise their religion openly and, indeed, aggressively. Del Río was in Antwerp, perhaps at the end of his studies in Leuven while he was making preparations for a journey to study jurisprudence at the very recently founded University of Douai, his likely next place of study, which opened its doors to students in 1562, and saw the damage religious rioters had done during late August, 1566 to the images in the Church of Our Lady.5 His studying jurisprudence in Douai is an indication that he was preparing himself for a secular career which would promote the interests, wealth, and status of the Del Río family, and his continuing such studies over the next seven years in Paris, Leuven, and Salamanca, as well as Douai, lends emphasis to this. In Paris he noted the damage done to a stained-glass window in the Church of Saint-Médard.6 Paris was a somewhat dangerous place to be living in during the 1560s. Religious wars afflicted dreadful damage on both life and property and although an uneasy truce ended the preliminary stage of conflict in March 1563, by 1567 it had broken out again. Fortunately for Del Río, he was probably over a hundred miles away in Douai at the time. It was not until March 1568 that another truce was called, but if Del Río ended his academic year in Douai and arrived in Paris after that March, he would have avoided the worst of the fighting, although not the tension which continued to grip the city. While in Paris he attended lectures on Aristotle and theology given by Juan Maldonado, a Spanish Jesuit who had arrived in 1565 to occupy the chair of theology in the Collège de Clermont. Maldonado also gave an influential series of lectures on demonology, but not until 1571–1572, by which time Del Río had left Paris, first for Leuven and then

5 Investigations Book 3, Part 1, Question 7, Section 1. 6 Op.cit. supra, Section 2. The Church of Saint-Médard was attacked several times. In 1561, for example, a Catholic baker was murdered there, as were several other worshippers on a different occasion, and riots occurred in the church more than once during the year. See Natalie Zemon Davis, ‘The rites of violence: religious riot in sixteenth-century France,’ Past and Present 59 (1973) 56, 62, 77, 86.

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for Salamanca. He did, however, have a brief brush with magic in as much as he frequently had sight of Maître Gonin, a notorious magician who survived his trial on a capital charge.7 Del Río’s ‘saepe vidi’ and ‘audivi’ suggest the man was pointed out to him and that Del Río was kept up to date with the gossip about him rather than knowing him personally. The brush was therefore at a distance and probably cannot be counted as a stimulus to his later interest in magic and demonology. From Paris, Del Río moved back to Leuven where he received his ll. B on 8th May 1572. At about this time he was taught mathematics, which will have included astrology, by Jan van Ostaeyen [Joannes Stadius] a noted professor of both subjects, who went on to become mathematician to Philip ii of Spain and the Duke of Savoy.8 Del Río had not been a typical student in the meantime, in as much as he had prepared editions of two Classical authors, the third-century ad grammarian, Julius Solinus, and the fourth-century ad poet, Claudius Claudianus, both of which were published in 1572 (not ‘1571’ as Rosweyde has it for Solinus in his Life). For his work on the former, Del Río borrowed a manuscript from Justus Lipsius whom he had probably met in the late 1560s, and dedicated the work to Cardinal Antoine de Granvelle, who was Viceroy of Naples at the time, but who had been one of the most influential figures in the government of the Spanish Netherlands during the early 1560s. For his edition of Claudian, Del Río borrowed a manuscript from Victor Gislain (1543–1591) a physician and philologist whom he describes in the courteous way of the period as ‘a man of remarkable learning.’ Interestingly enough, an edition of Claudian had been published in Antwerp the year before by Theodore Poelmann, a self-made scholar who worked for the publishing house of Plantin which also published Del Río’s edition. Having gained his bachelor’s degree, Del Río then made preparations to continue his legal studies in Salamanca. This time he was accompanied by his younger brother, Jerónimo. An overland journey from either Leuven or Antwerp in high summer would perhaps have been less preferable than covering part of the distance by sea, and sailing from Antwerp to Bilbao or Santander may not have taken too long, although pirates were a constant danger and the Bay of Biscay was notorious for its adverse winds which were quite capable of holding up ships for days or even weeks at a time.9 Once disembarked, however,

7 Investigations Book 3, Part 1, Question 5. On being taught by Maldonado, see Investigations, Prologue to Book 1. 8 Investigations Book 4, Chapter 3, Question 1. 9 Sailing ships travelled by stages from port to port. From Antwerp to Dunkirk, Le Havre, Cherbourg, Brest, Nantes, Bordeaux, and Santander or Bilbao represents a possible such route.

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Martín and Jerónimo could have travelled overland to Salamanca in about three weeks. The distance from Bilbao to Salamanca is about 247 miles, and from Santander about 197 miles. They would clearly have needed to break this into stages, and the most obvious stopping places along the route are, perhaps, Burgos, Palencia, Valladolid, Cuéllar, and Segovia, none of which need have been more than two days’ ride from one another. Martín matriculated on 1st December 1572 and at some point during the following year he heard about the trial of a notorious prostitute in Madrid, who had confessed, under torture, to having used the brains of a young donkey to make a magic philtre. Apparently she was found guilty, flogged, and sent into exile. It may also have been at this time that he was shown ‘an enormous vault, the relic of a college of execrable irreligion’ which Queen Isabella had ordered to be blocked up a century ago.10 In 1574, on 13th December, he received his Master’s degree in law, but apparently did not leave Spain immediately, because in 1575 we find him living in Madrid. The Netherlands were dangerous at this time. The Duke of Alba had been sent to counter and suppress actual and potential rebellion and this he did with great brutality until he was recalled to Spain by Philip ii. The new Governor, Luis de Requeséns y Zuñiga, pursued a somewhat more moderate policy, but he died suddenly on 5th May 1575 and was replaced by Philip ii’s half-brother, John of Austria, who was not so willing to compromise. Pedro Henriquez de Alevedo, Count of Fuentes, who would later become Governor-General, had been present at Del Río’s graduation in 1574. He was a man of high influence at the Spanish Court and may have suggested that Del Río visit Madrid for the time being rather than return to the perils of home. His may not have been the only welcoming voice. Cardinal de Granvelle was in Madrid in 1575, as was the Duke of Alba whom the Del Río family had entertained in Antwerp, not to mention Del Río’s cousin, Luis, who was well-known to the Duke. So the Del Río name on its own could have been sufficient to recommend young Martín and Jerónimo to the highest echelons of Madrid society. While he was there, Del Río had another brush with the preternatural. ‘In 1575, when I was living in Madrid, one used to see a boy who belonged to the tribe [of clairvoyants]. The talk is that they can see things which lie in the very bowels of the earth—water-channels,

10

Del Río was certainly acquainted with Bordeaux, although his references seem to refer to the 1580s rather than the 1570s. Investigations Book 5, Section 4, no. 14. In relating this anecdote, Del Río says ‘I remember’ (memini) but whether this means he had taken a fairly extensive break from his studies— from Salamanca to Madrid is c.272 miles return journey—to visit the capital, or was later remembering something he had been told, is not altogether clear. Vault: Investigations, Prologue to Book 1. The vault was actually the crypt of the Church of St Cyprian. As a result of Queen Isabella’s command, the church itself was also demolished in 1580.

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rich veins of metals, and dead bodies under their grave-monuments’.11 As in the case of Maître Gonin, however, this appears to be no more than Del Río’s noticing someone on more than one occasion (perhaps a street-performer, the word genus [‘tribe’ or ‘stock’], may suggest the boy was a gypsy) being inquisitive and receiving a few details from one or more of the locals. Once again, Del Río appears to have put his time to scholarly use by editing and commenting on ten tragedies by Seneca. In spite of his untruthful claim in the preface to this work, Adversaria (‘Arguments’ or ‘Assertions’) that he had completed it at the end of 1571, it seems clear from a letter written by Del Río to Christophe Plantin from Burgos, possibly on his return to the Netherlands from Madrid, and a reply from Plantin, dated 7th November, 1575 that it was actually ready for the press in the early winter of that year, when indeed it duly appeared.12 In 1576, however, Del Río’s life began to undergo a series of changes which would see him, first, apparently begin to achieve the kind of secular advancement in career for which his education had been preparing him, but then take an entirely different direction. The year did not bode well. Tension in Antwerp reached breaking point and on 4th November the city was sacked by Spanish troops, furious because they had not been paid for a considerable time. The pillage lasted for three days and was brought to a temporary end on 8th November by an agreement, the so-called ‘Pacification of Ghent,’ which was meant to provide both sides with some kind of breathing-space. It did not last and the Del Río family found itself on the wrong side, because on Christmas Day soldiers invaded Cleydael and stripped it of everything valuable, including Martín’s extensive library. Martín’s cousin, Luis, had already been arrested and imprisoned, his father under suspicion of embezzlement, and the family left more or less destitute. But by 1577 Martín was in Brussels where, after the arrival of John of Austria as the new Governor-General in November, 1576 and his formal entry in May the following year, he and Luis enjoyed a resurgence of good fortune, with Martín being appointed to the Council of Brabant on 7th November. His father, however, was not so lucky. He was arrested in August and then forced to agree to repay (in part) some of the money he had peculated from the Treasury, but in November, while Martín’s star was rising, Antonio fled the Netherlands and never returned. It was during 1578 that Del Río, acting in his judicial capacity, as he says, was offered a little grimoire and a box containing a mandrake root which had belonged to a university graduate. (Had he 11

12

Investigations Book 1, Chapter 3, Question 4. On this kind of faculty, see further R. Martín Soto, Magia e Inquisición en el antiguo Reino de Granada, siglos xvi–xviii, Málaga: Editorial Arguval 2016, pp. 140–143. See Machielsen, Martin Delrio, 128–130. The title page makes the date clear.

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died or been arrested on a charge of magic which resulted in confiscation of his goods?). The mandrake root Del Río tore to shreds and threw on the fire. He does not say what he did with the grimoire.13 On 1st October 1578, however, John of Austria died and Del Río acknowledged his debt to his patronage by publishing what he calls, in a clear reference to Julius Caesar’s reports on his campaigns in Gaul, Commentarii (‘Memoirs’) an extensive account of recent events in the Spanish Netherlands, with Don John as the hero of the narrative. The loss of his patron, however, unsettled Del Río and these memoirs make it clear that he saw the struggles taking place in the Netherlands as those of good against evil, Catholic truth against Protestant heresy, religious orthodoxy against irreligious heterodoxy. Whether he was at this stage beginning to see himself as a spokesman for and defender of the Catholic Church is a moot point, but by the end of December, 1579 he had come to the conclusion that the direction his mind was taking was consistent with the aims and ideals of the Society of Jesus, and had written to the Superior General, with the support of the Jesuit Provincial of the Spanish Netherlands, to say he had decided to enter religion under the auspices of the Society. He was told to go to Valladolid but stopped in Paris to make arrangements for the publication of his Interpretation of the Codex and the Institutes of Civil Law which duly appeared in 1580. From Valladolid, he was sent to Villagarcía de Campos, about 32 miles away, to begin his novitiate, and we next hear of him on what was to be an almost endless series of travels for the rest of his life. On 23rd June, 1584 he was in León where he noticed a large number of gypsies flooding into the city for the Corpus Christi procession and on 25th September, having been ordered to return home to the Netherlands, he was in Burgos, presumably on his way to Bilbao or Santander where he could pick up a suitable ship. In his Investigations into Magic, he records that he knew two men—one in Burgos, the other in Salamanca—who had had encounters with ghosts, and he also tells an anecdote about a nobleman of his acquaintance from Burgos who thought, wrongly, that he was fighting a ghost at night and had to be rescued from his fantasy by people from the neighbourhood who had been woken up by the noise he was making. Neither of these anecdotes, however, is necessarily datable to this year.14 By 23rd October he was in Bordeaux, presumably lodging in the city’s Jesuit house, and there he stayed, ill or malingering, for just over two years, clearly unwilling to go back to a country which now held such bitter memories for him. Bordeaux was not unpleasant, in spite of an outbreak 13 14

Investigations Book 4, Chapter 2, Question 6, Section 4. Gypsies: Investigations Book 4, Chapter 3, Question 5. Ghosts: Investigations Book 6, Chapter 2, Section 1, Question 1.

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of plague in 1585 which was heralded, as Del Río noted (‘I saw them myself’) by an autumn flowering of roses in the Jesuits’ garden. He was also told, although not necessarily at this time, about a local advocate who used to keep a familiar spirit in a glass bottle. When the advocate died, his heirs, too frightened to destroy it themselves, brought it to the Jesuit college where the Fathers waited until the heirs had gone and then hurled it into one of their ovens where it burst with a simple crack. He also tantalises us with a remark appended to his saying that evil spirits can transform themselves into an angel of light and into the Mother of God: ‘I know this happened because I was living in Bordeaux at the time.’15 It is perhaps likely to be an incident he was told about rather than one he had seen himself, because he would surely have made more of it had he been an eye-witness. On 17th February 1586, his father died in Lisbon. Antonio had never recovered from his disgrace eight years earlier and his wife had not followed him into his self-imposed exile. Having delayed obedience to his superiors’ instructions to go back to the Netherlands as long as he could, finally, on 23rd December Del Río left Bordeaux and became a student again, studying theology at Mainz where he received the tonsure in 1587 and in the Jesuit college in Leuven where he was ordained priest in 1589. At Mainz he may have been taught by Jan Buys, a fellowNetherlander, who taught theology at Mainz for twenty years, round about the time Del Río was there. So too was Petrus Thyraeus who may also have been one of his tutors, since he taught theology in Mainz from 1574 until 1590. He had a particular interest in ghosts and invasive demons which resulted in his writing books which Del Río later used as part of his background reading for Investigations. He notes that the university had a particularly good library and records an incident of monastic demonic magic in 1509 which he took from one of its books. He also remarks a piece of contemporary gossip, the execution in Trier of a notorious wise-woman [saga] who had been found guilty of magically stealing milk from other people’s cows. These and similar instances from his reading or personal experience during the 1580s and 1590s suggest that he had or was developing an interest in magic and planning to write about it at some time.16 After studying theology there and in Leuven, where Joannes Sturmius from Mechelen was teaching dialectics and metaphysics from 1585 until 1591, he was posted to Douai and Liège where he added the role of teacher to student and, among other subjects, began to teach philosophy. While in Douai, 15 16

Roses and glass bottle: Investigations Book 4, Chapter 3, Question 2. Transformation of spirits: Investigations Book 2, Question 26, Section 7. Library: Investigations Book 4, Chapter 1, Question 3, Section 4. Wise-woman: Investigations Book 2, Section 12.

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he may have met Claude Dausque who received his teaching degree in theology there, later became a Jesuit, and wrote one of the dedicatory poems to Book 3 of Del Río’s Investigations. Del Río also refers to Jan Decker, already established as a lecturer in Douai and Leuven, from whom he was seeking clarification of a phrase in one of St Catherine of Siena’s lectures, as his colleague in theology, and gives further evidence of his interest in magic and allied subjects at this time. There are, he says, people who pretend to be the souls of dead husbands and so persuade widows to marry them. ‘I know there is someone who frequently does this in Leuven.’ He also had an epistolary conversation about predictive dreams with his friend Justus Lipsius, ‘while I was living in Leuven,’ and tells us that he once gave a public lecture on magical knots and ligatures there, perhaps while he was a student.17 This interest should not surprise us. The final decades of the sixteenth century in Europe saw a marked increase in the level of witch-prosecution and, indeed, the prosecution of all types of magical practitioner. This was preceded and accompanied by political turbulence, a ratchetting of religious tensions, and several notable attempts to warn people, learned and unlearned alike, that Satan was conspiring with ever-growing numbers of maleficent human beings to overthrow both Church and state, and the Spanish Netherlands was a mirror of all three. Waves of witchcraft prosecutions swept through Flanders and Brabant, and it so happened that the first execution for witchcraft in Brabant was that of Cathelyne van den Bulcke in 1589, which took place in Lier, where Del Río received his primary education. It was soon followed by others. Meanwhile, sermons, broadsides, and pamphlets, not to mention the theatre of public executions themselves, underlined the message and served to excite both an uneasy curiosity and neuroses already heightened by war and its accompanying terrors.18 In 1593–1594 Del Río was in Tournai, preparing to take his final vows. His health had not improved and, indeed, seemed to be getting worse, particularly during winter, but he managed to publish his Treatise on Latin Tragedy, with a grateful dedicatory preface to Justus Lipsius who had given him help and advice, and smoothed relations between Del Río and the publisher, which had proved somewhat fraught. Seneca’s portrait of the magician Medea in the

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Jan Decker: Investigations Book 4, Chapter 1, Question 3, Section 4. Dead souls: Investigations Book 2, Question 27. Conversation: Investigations Book 4, Chapter 3, Question 6. Lecture: Investigations Book 3, Part 1, Question 3. Again, these instances cannot be securely dated to 1589, since he was in Leuven again in 1594–1598 and briefly 1600. See further W. Behringer, ‘Witchcraft and the media,’ in Ideas and Cultural Margins in Early Modern Germany, ed. M.E. Plummer, London: Routledge, 2009, pp. 220–230.

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tragedy which bears her name clearly stimulated his interest in magic and demonology in particular (as opposed, let us say, to the ghosts and predictive dreams which had tended to catch his imagination thus far) but he was still alert to anything unusual, such as the remora fish which could hold back a sailing-ship in mid-voyage, a specimen of which he says he saw in Jacques Plateau’s house in Tournai, or the large wooden crucifix whose figure used to grow a hair and beard and had to be shaved each year, which he saw in Damme, a town near Bruges.19 Not long afterwards he returned to Leuven where he had a conversation with the Dean of St Rumbold’s Church in Mechelen. A man was out walking with a gun, he said, when a number of crows and other birds started to shriek at him. He levelled his gun at them and shot one, but could not find the body, only an iron key. When he showed the key later to a friend, the man recognised it as belonging to a neighbour of his, and when they went to the house, they found a woman there, lying dead from a gunshot wound—clearly a witch who had changed shape and been caught by the bullet.20 By the end of December 1595, however, Del Río’s patience with the Netherlands was under strain. Local problems connected with the Jesuit college in Leuven and the university were partly to blame, and it is likely he was overworking, because he was not only collecting material for Investigations, but also completing Blossoms for Mary and preparing it for publication; and all this, it seems, was exacerbated by his continuing bad health which, he complained, was becoming worse, especially during the winter.21 He was eventually given permission to go back to Spain in 1597, as we can tell from the dedicatory letter which prefaces Blossoms. ‘Friendship, admiration, and gratitude,’ he wrote to Charles de Billehé, one of Ernst of Bavaria’s close counsellors, ‘were all strong reasons which impelled me without hesitation to dedicate this little book to you before I left for Spain.’ He never got there. Rosweyde says he changed his mind at the thought of the difficulties and perils attendant on the sea-voyage and went to Liège instead. (Actually he went on board, but the ship had to turn back, and Del Río cried off going to sea again). It was here that he heard about the trial and execution of a Flemish Benedictine, Jean del Vaulx, for diabolic magic. The information came from one of the judges, Pierre Dheure, a friend

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Justus Lipsius and the Syntagma: see Machielsen, Martín Delrio, 176. Remora fish: Investigations Book 1, chapter 3, Question 4. Crucifix: Investigations Book 2, Question 25. Damme and Bruges are quite close together and there was a Jesuit house and college there. Bruges and Tournai, however, are nearly 51 miles apart, so it is not clear when or why Del Río would have gone there. Investigations Book 5, Section 3. Letter to the Superior General: Machielsen, Martín del Río, 65.

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of Justus Lipsius since 1588, who had introduced him to Del Río. The affaire Stavelot began in 1592 when monks in the abbey of Stavelot began to fall ill and Del Vaulx was accused of being the cause. For some reason it was not until 1595 that Prince Ernst of Bavaria was alerted to Del Vaulx’s apparent involvement, and not until spring 1596 that Del Vaulx was subjected to questioning about it. He confessed, with a remarkable amount of detail, to practising diabolic magic and to attending witches’ Sabbats, and was executed the following year. Apparently he had a mark of the kind that were often called ‘witch’s marks’ on his back, which was tested in the usual way, that is, probed by a long needle. This drew no blood and caused no pain and was thus an indication of his having become a servant of the Devil.22 These sensational details apart, Del Río continued his long-standing curiosity about behaviours which impinged upon the realm of magic, noticing that ‘this year [1597] in Leuven’ an itinerant female physician had put out an advertisement saying that people who wanted to make use of her remedies ought not to allow regular (i.e. male) physicians or priests to touch them, otherwise they would lose their power—a caveat he took to indicate that the woman was dealing in harmful magic.23 It was round about this time, according to Rosweyde, that Del Río completed his Investigations into Magic, although ‘he did not publish these commentaries when he wrote them but allowed them to mature for three years.’ A publication date of 1599 for Books 1–4 suggests that Rosweyde was right, and also that Del Río’s writing them coincided with a wave of witch activity in the Netherlands’ Jesuit province during the years 1589 to 1596. (They may, in fact, have started as a teaching course, as is suggested by two mss., one in Edinburgh, the other in Brussels, written by two men who were students in Leuven at the time). In November 1597, Lipsius and Del Río were discussing a title for the work and in June 1598 Lipsius sent him a short poem which appears as the first of three prefatory poems in the 1608 edition. Lipsius also sent a manuscript copy of the book to the Moretus publishing house in August 1598, and when this was refused (on what grounds is open to speculation) the manuscript was sent to Gerard van Rivieren, a publisher recently moved to Leuven from Liège, and published in three parts between 1599 and 1600.24 It seems to have been well, although not uncritically, received—on 27th November, 1599 Pierre Dheure, having read Book 2, wrote to him about the Stavelot affair, a lengthy letter which

22 23 24

See further Boutcher, The School of Montaigne, 191–198. Witch’s mark: Investigations Book 2, Question 21. Investigations Book 6, Chapter 2, Section 1, Question 1. Machielsen, Martín Delrio, 219–220, 227–228. Van Rivieren’s place of business was situated on the principal market square of Leuven. He had moved there from Liège in 1597.

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Del Río subsequently incorporated into Book 5—and had scarcely been out a few months before Van Rivieren was asking Del Río about the possibility of a second edition. It was then, generally speaking, a satisfactory end to the year in which Del Río had, at long last, taken his final vows as a Jesuit.25 In August, however, he was on his way to Graz in Austria, nearly 670 miles away. The Jesuit college there had been founded fairly recently and on the first page of Book 5 of the revised and expanded Investigations, Del Río recorded his appointment as Professor of Holy Scripture there. He was not alone. His colleague from Leuven, Jan Decker, moved there in 1600 to become Chancellor of the University. A few months before Del Río arrived, the Jesuit Fathers in Graz had had to deal with a young man, Nicholas Prutenus, who had signed a pact with the Devil. As a result of this and his subsequent horror at what he had done, he became suicidal, but someone persuaded him to come to Graz and from March until June 1600, with the Jesuits’ help he fought against his diabolic involvement and finally broke free. ‘The Jesuits here preserve the story, written in his own hand, in their college,’ noted Del Río, ‘and while I was writing this, I had it in front of me.’26 Meanwhile, as well as becoming exercised by the appearance of a pirated version of Investigations, Del Río published a lengthy didactic poem by a fifth-century writer, ‘Orientius.’ It is a long succession of elegiac couplets on the subject of how to attain salvation, and the only surviving manuscript was held by the Benedictine Abbey of Anchin where Heribert Rosweyde discovered it and passed it on to Del Río for editing. This Del Río did, perhaps while working on the earlier stages of Investigations, and so produced the edition princeps and provided the poem with a title, Commonitorium, ‘A Letter of Instruction’ or perhaps, ‘A Reminder.’27 The following year he was awarded his doctorate in divinity (rather late, it might be thought, for so learned a man) and published poems by the seventh-eighth century writer Aldhelm, mainly The Eight Principal Vices, Aldhelm’s versification of his own prose work on virginity. Del Río clearly had a copy of the manuscript at hand while writing Book 6 of Investigations, because he informs the reader that ‘this has not yet been published but is in a manuscript […] in Liège,’ and goes on to quote one or two of the verses. He also refers to the case of a husband and wife ‘who were hanged here in Graz in 1601’ after claiming that they alone protected

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This he had done in Mons which is 59 miles south-west of Leuven. Decker: Investigations Book 4, Chapter 1, Question 3, Section 4. Prutenus: Investigations Book 6, Chapter 2, Question 3, Section 3. Anchin Abbey was only just over eight and a half miles from Douai, and the Jesuits had built a college nearby in 1562, so this may help to account for Rosweyde’s discovering the manuscript. Troubled by pirated editions: see Machielsen, Martín Delrio, 229.

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the Church from harm and predicting that the world was about to come to an end.28 This last was part of his revision and expansion of Investigations, which he obviously undertook almost as soon as the first edition had appeared on the bookstalls. In September 1602, this process was given an extra fillip because he was asked for his expert opinion in connection with a debate on the conduct of and necessity for recent witch trials in Bavaria, which had been taking place during the last years of the 1590s. His was by no means the only opinion being canvassed. Several universities were sent ‘questions arising in the case of witches,’ but it was a mark of the impact his Investigations had made already that he should be asked.29 His sojourn in Graz ended not long afterwards, because by July 1604 he was in Salamanca, to the delight of many. By the following February, however, his superiors had ordered him back to Graz, but he delayed and delayed and finally got his own way. He was not particularly keen to stay in Salamanca—he regretted the poverty of the library there in comparison with that of Leuven—and so being ordered to go to Valladolid was not unwelcome and there he stayed until the summer of 1608. The volume of his publications increased, almost as though he were afraid his poor health and increasingly bad eyesight would cut him short before he could fulfil the tasks of comment on and explication of the Scriptures which he had envisaged for himself. A commentary on the Song of Songs, dedicated to Archduke Ferdinand of Styria whom he had met at the Jesuit college in Salamanca, appeared in 1604, and a Defence of [Dionysius] the Areopagite in 1607. This last was actually a reply to Joseph Scaliger’s criticisms of what he had said about Dionysius in Investigations and, more generally, Scaliger’s dismissal of the authenticity of the text long attributed to Dionysius. The almost frantic rate of publication reached its climax in 1608 with Del Río’s commentaries on the book of Lamentations, the book of Genesis (intended to be the start of a scholarly review and examination of the whole Bible, a plan he did not live to complete) and the unfinished Lighthouse of Sacred Wisdom, part of that potentially enormous project of Biblical commentary of which his Genesis was the start.30 Rosweyde describes Del Río’s last weeks. As a result of representa28 29

30

Aldhelm: Investigations Book 6, Chapter 2, Section 1, Question 1. Husband and wife: Investigations Book 4, Chapter 1, Question 3, Section 2. Revisions: Investigations Book 5, final sentences after Question 41. Universities’ debate: see W. Behringer, Witchcraft Persecutions in Bavaria, Cambridge: Cambridge University Press, 1997, 230–246 (background) 247–262 (debate) 262–266 (Del Río’s opinion). The posthumous publication of A Little Sponge for the Flux (1609) aimed at Scaliger, was robust in the manner of many contemporary contributions to scholarly debate intended for winning the argument less by scholarship than by forceful expression of an opposing point of view, and its tone and language do Del Río little credit. The title gives a notion of

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tions Del Río made to Acquaviva, he was summoned back to the Netherlands, a call he reluctantly obeyed in the summer of 1608. He left Valladolid on 8th August and reached Brussels, ‘after a rough journey by land and sea,’ on 18th October. The effort, however, had killed him and he died three days later and was buried in the Jesuit church in Leuven. He was half-way through his fiftyeighth year.31

2

Investigations in Context

The final decades of the sixteenth century saw an increase in the fear that Satan’s activity in the world was becoming more deadly and more effective as he pressed forward in his battle for human souls with the help of human beings who, willingly or perforce, surrendered themselves in one way or another to evil and took to magic in particular, either to satisfy an illegitimate curiosity about the working of the created universe, or in the mistaken idea that magic represented a high road to the presence of God during the present life-time, or out of a selfish desire to increase their own prosperity at the expense of other people, or to exact revenge on others, or achieve a reciprocal physical love where it did not exist, or cure illness in non-medical ways, or boost self-esteem by astonishing or frightening others with displays of more than human power. The reasons for this increase in interest were complicated and by no means uniform over the whole of Europe. As Ronald Hutton puts it, ‘The new construct [of witchcraft] took a long time to develop and an even longer time to spread widely, and was a thoroughly late Mediaeval one based on orthodox Christian ideas and preoccupations.’32 We also have to bear in mind the outbreak of savage wars, such as those in the Netherlands, which were partly political and partly religious, and those in France which were profoundly about religion, but no less political for all that. But in addition to France and the Netherlands, Germany, Scotland, Switzerland, Poland, and Luxemburg were all affected by the

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both, since ‘pediculus’ is clearly meant to refer to the tersorium, a sponge or piece of cloth ancient Romans used to wipe their bottoms after going to the lavatory. It would not have been possible to give such a detailed account of Del Río’s life without the pioneering and magisterial work of Jan Machielsen’s Martin Delrio, and I am happy to acknowledge my indebtedness to it. The Witch, New Haven and London: Yale University Press, 2017, 210. See further S. Clark, ‘Witchcraft and Magic in Early Modern Culture,’ in The Athlone History of Witchcraft and Magic in Europe. Volume 4, eds. B. Ankarloo, S. Clark, W. Monter, London: Athlone Press, 2002, pp. 122–137. J. Goodare, The European Witch-Hunt, London—New York: Routledge, 2016, pp. 73–87.

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theory that Satanism was rampant and that older, somewhat more tolerant attitudes to the practice of ‘folk’ magic were no longer appropriate, although they still had their defenders among so-called ‘sceptics.’ So it is scarcely surprising to find that from 1580 onwards, a swell of books dealing directly or indirectly with witchcraft and allied topics began to flood a market-place of willing and fascinated readers. In France, for example, Jean Bodin published his Madness of Sorcerers, Caused by Evil Spirits in 1580, a book which formulated a theory of diabolic conspiracy with particular clarity and recommended a combination of casuistry and severity to combat and then eliminate it. In 1581, Giovanni D’Anania published The Character of Evil Spirits which, among other things, discussed the Sabbat, and Nicolas Jacquier’s Scourge of Heretics Who Cast the Evil Eye appeared in print for the first time, too. The following year saw the Jesuit Petrus Thyraeus’s Theological Disputation on the Appearances of Spirits, and in England Reginald Scot’s Discoverie of Witchcraft. In 1584 Johannes Ewich published his Character of Witches, with a German version the following year, and Bernardo da Como’s Treatise on Witches was reprinted in Rome. In 1585 Hermann Wilcken published his Christian Thoughts and Memories about Witchcraft, and the Polish Jesuit, Marcin Laterna, his A Spiritual Harp which condemned witchcraft in relation to the First Commandment in particular and proved so popular that it was reprinted seven times during his own lifetime. In 1586 Pierre Le Loyer put into print Spectres, his detailed study of ghosts and other apparitions, and the publisher Nicolaus Bassaeus produced a collection of essays, the Theatre of Poisons, on various aspects of witchcraft and magic including, for example, Hermann Witekind’s Christian Memory about Witchcraft in which he argued against the widespread waves of prosecution. This was followed in 1587 by Sébastien Michaelis’s Pneumology, or Discourse on Spirits. In 1589 Leonardo Vairo published a treatise on the evil eye, and Peter Binsfeld, the suffragan Bishop of Trier, his Treatise on the Confessions of Workers of Harmful Magic and Wise Women, partly to answer questions about the reliability of such confessions in the legal process, his conclusion being that they reflected the frightening truth about what witches were capable of doing, and partly to provide practical advice on how best to conduct pre-trial examinations and then the trials themselves. The 1590s were equally productive. In 1590 Pierre Crespet published The Hatred of Satan and Evil Spirits for Humankind, and in 1591 the Jesuit Benito Pereira printed his Against Deceptive and Superstitious Practices, by which he meant principally magic, interpretation of dreams, and astrology. In the same year, Johann Gödelmann published his Treatise on Magicians, Workers of Poisonous Magic, and Witches. Cornelius Loos’s Genuine and False Magic, which

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got him into serious trouble with the ecclesiastical authorities, received partial publication in c.1592, in 1593 Konrad von Anten published Gynaikolusis, which was about the testing of women for witchcraft by subjecting them to the coldwater ordeal, and in August 1594, Thomas Stapleton delivered an important lecture to the Academic Assembly of Leuven, outlining twelve reasons for linking heresy with the rise of witchcraft.33 In 1595 Nicolas Rémy, an experienced provincial French lawyer, published The Worship of Evil Spirits which was partly a learned compilation of evidence from ancient and modern sources about harmful magic and its practitioners, and partly a detailed account of witchcraft in practice, drawn from his own experience as a judge and from court records which he plundered for illustrative anecdotes and instances. Giovanni Battista Codronchi, a physician, published his treatise on Illnesses Caused by Poison and Poisonous Magic in the same year, as did Girolamo Menghi his Manual of the Practice of Exorcism. in 1596 Bernardo da Como’s Treatise on Witches was reprinted yet again in Rome, and in 1597 James vi of Scotland’s Daemonologie, written in about 1591, received its belated publication; and Henning Grosse published his Magic, or Wonderful Stories about Ghosts and the Appearances of Spirits, while in 1598 Petrus Thyraeus returned to the printing-press with a detailed examination of ghosts, spirits, and other such phenomena in his Infested Places. The century was rounded off by the publication in 1599 of Pierre de Bérulle’s account of the demonic possession of Marthe Brossier the previous year, and A Discourse on Lycanthropy by Sieur de Beauvois de Chauvincourt. The seventeenth century began in 1602 with Henri Boguet’s Discourse on Workers of Magic, a combination of a manual for the conduct of witch-trials and Boguet’s accounts of his personal experience as a judge in southern Franche-Comté during the previous decade; a French translation of Juan Maldonado’s lecturenotes on angels and evil spirits was published in 1605, and the year before Del Río died saw the appearance of Philipp Elich’s Daemonomagia: ‘An Erothmatic Little Book on the Wicked Deeds of Evil Spirits’. Del Río’s Investigations into Magic, therefore, appear at the tail-end of a notable burgeoning of interest in all aspects of the intrusion of the spirit-world into the physical, not merely that represented by witchcraft, and his attempt to survey the whole field exhaustively is typical of his intellectual ambition—one thinks of his unfulfilled plans for Biblical commentary, for example—and of his wish to make sure that his survey would leave no gaps for others to exploit or arguments he had not pre-visaged and circumvented with a ready, crush-

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On Stapleton, see J. Machielsen, ‘On the confessional uses and history of witchcraft,’Magic, Ritual, and Witchcraft 13.3 (Winter 2018) 381–407.

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ingly detailed answer. His use of Latin for this purpose was an obvious thing to do—it was the language par excellence of international intellectual debate— but was also symbolic. The Universal Church was under spiritual attack and so the universal language in which its truths were preserved and handed down the generations would be the instrument wherewith to combat its multifarious enemies. France in particular, however, quickly developed the habit of writing in the vernacular, its foremost demonologists appealing, at least initially, to a French rather than an international audience, although Latin translations certainly followed before too long.34 Scotland and England, too, and to some extent Germany, also concentrated their fire on local manifestations of occult phenomena. But most others turned their attention to a wider readership, and for this Latin was still considered essential. Churchmen, particularly Jesuits and Dominicans, were, as one might expect, engaged in defending Christianity, but so were other professional men such as physicians and lawyers, Catholic or Protestant, as the case might be. The former were intrigued by the causes, apparently non-physical, of behaviours or symptoms which bore resemblance to forms of physical ill-health, the latter by the conduct of trials in which the details could be difficult or near-impossible to prove in the normal way, by the legality of methods used to produce such proof, and by the question of whether magical activity in general could genuinely constitute an offence in the legal sense of the word at all. Del Río himself, however, was quite clear about what lay behind these current problems. ‘Nothing,’ he says in his prologue to the whole Investigations, ‘has spread this disease more quickly and more copiously throughout England, Scotland, France, and the Spanish Netherlands than the dreadful plague of Calvinism,’ and although he acknowledges that ‘philosophers, experts in the law, and theologians’ had all written about the subject, he maintains that they had done so with one eye on their own particular field of expertise whereas, ‘I, if I may say so, have been well versed in all three disciplines over a long period of time,’ the implication being that he was well qualified to take a broader and therefore more devastating view of the present situation. His approach in Investigations is unremittingly combative on the side of the Catholic faith. Even when he refers to the Guezen (‘beggars’) people actively resisting Spanish rule in the Spanish Netherlands, he concentrates, not on their politics, but on

34

See further T. Chesters, Ghost Stories in Late Renaissance France, Oxford: Oxford University Press, 2011, 66–72 and more generally Wiep van Bunge, ‘The use of the vernacular in early modern philosophy’ in J. Bloemendal (ed) Bilingual Europe: Latin and Vernacular Cultures, Examples of Bilingualism and Multilingualism, c.1300–1800, Leiden—Boston: Brill 2015, 161–175.

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their religion. ‘[They eat] up everything like locusts with their Calvinism, their Lutheranism, and their Anabaptism.’ We readers therefore know where we are, because regardless of the self-fashioning motives which Jan Machielsen quite rightly sees in Del Río’s literary corpus as a whole, Investigations is at once a call to arms, a dissection of the religious enemy, and a set of proposed means for the complete overthrow of the Devil’s plans for the subversion of humanity and it is therefore perhaps no accident that Investigations begins and ends with superstition, ‘an elusive and slippery term,’ as Euan Cameron observes.35 2.1 Book 1 Book 1, chapter 1 starts with St Isidore of Seville’s etymology of the word and Book 6 ends with twelve admonitions to confessors, the last of which begins, ‘The Devil is accustomed to violate the sanctity of prayers with many attendant superstitious practices.’ This theme, amounting to a preoccupation, is no accident. ‘Superstition’ was how Satan lured his victims into his clutches, and it was a complaint common to the various Protestant denominations that Catholicism either was inherently or had become a form of organised superstition in itself. Condemning superstition, therefore, was for Del Río not only an essential blow against the Devil, but also one in defence of the Church, her teachings, and her rituals. Book 1 is devoted to magic, which Del Río begins by providing various terms for magical practitioner in Hebrew, Greek, and Latin, fairly typical of him in his editorial mode, although other writers on magic did something similar, as can be seen from Johann Weyer’s Conjuring Tricks of Evil Spirits Book 2, chapter 1. Lambert Daneau discusses the meaning of the word ‘sorcier,’ Reginald Scot two Hebrew terms, and Niels Hemmingsen begins his treatise, Advice on How to Avoid Magical Superstitions (1575) with some brief etymologies, but no one is more thorough or, indeed, more comprehensive than Del Río.36 He then divides magic into two broad categories he calls ‘natural’ and ‘artificial’ and, after a brief look at the supposed early ‘founders’ of magic, he turns to his two categories, by the first of which he means magic connected in one way or another with the physical universe. He subdivides it further into what he calls ‘operative’ and ‘divinatory,’ and then starts to examine the connection between magic and astrological influences upon human beings. (As we have seen, he will have learned at least some basic astrology along with mathematics while he was a student in Leuven under Jan van Ostaeyen). This leads him to discuss the 35 36

Enchanted Europe, 4. It is perhaps noteworthy that Heinrich Institoris’s Hammer of Women Who Work Harmful Magic does not offer such definitions. Nor does Paolo Grillando.

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power of the mind, especially as it is expressed through the imagination—that is, the faculty of creating images or storing those given to one by an external agency—and therefore the ability of some people to affect others via invisible forces streaming out from them in the form of touch, sight, vocal sound, or breath, which either affect someone else directly or through a physical object such as a cloth. (This gives Del Río the opportunity to contradict claims made by the present English monarch, or claims made on her behalf, that she could cure scrofula by touch. She cannot, of course, says Del Río, because she is a heretic). But claims made by others to be able to cure by touch are either dubious or depend on the curer’s having made a pact with an evil spirit, a conclusion which brings him to ‘instrumental,’ that is, ‘instrumental’ magic. By this he means magic done via some kind of human agency and includes automata and conjuring-tricks of various kinds, but also magical drawings or pictures which put their creator’s intentions into operation via the power of an evil spirit often using astrological influxes to transmit that power. Astrology then brings Del Río by one train of thought to numbers and by another to music, especially as it appears in the sing-song voice of someone chanting an incantation, and thence to the magical creation or consecration of various kinds of amulet. He ends Book 1 with several chapters on alchemy which, however, have something of the air of being tacked on to his over-all discussion of magic, even though he does try to fit it into the scheme of the first Book by saying that if gold is produced, but is not genuine, it belongs to the class of conjuringtricks, and if gold is produced and is genuine, ‘it may then be being effected with the help of an evil spirit.’ He does a competent job, as one might expect, in offering an etymology of the word ‘alchemy,’ and some of the early history of the technique. Then, however, he seems to realise the scale and complexity of the subject he is trying to discuss—‘[It] involves many questions, and if I wanted to discuss them with any accuracy it would be the work, not of a single section, but of an entire book’—and yet he plunges headlong into the arguments generally made for the genuineness (or not) of the gold produced by this method. He comes to the conclusion (a) ‘that this way of making gold is not contrary to the nature of things,’ and (b) ‘that this kind of effect does not surpass the power of Nature,’ but that (c) if a human being successfully imitates in his laboratory the immensely long processes of natural transformation of one metal into another, he is either fortunate in the success of his assiduity, or he has been assisted by an evil spirit. A review of alchemical literature tells Del Río that some people may indeed have been successful, in spite of the presence of frauds and cheats and hucksters, and he concludes that alchemy is not a practice suitable for the poor and ignorant, who often attempt it, but for ‘natural philosophers’ who are better educated and better resourced and there-

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fore know what they are doing. He ends with a brief discussion about whether alchemy is a legal or illegal activity—it depends on why it is being practised, is his conclusion—after which he bows out with what sounds almost like a sigh of relief. ‘But this is enough about a subject which is not a topic of constant conversation everywhere’.37 2.2 Book 2 The second Book is the longest of the six. It deals with magic involving evil spirits and is treated in thirty Questions, the first of which asks if there is such a thing and the second deals with its origins. Del Río concludes that there is no such thing as ‘white’ magic and that therefore magic of the type he is describing must be ‘black,’ and hence undesirable and, in fact, forbidden. He then proceeds to the essential condition which makes such magic operative, namely, a pact, explicit or implicit, with an evil spirit, and describes the various signs which indicate that an individual has made such a pact. He asks a series of questions anent the kind of powers claimed by magical practitioners as a result of this pact. Are the effects they produce ever genuine, what kind of effects are they, and does history have anything to tell us about these? What sort of control, if any, do magicians have over the natural order of things and the law of the universe? Since the natural order of things obviously includes animals, as well as humans, one has to ask if magicians can control them by non-natural means and whether they can go as far as to create monsters; and this in turn leads Del Río into a discussion of whether non-physical entities such as evil spirits can perform physical acts such as sexual congress with human beings and so produce children. He concludes that children can indeed sometimes be produced this way, but that because the evil spirit has used a human male’s sperm (having none of his own) the resulting child will be the offspring of a human father, not the evil spirit. Sex with spirits brings the discussion to the indiscriminate copulation said to take place during a Sabbat and thence to questions related to aspects of the Sabbat itself. The first is the old chestnut about whether people are transported there physically or only in imagination. Del Río hedges to some extent but concludes, sensibly enough given the premises

37

To be fair to Del Río, he covers very well a subject which was highly technical and far removed from his usual fields of expertise. The association he makes between evil spirits and alchemy had also been made long before his day and continued to be made during the sixteenth century. See F. Klaassen, ‘Curious Companions: Spirit Conjuring and Alchemy in the Sixteenth Century,’ in Knowing Demons, Knowing Spirits in the Early Modern Period, eds. M.D. Brock, R. Raiswell, and D. Winter, Basingstoke: Palgrave Macmillan 2018, pp. 145– 170.

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from which he is working, that such a physical transvection is possible but does not necessarily happen every time or merely because the witch says or thinks it does. If it is possible for evil spirits to carry physical bodies from one place to another in a physical environment, what else are they theoretically and actually capable of doing? Can they, for example, change the body of one species into that of another? Here Del Río deals with another of the standard questions about witches—their ability to metamorphose from their own human shape into that of an animal—and again comes to a cautious conclusion. Such change is possible, but one must always be prepared to make reservations about individual claims and bear in mind the possibility that the individual is mistaken, or that the metamorphosis is nothing more than an illusion or a conjuring-trick. The next questions are connected, but somewhat loosely, to this general topic, although there is no particularly direct thread leading from one to the next. It is as though Del Río were taking the opportunity to clear up one or two disparate points before pursuing his principal theme again. Can magicians and evil spirits make animals talk, and can evil spirits have certain long-term effects on human beings, such as enabling them to go without food or sleep for a very long time, change one sex for the other, or restore youth to an old man? But then Del Río embarks on an allied topic which had long interested him—appearances of the dead. This involves his discussing how much power or influence an evil spirit, or Satan himself, can have over someone’s soul, and is followed by a long historical discourse on appearances of the dead, real or apparent, from the first century ad onwards. Since some such appearances may be deceptive, the result of illusions created by evil spirits who themselves may be as varied as the illusions they create, Del Río asks how it is possible for an evil spirit to make itself visible when it is by definition a non-physical entity. Finally, he summarises his arguments by asking whether the Devil actually can make a human being rise from the dead, and whether magic has any power over evil spirits, the answer to this second point being that even if a magician seems to be exercising control over an evil spirit, the spirit may simply be pretending to let him do so, or the magician is using a more powerful evil spirit to control one less powerful. The same caveat, however, applies to this as to the former. With Book 2, the first volume of Investigations comes to an end. It closes with something of a cliff-hanger: ‘This is enough about magic [as a whole]. Let us proceed to harmful magic.’ Whether the division of the whole treatise into three separate volumes was Del Río’s idea or that of his publisher is therefore neither here nor there. Readers of the first volume were promised more of a subject which was undoubtedly most topical at the time and bound to attract a learned public whose appetite for such things was being catered for, as we have

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seen, during the 1580s and 1590s. Hence they were kept waiting, even if they did not have long to wait, from the Easter book-fair until the Michaelmas book-fair in Frankfurt in 1599. 2.3 Book 3 Book 3 is divided into two separate, but related parts. The first deals with maleficium, that is, harmful magic and the physical objects through which it operates, and the second with superstitious practices which are clearly connected with and dependent on the former. Del Río did not originally intend to return to the subject of superstition but changed his mind as a result of discussing malefice, a thorny topic, as he acknowledges. ‘I add this second part because it occurs to me that there are a few, less intractable things to be said on that subject.’ When it comes to harmful magic, he is forthright—‘I am not arguing whether it exists or not. I take for granted that it does’—and thus he launches into his review of it. Harmful magic, he says, can be discussed under two headings, ‘intention’ and ‘efficient cause.’ The first is self-explanatory, the second refers to a combination of three factors which are always present in any such act: (a) God permits it to happen (b) the magical operator wilfully consents to receive the assistance of an evil spirit in carrying it out, and (c) he or she co-operates with the evil spirit in the operation of the act. First, then, he examines the malefice which sends people to sleep. This relates especially to witches who want to roam undiscovered or to thieves who use it to make their breaking and entering houses easier for them, and under this heading Del Río discusses the so-called ‘hand of glory,’ the hand of a corpse which has been treated and set alight to guide both witches’ and thieves’ paths without their being detected. Next Del Río turns to philtres, ‘anything which causes or is intended to cause someone to fall in love and be drawn into the madness of Venus.’ He begins, as he often does, with various words for such things and historical examples of their use, before noting how harmful, i.e. poisonous, some of them can be because of their ingredients, quite apart from any magic which might inform them. He goes on with antidotes and remedies. Some, which depend on natural substances to work entirely by natural means and do people no harm are licit, and if one has any doubts about this, including the suspicion that they are mixed up with superstitious belief or practice, one should avoid them altogether. Next Del Río discusses what he calls hostile malefice, that is, magic harmful in itself which is intended to inflict serious mental, emotional, or physical damage on another person. This maleficium he divides into separate kinds. The first is the evil eye whereby harm is done by a simple look or glance. The popular view of this—that sight can be infected by the imagination of the looker and thus do harm—Del Río dismisses as a fairy-tale and notes that physicians

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in particular are agreed on this. Natural philosophers, on the other hand, offer a more sophisticated explanation, that the effect of the evil eye is or can be caused by ‘some poisonous property lodged in the decayed humours or vicious temperament of the person who is doing the looking’ and is communicated to someone else via the arousal of the first person’s vital spirits which infect the nearby air and thus the infection spreads until it comes into contact with a second person’s eyes: whereupon it enters them and so the damage is done. Del Río has his reservations about this, based on his reading of Alonso Tostado. Infection, in any physical sense, can apply equally well to transfer between other parts of the body, but this is not called ‘the evil eye.’ Etymology shows that the Latin word for it, fascinatio, is derived from a Greek word which refers (a) to envy and (b) to a certain way of seeing, and this therefore shows that the phrase should be limited to an action of the eyes motivated by malice. The simple fact, however, is that the evil eye achieves its intended effect because an evil spirit uses it to express his own innate hostility towards and envy of the human race, but unfortunately some educated opinion has gradually been overtaken by superstition and assimilated itself with popular ignorance. This discussion leads on naturally to veneficium, ‘poisonous magic in the proper sense of the word.’ It works by someone’s ingesting food or drink in which poisonous substances have been mixed, or being smeared with them, or inhaling them, the substances being the vehicle whereby an evil spirit does the actual work of harming. Again, Del Río has certain reservations. He does not believe that poisonous substances possess so much power in and of themselves that they can work through several layers of clothing, for example, and in these cases, he says, ‘I recognise an attack by the Devil because of a pact, not the power of the poison.’ He is also not convinced that enchanted weapons can kill simply because they have been enchanted and is certainly not convinced that the crime of picking pockets and cutting purses can be classed as one of hostile magic. Other examples follow—those of magically inducing an abortion, creating difficulties in giving birth, or drying up a mother’s milk—but are interrupted by a section perhaps more logically associated with enchanted weapons rather than the administration of poisonous substances. This section finds room for ‘magical’ archers and image-makers, the former depending on an evil spirit’s help to make their aim unerring, as do the latter, ‘those who make images which they either stab with needles, melt in the fire, or break in pieces.’ Having illustrated both types with many historical examples, Del Río then returns to the notion of poisonous infection and discusses illnesses caused by an evil spirit. The spirit does this in various ways, by increasing the amount of black bile in someone’s system, for example, thereby inducing melancholia (an illness both

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physical and emotional) or by causing people to vomit up large, solid objects (which serve as a sign of demonic interference) although in some cases there may be a natural, or near natural, explanation. Del Río finds, however, that a popular explanation for this phenomenon is unbelievable, namely, that an evil spirit stretches the body’s passages, opens them, inserts an object, closes the passages, and then opens them once more when he wants the patient to expel the object. This, of course, is all in reference to demoniacs, humans possessed by one evil spirit or several, although Del Río goes on to distinguish between those individuals who are under demonic attack from the outside (obsessed) and those taken over completely (possessed). But then he returns to the topic suggested by abortion and birth and discusses impotence—‘there is no malefice more common than this these days’—caused by the man’s being ‘bound’ and thus incapable of sexual intercourse either with one woman or with many, although he may be impotent with one and potent with others. There are, says Del Río, several possible causes: hatred, suspicion, slander, illness in one of the couple or in both, mental images hostile to the performance of the act, the vital spirits’ being prevented from making their way to the penis, the drying up of fertile semen, erectile disfunction, or when the woman is too small to allow the man to enter her. In other words, impediments may be entirely physical or originate in a mental or emotional incapacity, and while the former may be entirely (but not necessarily) natural, the latter may well have a preternatural cause, and incompatibility stemming from mutual dislike or hatred certainly falls into this category. Del Río rounds off this particular section of the Book with a slightly strained connection between adversely inflamed feelings and the actual magical destruction of property by fire before going on to consider the kind of people liable to be attacked by workers of harmful magic. ‘Anyone’, of course, is one possible answer, but small children are a common target, and evil-doers rather more frequently than good people. Some judges are exempt, but only if they are personally just and virtuous. In all this, Del Río emphasises the essential part played by God’s permission—God allows sacred objects to be misused and abused in magic, for example, in order to punish wicked priests and clerics— but in general terms He allows the Devil to run riot (within bounds) for two principal reasons: (i) to show human beings that they can overcome evil if they put all their faith and trust in Him, and (ii) so that humans thereby have an opportunity to increase their store of virtue and become more aware of the truth of the Church’s teachings. (This also throws into relief the falsity of what heretics believe and do). God may also allow evil spirits to attack people as a punishment for their sins—arrogance, envy, lust, inflicting pain on others, attacking the true Faith, blasphemy, cursing or invoking evil, usury, lack of pity

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for the poor, contempt for holy things, sacrilege, and despair—and to afford them an opportunity to be drawn to repentance. Having considered these points in detail, Del Río brings the first part of Book 3 to an end, postponing his discussion of how people can legitimately counter all these acts of harmful magic until Book 6, and turns to a review of superstitious practices which may appear to be merely foolish, since they are meaningless in themselves, but actually contain the danger of providing an entrée for an evil spirit so that he can suborn the individual who uses them and turn him or her to evil. These practices are of various kinds, but they all have in common the expectation of personal benefit gained by illegitimate means. They include such things as the use of magical images or incantations with the hope of effecting the cure of an illness; the abuse of prayers and the wearing of relics for a similar purpose; the observation of omens, or of particular times for carrying out ordinary actions such as gathering herbs, on the grounds that specific times are more propitious for this activity than others; and many actions intended to ward off illness or bad luck. (Del Río spends a whole section here attacking the work of a fifteenth-century writer on exorcism, Felix Hämmerlein, whose treatise he clearly regards as intellectually and doctrinally slipshod). Book 3 then ends with a section which appears to have been tacked on in order to include material he has either not used earlier or which has come his way too late for him to be able to graft it into place with any degree of elegance, largely a gallimaufry of the kind of superstitious behaviour he has just been describing. 2.4 Book 4 Book 4 is devoted to divination which, as Del Río points out, can mean somewhat different things, such as prediction, foreknowledge, prophecy, conjecture, and foretelling. He begins with prophecy and its manifestations in the Bible, starting with a discussion of the Urim and Thummim, jewels on the High Priest’s breastplate. As he frequently does, Del Río examines the etymology and meaning of these terms before expanding his investigation into other aspects of Biblical prophecy. Next he considers how to tell the difference between a revelation of some future event, which has been sent by God and one which comes from the Devil, a distinction fraught with difficulty, but one which can be made by the individual who is in receipt of it being suspicious of it and putting his or her trust entirely in God. Prophecies, says Del Río, may happen to a good Catholic, but not, for example, to devil-worshippers or heretics, or mad people, or overt and regular sinners. One should therefore take into account both the moral and physical constitution of a person who claims to have received a revelation from God. If the person is a woman, one should be particularly reserved,

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since women are more open than men to being deceived by the Devil, although one should also bear in mind that there are many genuine examples of holy women who have been so graced by God. One also needs to take into account the nature of the revelation itself. If it proposes or encourages actions which are sinful, its origin is clearly demonic; but even if it appears to be recommending things which are religious and proper, one should still be wary in case there is anything untoward or worthless or wicked mixed up in it, or in case what it reveals could have been obtained by purely human means (reading, common sense, intuition, for example) and is therefore not a genuine revelation from God at all. A revelation should also be consistent with other proven revelations and not contradict them or turn out to be at odds with them, and finally, the circumstances of receiving a revelation must also be taken into account and tested—by one’s making the sign of the cross, for example. From prophecy Del Río turns to divination which he sees as a combination of individual cognitive process very much assisted by signals and words coming to the individual from elsewhere. It differs from prophecy on the one hand and conjecture on the other, he says, because it is a particular activity stemming from an individual’s pact with an evil spirit. Divination reveals the unknown past as well as the hidden present and unknown future, although the evil spirit behind it cannot know everything, such omniscience belonging to God alone. He does, however, have the advantage of a better memory and more acute perception than a human being and hence has the ability to make use of these to produce apparently miraculous knowledge of past, present, and future. If, however, the Devil is unable to dazzle and mislead people this way, he resorts to ambiguity if and when he answers questions, and so the underlying presence of the pact which makes divination sinful, superstitious, and heretical, can easily be detected. When invocation of evil spirits is overtly used during divination, it means either that the oracle or prophecy is being made by an evil spirit, or that the diviner is pulling the wool over people’s eyes. Two ways of achieving the latter are the use of ventriloquism and fake trances, and the circumstances under which they can be done often amount to necromancy if an evil spirit in the guise of a dead person is evoked to give the oracle or answer questions. Next Del Río lists various other techniques used in divination, such as hydromancy, crystal-gazing and its variant, onychomancy, the sieve and shears, and the key and the Bible, all of which were commonly practised in Del Río’s day. Observation of omens, however, may be legitimate if it involves no more than sailors’ or farmers’ looking at signs in Nature and predicting weather from them; but it is a different matter if the observation is at all similar to that of ancient augurs, for example, and seeks to divine the future beyond what may legitimately be done from such things as bolts of lightning or the flight of birds.

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The casting of lots is clearly one effective way of duping people, as are yet more methods Del Río lists and describes before turning from enumeration and description to summarising the kind of sin, mortal or venial, involved in these activities. After this, since he has been preoccupied with divination which depends on physical objects to act as media between the diviner and whatever may be the source of the divination, it is not surprising to find him returning to astrology again and a discussion of conjecture based on natural phenomena. Sailors, farmers, and diviners are not the only people to scrutinise Nature in search of an answer to questions involving past, present, and future, of course. Physicians and physiognomists do this, as well as chiromancers, their practice being essentially part of physiognomy. Chiromancy may be licit as long as it adheres to interpretation of the hand to ascertain someone’s general character, temperament, and disposition without resorting to astrology by associating marks or protuberances on the hand with the planets and so going beyond what can reasonably conjectured from Nature alone. Chiromancy is frequently practised by gypsies and this automatically makes it a suspicious and undesirable divinatory technique. Apparent Scriptural allusions to chiromancy are nothing of the kind and are made because people have misinterpreted the text. Interpretation of dreams depends on knowing what has caused the dream and is thus open to misapprehension. A temporary imbalance in a person’s physical constitution, for example, may cause dreams which are then misunderstood as having a different and more significant origin, and hence their interpretation could be entirely wrong. Dreams sent by evil spirits are self-evidently no truthful guide to anything and in consequence the only reason for taking any notice of them is to guard against being misled by them in future. God also sends dreams, of course, but interpretation of them ‘is suitable only for those to whom God has revealed the way to interpret them.’ Del Río returns briefly to the subject of casting lots, which he divides into two kinds. The ‘distributive’ lot, whereby one might choose who should speak first in a lawsuit or decide how an inheritance should be divided, can be licit provided it is done in a God-fearing, just, and peaceable fashion without any hint of superstition or questioning of God’s judgement. The second kind, the ‘lottery,’ is actually part of a legal process conducted under the auspices of the state to decide who can win a prize, and since it is a kind of sale, it must not involve fraud or sharp practice. Finally, Del Río turns to purgation and its various manifestations, particularly those embodied in the ordeal. Canonical purgation involves swearing an oath to testify to one’s innocence of a charge or set of charges and is a perfectly legitimate process, in spite of the objections of François Hotman whom Del Río lambasts as ‘a low-born, pettifogging lawyer,’ before turning

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to a series of purgations in popular use, none of which he wholeheartedly approves. A direct public appeal to God’s judgement is, in effect, asking God to perform a miracle for one’s personal benefit and is therefore undesirable at the least. Ordeal by single combat is prohibited by divine law and Holy Scripture. Proving one’s innocence by carrying a hot coal or a piece of red-hot iron a certain distance and remaining unscathed thereafter has been frequently used in the past—Del Río gives several illustrations of this, including certain people’s miraculous survival afterwards—and a similar use of hot or boiling water, supervised by a priest in a semi-religious ceremony, are contrary to canon law. Ordeal by cold water is preceded by celebration of Mass, after which the person undergoing the ordeal enters a pool or river to see whether the water accepts him, in which case he is submerged, or rejects him, in which case he floats. Practice of this ordeal used to be common but is now forbidden by Papal decree. In parts of Germany, however, it is still used to test the guilt or innocence of those accused of practising harmful magic and, having mentioned this, Del Río turns to a work by Adolf Scribonius which tries to defend the practice and objects to Scribonius’s theory that the efficient cause underlying the water’s rejection of a witch is ‘the character of water which has an inbuilt hatred for female workers of harmful magic, inbuilt by Nature’s creator.’ Del Río objects that while some of Scribonius’s argumentation may be true, he abuses Scripture during the course of it, as does another Catholic lawyer on the same subject, whose arguments Del Río now reviews in detail, demonstrating that he, too, is inadequate as a commentator. After dismissing these two, Del Río offers his own conclusions. (1) Ordeal by water has been forbidden by more than one Pope. (2) This ordeal is a kind of divination and is therefore superstitious. (3) It involves a pact made with an evil spirit. (4) Genuine miracles are never deceptive, whereas this ordeal sometimes is. (5) If the ordeal does not work by Nature or as the result of a genuine miracle, it must have worked as the result of a demonic pact. (6) Not obeying the Pope in spiritual matters is defiance of God. (7) A civil judge who permits use of this ordeal without good and sufficient reason is committing a sin. A last short section listing four other ordeals in popular use seems to have been added here either because Del Río was unable to fit these disparate ordeals into his schema, or because he came across the information too late to be able to weave it into his narrative. A single sentence, dismissive and perhaps a touch weary, ends Book 4: ‘This is what I have to say about all types of magic, and let this be the end of Volume Two.’ No cliff-hanger here or promise of what is to come in the last two Books of the treatise.

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2.5 Book 5 In his introductory letter to Prince Ernst of Austria, Del Río outlines the latent schemata of the whole Investigations in terms of epidemiology: how does a disease begin, how does it progress, and what are the remedies for it? This is not exactly what he has done so far, but he is right in saying that the last two Books will concentrate on remedies—what civil judges should do and take into consideration when faced by alleged crimes of magic, and advice for confessors in a same or similar situation. To the extent that his treatise is a survey and examination of magic in its various forms and guises, Investigations is actually complete by the end of Book Four, but of course it could not be considered properly finished without taking into account the licit and illicit ways it can or should be countered, and in this it is similar to Johann Weyer’s Conjuring-Tricks or, indeed, the last sections of The Hammer of Women Who Practise Harmful Magic., although it is noticeable that while Institoris and Weyer choose to discuss remedies first and end their treatises on civil trial and punishment, Del Río does the opposite. It is also noticeable that Del Río does not take Hammer as a blueprint for Book Five, either. Indeed, he does not refer to it all that much in the whole of Investigations—about two dozen times altogether—and more or less consistently attributes the work to Jakob Sprenger alone rather than to Heinrich Institoris or to both men.38 But, he says, he is well aware of the large number of books available to judges, whose advice may lead to confusion, and the variations in local practice which have led to wayward judicial decisions, and so while claiming to be slightly surprised to find himself returning to secular law after so many years’ absence, he says he will do his best to bring order to his recommendations, for which he will rely on such legal experts as Giulio Claro, Egidio Bossi, Diego de Simancas, and especially Prospero Farinacci, recently published in Frankfurt in 1606. The crime of practising harmful magic is one of mixed jurisdiction and is ‘excepted’ in the sense that it involves things which are peculiar to it and are not dealt with under the general provision of the law. A judge, therefore, must take these into account, knowing that he has a certain leeway when it comes to sentencing those found guilty of this offence. When an investigation is to be initiated, it must first be agreed that an indictable offence has been committed, and this presupposes that an accusation or denunciation has been made. The

38

Del Río speaks overtly of both authors only once, in his Defence, whereas elsewhere he either names only Sprenger or, as in Book 4, Chapter 4, Question 5, Section 2 he speaks of the auctor, ‘the author,’ without naming whom he means. In Book 3, Part 1, Question 4, Section 1 he refers to ‘the German inquisitors,’ and in Book 5, Section 9 to ‘the German inquisitors’ clearly meaning Sprenger and Institoris.

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circumstances of the alleged offence must be laid out specifically along with the evidence intended to prove that the offence has been committed. It is also a requirement that the accused person should not already have been acquitted of the offence by some other court or been granted amnesty by his or her prince. The judge trying the case must be competent to do so, which means that because harmful magic is a crime of mixed jurisdiction, he must be learned in canon as well as civil law. The circumstantial evidence relating to the crime must be solid, plausible, and relevant, must relate directly, not indirectly, to the person accused, and the source of the evidence has to be considered. Does it come, for example, from a single accomplice or from several? From a known enemy of the accused? From someone who is under-age? From a man or from a woman? The question of who can be tortured and under what circumstances takes up a lot of Del Río’s argument, and while there are many circumstances which may persuade a judge to order torture and specify whether this should be severe, moderate, or light, it is equally a matter upon which lawyers are not entirely agreed. Establishing the reputation, good or bad, of the accused is also a complex business. The accused’s running away before arrest or trial is one indicator, his or her threatening other people another, and the verbally sworn or written evidence of several individuals—Del Río mentions the figure ten in connection with this—may also prove helpful to the judge in making up his mind on this point. Less compelling and less certain pieces of evidence against someone include being able to have prevented an act of harmful magic and failing to do so; speaking up in defence of someone accused of practising such magic (this is because such people are usually heretics as well); concealing or sheltering magicians or witches; telling lies anent the offence; and being inconsistent or hesitant in giving evidence. Even slighter pieces of evidence are discovering a dead body near the accused’s house, or someone’s lingering near a place where such a crime has been committed, or being found in possession of things which could be used for harmful magic. Del Río, however, dismisses the phenomenon of a corpse’s bleeding in the presence of the accused, and is uneasy with supposed indicators such as the accused’s being ugly, or coming from a notorious neighbourhood, or swearing a lot, or being irreverent or over-religious, or being unable to shed tears during torture, or even having a so-called ‘witch’s mark’. He now turns to the business of laying information and examining witnesses. Listening to witnesses should usually be done by judges or inquisitors and they have the power to compel witnesses to appear before them. Accomplices and people with a bad reputation can be heard, but if they later recant their evidence before they themselves are executed as accomplices, the judges

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should ignore the recantation. If they revoke it before they have been found guilty and sentenced, however, their recantation should be taken seriously. Sworn testimony given in front of a judge is also worth more than testimony given extrajudicially. Excommunicates may be heard in cases of alleged magical practice because their evidence is not excluded in cases of heresy, and cases of alleged magical practice potentially involve heresy. Whether, when, and how to arrest someone against whom such information has been laid should, in Del Río’s opinion, be left to the judge’s discretion. An arrest may take place anywhere, even in church, and a thorough search of the accused’s house must be undertaken. Del Río then considers one or two points which follow the person’s arrest and imprisonment to await trial. The idea that these people can cast the evil eye on the judge is nonsense, but the Devil can certainly visit his followers in prison and do them harm or incite them to commit suicide, so they should not be kept in prison for a long time before coming to trial. When they do come before a court, the question of torture arises. Del Río discusses who can be tortured, under what circumstances, and what superstitions to avoid in connection with this. First, the judge should avoid torture if there is any other way of getting at the truth, but if there is not, he should use his discretion, bearing in mind Paul iii’s Bull which seeks to limit the time and extent of judicial torture. A person cannot legally be tortured more than three times and if he clears himself of guilt during these torture-sessions, he must be released and released without reservation or being required to give sureties. Individuals may be tortured regardless of rank or status, the exceptions being children under the age of fourteen and pregnant women. In respect of superstition on these occasions, one must be aware that magical practitioners may have occult means of keeping silent under torture, but attempts to undermine those ways must not involve superstition of any degree at all, which is why many of the recommendations of The Hammer of Women Who Practise Harmful Magic are undesirable. There are ways of investigating and uncovering the truth other than the use of torture. One is by lying to the accused and tricking him. Del Río says he does not approve of this, although he is ready to accept a degree of equivocation from the judge and actually hedges on the notion of outright deception. Introducing people who will eavesdrop on the accused’s conversation or pretend to be friendly in order to elicit information from him or her is acceptable, but Del Río is still uneasy if this involves inducing the accused to lie instead of telling the truth. Confession settles the question of guilt, provided the confession has not been obtained by force or in any other illegal fashion. Abjuration by the accused of former magical practice is similar to confession, whereas canonical purgation is enough to clear an accused who is labouring

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under a bad reputation and his or her crime cannot be proved. Acquittal means either that the accused has cleared him or herself of the charges, or that they have not been proven. Having dealt with acquittal, Del Río now turns to condemnation and starts, not with the more serious offences, but with the less, such as fortune-telling. This, he says, may well involve an evil spirit and if it does, it also involves heresy. (Del Río gives several examples by way of explanation). Nevertheless, judging this point is not altogether easy and ‘the weight of the suspicion must be balanced by the character of the persons involved and other attendant circumstances.’ From this, Del Río passes on to more serious magical offences, dismissing Johann Weyer’s attempts to distinguish between types of magical practitioner, ‘as if one’s opinion about them should be based on what they are called and not on what they have done.’ Punishment of divination which does not involve heresy may be left to the judge’s discretion. In the case of clerical offenders, punishments range from degradation to exile. If they are heretics as well, however, they can be handed over to the secular arm. Del Río then cites a large number of theologians who support the notion of the existence of a pact between the magical worker and an evil spirit and also that of the reality of physical phenomena such as sexual intercourse between the magician and succubi and incubi, raising hailstorms, and physical transvection, even though in the latter case witches’ defenders claim it happens only in the women’s imagination. Theologians and lawyers are clear that those who make a pact with an evil spirit are heretics. The argument that they are deluded is true only occasionally, and so a judge is right on most occasions to accept the truth of the individual’s confession on this point, whether obtained as a result of torture or not. After all, what does one mean by ‘deluded’ and does being deluded release someone from the moral responsibility of his or her actions? There is too much evidence from all over Europe to doubt that what witches confess they have done is largely no delusion but reality, and physicians offer further proof of this. In coming to a final conclusion about someone’s confession, the judge should take into account who is making it and what confirms their confession. (All kinds of abominable crime have been committed elsewhere and at other times in the world, but the worst is the contemporary crime of witchcraft, particularly as regards the Sabbat.) He must also determine why the accused entered into a pact with an evil spirit and so committed the offences. How were these offences committed, with whose help, and where and when did they take place? In the event that the answers to all these questions involve a pact with an evil spirit, the accused should be executed, even if he or she has not harmed crops or animals or called up the spirits of the dead. The punishment should thus be commensurate with the seriousness of the crime. Execution means, in

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addition, that these people will not have the chance to do harm or further harm, will not provide a bad example to others, and will not themselves suffer greater punishment because they have lived to do even more harm to other people. Del Río now gives further consideration to specific crimes committed by magical practitioners: apostasy, sodomy, murder, and singing incantations intended to curse, and if the practitioners have had direct help from the Devil in committing these and similar crimes, they are no less wicked than assassins and should be punished accordingly. Next he reviews legal arguments over the difference between divination done by clerical offenders only once and without involving apostasy and divination done more than once accompanied by apostasy. The former is appropriately punished by degradation, the latter by burning on the grounds that in the second case they are apostates and heretics. Finally, Del Río gives extensive thought to the canon Episcopi. When did it originate? What is its authority, how great is that authority, and exactly what does the canon mean? He follows this with objections to those who interpret the canon differently and points out that the contemporary consensus of theologians and legal experts is that the canon does not apply to modern witches. These witches willingly traffic with the Devil and yet their defenders try to use the canon to prevent them from being executed. Their influence on the decisions of the courts, royal ministers, and even on princes themselves is baleful. They are thus a danger to themselves and to the state, and are stupid, foolhardy, and presumptuous; moreover, their opinions run counter to what has been shown to be the truth. A few final points. (i) Books of magic cannot be left to anyone in the wills of those who are executed as witches. Such books must be burned. (ii) Those who are to be executed should be allowed to receive holy communion after they have confessed and been given absolution. (iii) As for the burial of the executed criminal’s body, the custom of the region should prevail, but Del Río is in favour of their being given Christian burial if they have confessed and been given absolution before being executed. Here Del Río adds an appendix based on a lengthy letter from Pierre D’Heure who had just read the recent first edition of Investigations in November 1599. A further appendix consists of Del Río’s answers to forty-one questions from Maximilian i of Bavaria, asking advice of various universities and Del Río as a known authority in connection with the prosecution of workers of harmful magic. 2.6 Book 6 Book 6 is addressed to confessors in their role as judges of sins and passers of sentence upon those sins. It begins with a combination of check-list and contents as Del Río lists the kind of thing a confessor should look for in a penitent,

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guides him in the sort of questions he should ask, and issues advice relating to his own conduct in hearing the confession and imposing penance. Del Río then turns to detailed advice and comment. First, he says, the seal of confession must be maintained and confessors must not allow secular judges to worm information out of them anent what a penitent may or may not have said. A priest, however, may reveal details of an actual or potential offence he has been told about outwith the sacrament of confession itself, and in fact he should do so if he is summoned to court as a witness. He may also reveal what he has been told during the sacrament if the penitent gives him permission to do so. Otherwise, the seal of confession is inviolable and a priest who breaks it should be defrocked and imprisoned for the rest of his life. The way the confession is made is important. It must be complete and sincere. Witches scarcely ever make a complete confession, so the confessor must ask detailed questions aimed at eliciting the full truth of their past conduct. He must counteract the Devil’s lies that they will feel no pain during torture or execution, or that they have been too wicked to benefit from confession, or that they will damage their reputation if they confess, and he must not look for signs such as ability or inability to shed tears as indicators of true repentance or hardness of heart, since these are unreliable. He must also make sure that the penitent confesses his or her sins of apostasy, heresy, and idolatry and that the penitent makes restitution for the harm he or she has done. Del Río then ends this section with a technical discussion on whether priests belonging to the mendicant orders have the right to absolve all such cases. Next he turns to the confessor’s role as spiritual physicians and examines the remedies, licit and illicit, which can be or are applied to spiritual illness. He starts by giving a good many examples of superstitious cures and magical remedies. These he takes from Jewish, ancient pagan, early Christian, and contemporary religious and superstitious practice. Those legal experts who think it permissible in civil law to make use of malefices for well-intentioned purposes such as curing illness or warding off storms are mistaken. Divine and Church law forbid anyone to do such a thing. Likewise, in spite of what a number of people say, it is not permissible to go to a worker of harmful magic and seek such a remedy or to ask him or her to remove a malefice, although if it can be shown (as sometimes it can) that the worker of harmful magic can remove a malefice by lawful means, or without having recourse to harmful magic, this may be acceptable. Indeed, one may legitimately use a certain amount of light force to induce him or her to remove it. One may also remove and destroy a malefice oneself, but in doing so one must not expect a miraculous cessation of its underlying harm—that would be superstitious—and one must remember that the Devil is not bound by such tokens and can do harm (God permitting)

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whenever he wishes. Nevertheless, removal and destruction of such a token, as long as one is clear in one’s own mind that by doing so one is making use of someone else’s sin to disconcert the evil spirit and not co-operating with him in any way, is an acceptable and desirable act. This is the opinion of a very large number of theologians from all over Europe, and Del Río provides several examples to support his case and to answer, at length, objections to it. Removal of malefices may or may not provide a licit remedy for hurt or damage caused by harmful magic, but it is not the only one. There are natural remedies, too. Stones, herbs, animal-parts, compound drinks, and suffumigations may all work and Del Río provides many examples, and also lists physical signs exhibited by those suffering the effects of harmful magic, including those of demonic possession. When it comes to these natural remedies, Del Río looks to physicians to provide him with information about those which are likely to be effective, using Battista Codronchi and Frédéric Jamot as two of his principal sources, and quoting from them extensively. But finally he turns to supernatural remedies provided by the Faith and the Church, by which he means principally the sacraments—baptism, the Eucharist, and extreme unction in particular— along with ecclesiastical exorcism, and he provides very detailed illustrations of their effectiveness, including a very long account of a complex, but ultimately successful, exorcistic process carried out by Jesuits for the benefit of a young man of good family from Bratislava between March and June, 1600. Good works, such as fasting, alms-giving, and prayer are also highly effective. At this point Del Río makes a sustained attack on Jacques Auguste de Thou (who had written a poem highly critical of the Church and her ministers) before returning to his subject and discoursing on the power of prayer, especially prayer to the Blessed Virgin, and of the sign of the cross, and of holy water. Other objects blessed by the Church, such as candles, salt, and bread, he says, also play a part in countering harmful magic, as do Scriptural texts worn or carried on the person, and the ringing of a Catholic church’s bells. These remedies attract criticism from heretics, of course, and Del Río ends this part of Book 6 with an extended attack on Johann Gödelmann’s objections to Catholic exorcism in its various forms, and Joseph Scaliger’s questioning the authenticity of Dionysius the Areopagite’s Hierarchy. His pen drips sarcasm and his remarks, as it turns out, were a prelude to further hostilities outwith Investigations. It is, alas, a sour note on which to draw this monument of scholarship and fervid diligence to its close. Book 6 then ends with twelve pieces of advice. These emphasise the reality of evil spirits and the absolute prohibition against making a pact with them; the duty of judges to punish anyone who does so; the grave spiritual dangers of superstition; how confessors can differentiate between the sources of unusual

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phenomena; safe remedies; monition against being over-inquisitive and using magic to help one discover answers to one’s questions; advice against using magical practitioners; advice for exorcists; and a recommendation against the addition of any superstition to one’s prayers. With these Book 6 and thus the whole work comes to a conclusion.

3

Del Río’s Sources

Del Río’s sources are famously extensive, ranging from a variety of Greek and Roman writers, through Holy Scripture and the Fathers of the Church, to authorities and commentators from the Mediaeval period and his own day. The indices of writers included at the end of each of his three published volumes, however, give no notion of this range. The complete list at the end of the 1608 Lyon edition, for example, provides only twelve names, nine of which are Classical—Euripides, Pliny the Elder, Sammonicus, Suetonius, Varro, Vegetius, Vergil, and Ulpian—and one Mediaeval (Marbod of Rennes) and one early modern (Marsilio Ficino). The 1612 Mainz edition, however, does provide an extensive list of his Biblical quotations and references to canon law, along with a list of the names of the many authors he used or to which he referred. If we take for granted that he was familiar with, or able to quote or refer to, a large number of Classical and later antique writers because of his schooling and his interest in Latin tragedy, and that his training first as a lawyer and then as a theologian will have familiarised him with the Church Fathers and Mediaeval legal writers and theologians, we may be able to follow him as he kept up to date with contemporary or near-contemporary publications, some of which he may have met through the citations of a number of learned authors, but many of which seem to represent his own continuous reading. Like any conscientious academic he would try to keep abreast of current publications in order to sharpen and broaden his own teaching, and we can see this to some extent in the books from which he quotes or which he acknowledges as sources of information for Investigations from 1580 onwards, the year in which he started to make the transition from secular lawyer to Jesuit. He had conceived an interest in harmful magic earlier, of course, during his study of Senecan tragedy, when the figure of Medea had made an impression on his consciousness of the darker side of magic, and this initial impulse was logically followed by a wish to examine further the causes of such magic. Thus, he picks up on Jean Bodin’s Madness of Sorcerers, caused by Evil Spirits, Andrea Cesalpino’s Aristotelian Inquiry into Evil Spirits, both published in 1580, and Nicolas Jacquier’s Scourge of Heretics Who Cast the Evil Eye, written

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in 1458 but first published in 1581,39 and follows this thread throughout the 1580s with A Theological Disputation on the Apparition of Spirits, a thesis published by the Jesuit Petrus Thyraeus in 1582, Girolamo Menghi’s Cudgel of Evil Spirits (1584) Valerio Polidori, The Practice of Exorcism (1585) Pierre Le Loyer on ghosts (1586) and Sébastien Michaëlis on spirits (1587). This is accompanied during the same period not only by what Bodin and Menghi have to say about witches, but also by Johann Ewich’s Character of Witches (1585) and Hermann Wilcken’s Christian Thoughts and Memories concerning Witchcraft (1585) although he will have read this in translation, and an early interest in the cold water ordeal (Wilhelm Scribonius, The Examination and Purgation of Witches by Cold Water (1583) and Hermann Neuwaldt, An Explanation of the Purgation or Examination of Witches Thrown into Cold Water 1584.) Del Río also seems to have been collecting information on extraordinary or unusual phenomena, (a posthumous printing of Antoine Mizauld, Nine Hundred Memorable, Useful, and Delightful Things, 1584) and customs related to spirits or magic found in foreign countries (Pietro Bizzarri, History of Persia, 1583, Juan González de Mendoza, History of Very Notable Rites and Customs in the Kingdom of China, 1586, Martin Ignacio de Loyola’s account of his missionary journeys in 1582– 1584 which was published in Rome as part of Mendoza’s history of China, and Cornelius Kempis, Origin, Geographical Position, Character, and Extent of the Frisians, 1588). During the later 1580s and early 1590s, Del Río seems to have extended his interest to prophecy (Juan de Horozco y Covarrubias, True and False Prophecy, 1588) and to the advent of Antichrist (Claude Caron, Antichrist Unmasked, 1589) the themes of which can be tied together by such publications as Pierre Crespet, The Hatred of Satan and Evil Spirits for Humankind, 1590, which more or less equated ancient heresies and modern Protestantism with the Devil, the Jesuit Francisco Ribera’s commentary on the Apocalypse (1590) and hence, perhaps, Tommaso Bozio’s Signs of the Church Against Every Heresy (1591) all of which Del Río had read.40 Magic, however, continued to exert an interest for him, as can be seen from his knowledge of Giambattista della Porta’s extended work on natural magic, which appeared in 1589, and Leonardo Vairo’s book on the evil eye (‘De Fascinatione’) which was published the same year. But more

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Jacquier’s treatise was printed along with Thomas Erastus’s treatise on witches (‘Repetitio disputatio de lamiis seu strigibus’). Del Río knows of the latter, but seems to refer to its French translation, Deux Dialogues, which was published in 1585. Del Río had read other works dealing with heresy and religious war: George Buchanan’s Scottish History (1582) for example, Richard Dinor’s French Civil War published in the same year, and Nicolas Sanders’s English Schism (1585, or the second edition of 1586).

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important to him than either was Peter Binsfeld’s Treatise on the Confessions of Workers of Harmful Magic and Wise Women which appeared in 1589. He cites or refers to him more than 130 times—more than 55 in Book 5 alone—although he does not always necessarily agree with him, since his answer to question 40 at the end of Book 5 (‘Should Binsfeld’s dictum, etc’) is a simple, sharp no. But in 1591 there appeared Johann Gödelmann’s Treatise on Magicians, Workers of Poisonous Magic, and Witches, and the Right Way to Recognise and Punish Them. Gödelmann was a Lutheran and therefore a heretic—not that Del Río was averse from making use of Protestant writers: they were grist to his mill and he gives evidence of being acquainted with Johann Althaus, François Hotman, Denis Godefroy, Pierre Ayrault, Jacopo Brocardo, Richard Dinot, and Jan Malecki, whose religious affiliations ranged from Lutheran to Calvinist—but Del Río does not dismiss him entirely every time he cites him, as in Book 5, Section 11, ‘here I agree with Ponzinibio and Gödelmann,’ although he does go on to say he thinks they are both wrong on a separate point. The following year, however, Cornelius Loos published what he could of his controversial book, Genuine and False Magic, intended to be a rebuttal of Binsfeld’s treatise, and Del Río clearly disapproves of him, although he tries to be kind (‘On whose soul may God have mercy,’ he says in Investigations Book 5, Section 4) before reprinting the recantation Loos was forced to make in Appendix i of Book 5. At this point in his reading, Del Río seems to be preparing to write Books 5 and 6 in particular. He refers to Luis de Molina, Justice and the Law, Fulvio Pacciani, Treatise on the Burden of Proof (both 1593) to Prospero Farinacci whom he much admired and who published his Practice and Theory of Criminal Law in parts between 1594 and 1614, Book 3 of Pierre du Four de Saint-Jolly’s Imperial Ordinances and Daniel Moller’s work on the constitutions of Saxony (both 1595) and Giambattista Baiardi’s additions to Giulio Claro (1597) while relevant to Book 6 are Rodrigo Dosma Delgado, The Authority of Holy Scripture (1594) Giovanni Battista Corradi, Responses to Questions of Conscience (1596) and Jean Chapeauville, Treatise on Reserved Cases (also 1596) and relevant to both is Nicolas Rémy, The Worship of Evil Spirits, published in Lyon in 1595. This probably represents the extent of his immediately relevant up-to-date reading for Investigations by the time he was discussing a title for the book with Justus Lipsius. But there may still have been time for him to have read Luís Froís’s Letters from Japan (Latin edition 1598) Petrus Thyraeus on places infested by evil spirits (1598) and Johann Bökel’s book on magical philtres which appeared in 1599. Publication of Investigations did not stop such reading, of course, but it seems to have slowed it down considerably as Del Río turned his attention almost exclusively to Biblical subjects. We do, however, find him referring to the Jesuit Martín de Roa’s Remarkable Places and Things, and Zaccaria Visconti’s book

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on exorcism (both 1600); Vincenzo Ondedi’s legal text, Decisions and Conclusions (1601) and, from 1604, Giacomo Graffi on decisions of conscience and Tomás Maluenda’s Antichrist, whose criticisms of Investigations riled Del Río into attaching a lengthy defence in the proloquium of the work, dated 1606 and written from Salamanca. This brief review of his reading, which does not include his much wider and more eclectic knowledge of and acquaintance with books published before the 1580s, and the manuscript material he was also able to use, gives some indication of his erudition, but one also has to bear in mind that he did not concentrate only on theologians and lawyers, but included evidence from historians, physicians, missionaries’ reports, personal communications, explorers’ memoirs, and writers on magic and allied subjects, not to mention a broad range of Classical and later antique writers. No wonder, then, that his learning was highly regarded by contemporaries. Pierre de l’Ancre, for example, called him ‘the greatest, the most exceptional, and the best regarded person who has ever written on this subject’.41 Had he actually read everything he quoted or to which he referred? Obviously we must be cautious and not accept it all at face value, but Del Río is very careful to give exact references—the margins of his published text teem with them and many others are incorporated into the text itself—and every so often he recommends further reading as well. It is perfectly true, of course that he will probably have come across multiple references ready-made for his purposes in one or two of the authors he has before him, but in general terms, and with an eye on the way he develops his themes, we can probably say that the impression his work gives of being based on an enormous and unremitting commitment to reading as much as possible on each of his subjects is neither misleading nor mistaken; and when one bears in mind that Del Río had none of the electronic resources available to a modern scholar, was rarely in one place long enough to build up the kind of extensive library he lost by pillage and destruction in 1578 (not to mention being able to afford it): that he had to rely on the inevitably mixed resources of the library of whichever university he was seconded to for the time being, which might well not include the works he particularly needed at any given moment, and that borrowing from another town or city must always have involved a lengthy wait (not to mention the hazards of land and sea travel at the time) his achievement seems all the more remarkable. One feature of Investigations is notable to the modern eye—the lack of personal reminiscences and anecdotes to illustrate the points he was making. In

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Tableau de l’inconstance des mauvais anges et démons, Paris, 1612, 485.

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one sense there was no need for them. Everyone at the time was surrounded in a way difficult for us to understand by overt magical or superstitious practices performed almost without thinking, sometimes (as the Church both feared and warned) straddling magic and near-magic and religion in ways which tended to blur the distinction between them.42 Del Río will not, as far as this is concerned at any rate, have been different from any of his contemporaries and so illustration by reference to his own experience will have been redundant and will not have helped to advance his thesis. What he needed to show was that magic was deeply embedded in the secular world, that it had been so for a very long time, and that it was manifesting itself in a particularly virulent fashion at the present time. Illustrative material immediately relevant to those themes was helpful. Personal anecdotes, by and large, were not. To be sure, there are a few such—the damage to the Church of Our Lady in Douai, the clairvoyant boy in Madrid, the remora fish in Tournai, and one or two others—but they are made en passant and do not form any significant part of his argument.43 In this he is quite unlike, say, Henri Boguet who based his work on his personal experience as a judge, or Nicolas Rémy who expressly explains in the prefatory letter to the reader of his Worship of Evil Spirits that because he had not been collecting the material necessary to write his account, ‘I began to select and record whatever seemed best suited to my purpose from my examinations of accused individuals during the last five years.’ Neither Boguet nor Rémy, however, was constructing the immense structure Del Río had in mind— a monument of scholarship which would at one and the same time answer any and every question anyone might have anent magic and superstition in all their forms, and provide an unanswerable battery of facts which could serve in the defence of the Catholic Church in a world in which heresy and Satanism were rampant, while constructing a new science of demonology and (perhaps incidentally) establish an international reputation for himself at a time when Europe seemed to be particularly rich in scholarship. Personal notes and anec-

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‘Despite the considerable amount of work done in the Council of Trent, there was still nothing like unanimity over where devotion and piety ended and superstition and “vain observances” began,’ Euan Cameron, Enchanted Europe, 220. Even as late as 1860 in largely Protestant Wales, people were still coming in droves to St Elian’s well to ask the saint to injure an enemy. See R. Suggett, A History of Magic and Witchcraft in Wales, Port Stroud: The History Press, 2008, pp. 130–133. Even when he says, ‘After the first edition [of Investigations] I discovered certain things in the Hippocratic Corpus [and] I shall now explain their helpfulness to everyone,’ (Book 6, Chapter 2, Question 3, Section 2) he is making a throw-away remark which is not essential to the flow of his discussion.

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dotes, then, would have been out of place in so serious and lofty a venture.44 This does not mean, however, that Del Río’s individual voice is missing. He has a nice turn of phrase—‘I enjoy listening, teaching, and learning. I don’t like moving the same saw back and forth’—and an effective line in sarcasm— ‘wherever he turns he finds country bumpkins and devoted fans to whom his virtuousness straight away has a perceptible smell, as marjoram has for pigs’45—and he frequently addresses his reader (more than thirty-three times in all). ‘Reader, I think you realise […]. You notice, don’t you, Reader […]. Are you astonished, Reader? […]. Consider, noble Reader […]. [A tragedy] which I shall tell you about later. But please, Reader, bear in mind […]. Do laugh, Reader.’46 Apostrophising the reader is a feature of other writers of the period, certainly, but no one does it quite as frequently as Del Río, or appeals to him in the same personal way. Del Río’s style of doing so turns Investigations into a series of university tutorials in which a knowledgeable, friendly lecturer conveys what he has to say via conversation, stopping at intervals to make sure his student has understood the point, has not misunderstood the point, and is following the thread of the argument, the tutorial being peppered with indications of where the student can find further information. Dry it most certainly is not.

4

The Introductory Poems

It was a frequent custom for a book to be puffed with the help of complimentary poems prefacing its main text, and Del Río has no fewer than five at the start of volume 1 of Investigations, following his diatribe against Tomás Maluenda and the required permissions and privilegia from both secular and religious authorities. The first is in Latin, written by his friend Justus Lipsius and is a short little

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The frontispiece which appears at the beginning of the 1608 Lyon edition of Investigations, for example—probably not Del Río’s choice, but that of his publishers—illustrates the seriousness of its contents by making an appeal to the Biblical knowledge of potential readers. It consists of eleven separate scenes showing Moses, Aaron, Pharaoh, and Pharaoh’s magicians on the right-hand side and Moses and Aaron on the left, engaged in Inflicting, with God’s assistance, various plagues upon Egypt, as described in Exodus, chapters 7 to 11. The Exodus texts figure in treatises on magic and witchcraft at this time, but do not constitute a fundamental text upon which any of the authors base their arguments. It is, rather, a convenient short-hand for an illustration of Good defeating Evil at the behest of God. Both quotations come from Book 6, chapter 3. All these come from Book 2 alone: Question 8; Question 11; Question 14; Question 26, Section 3; Question 26, Section 5; Question 27, Section 2.

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recommendation written in Phalaecian hendecasyllables, a verse-form often used by Catullus, Statius, and Martial. It does its intended job, but is curiously run-of-the-mill, far less complex than the offerings by Rosweyde and Jamot which follow, and not even as enthusiastic as that by Goudanus. It emphasises Del Río’s learning and piety but could scarcely do less. Did Rosweyde think so too? His longer poem, emphasising the history of magic, but ending with an identification of Del Río and the ancient oracle at Delphi, is called a parodia. This indicates that the piece in question is a reply to another piece, perhaps in the same metre, perhaps on the same subject, written in a parodying or burlesque fashion. Rosweyde’s poem is not in the same metre, since it is written in iambic trimeters, so the parodia must be referring to the subject-matter. Could it be that Rosweyde was jealous of Lipsius’s place in Del Río’s affections? In his Life, he quotes from a letter he received from Del Río, asking for his assistance to find out why some of Lipsius’s books were not being published, and saying, ‘I am asking this with some warmth (calide) because I am warmly fond of Lipsius (calide amo).’ Expressions of affection between men were common enough at this period, relayed via the verb amo, commonly translated as ‘I love,’ but referring to a much wider range of affection, but will simply have the force of ‘he is my best friend, we’re like brothers,’ and calide (literally ‘hotly’) combined with this, merely underlines the strong tie of affection, not implying anything like the German ‘schwärm,’ for example. Nevertheless, this phraseology does not preclude the possibility that Rosweyde may have been a little jaundiced by the knowledge of Del Río’s strong affection for someone other than himself and the parodia was a carefully controlled and modulated piece of sniping from the safety of the scholar’s desk. Frédéric Jamot’s contribution is in the loftier style of the dactylic hexameter, a verse-form generally used for epic poetry. It is in Greek with a Latin translation. Jamot seems to have been Flemish. We do not know his dates, but he certainly studied for a while in Paris and was married and had two sons. By profession he was a physician. He was an accomplished writer and translator, producing verse paraphrases of the psalms of David in 1566, a collection of Greek and Latin poems in 1593, and a Parodia Pindarica, an imitation of Pindar’s verse-forms, in 1598. His contribution to the initial verses of Investigations appeared in 1600 in Greek with a Latin translation and was expanded for the Mainz edition of 1603.47 On 1st August, 1600 he sent a lengthy reply to Del Río’s questions about natural remedies for the effects of harmful magic, a reply

47

For the few details we have of Jamot’s life, see T. Schmitz, ‘Les odes grecques de Frédéric Jamot (died c.1609)’ Bibliothèque d’Humanisme et Renaissance 53 (1992), pp. 281– 303.

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Del Río was happy to acknowledge and include in his text of Investigations.48 His poem is slightly odd. He begins with a brief account of how magic began and then turns to the present, describing modern magic appropriately enough, given his profession, as a set of diseases which Del Río, ‘esteemed for his healing skill,’ is beginning to cure by offering this book of his as an antidote. The slight oddity involves the bulk of the rest of the poem which consists of a panegyric of sixteen other named Jesuits who have been and are contributing to the fight against the forces of error and illicit magic. Including Del Río in their number is, of course, a compliment but, apart from the fact that Del Río quotes from or refers to many of them during the course of Investigations, they represent something of a diversion from what one might have thought is the essential point of such a poem—praise for the book and Del Río himself as its author. To be sure, Jamot does return to Del Río at the end of the poem with laudatory remarks for his courage in standing up to evil and says that the Spanish Netherlands will quite rightly sing his praises in the future. Nevertheless, one cannot help wondering whether Jamot did not actually know Del Río except by reputation and so padded out his poem to make it look a more considerable recommendation than it actually was.49 Jamot’s poem is followed by a brief set of iambic trimeters by ‘Juan Gauda’ who may have been a Flemish Jesuit, Jan van Gouda (1571–1630). These do exactly what they are meant to do—entice a potential reader into reading a book about the triumph of good over evil by a scholar of international renown. The mention of the universities of Portugal along with those of the Spanish Netherlands and Spain may simply reflect the extent of Del Río’s reputation but may also indicate that the writer did not know Del Río personally, or at least very well, since Del Río never actually taught in Portugal. The date and place attached to the verses, 4th August, Valladolid, may refer to Del Río’s receiving them, since he was in Valladolid at that time. Volume 2 begins with two laudatory poems. The first is in Greek with a Latin translation, both versions being written in anacreontics, and is by Claude Dausque (1564/6–1644) a Jesuit who first studied and then taught at the college of St-Omer before leaving for Douai in 1601 and Lille in 1603. At some point between 1608 and 1610 he left the Society of Jesus and moved to Tournai where he continued his life as a scholar. It is possible that he and Del Río met in StOmer. Del Río records seeing ignes fatui there at the shrine of the saint, and this is perhaps most likely to have happened while he himself was at Tournai 48 49

Book 6, Chapter 2, Question 3, Section 2. Is it also too unkind to suggest that a lengthy poem and its translation into Latin shows off his own skill in both Greek and Latin verse to good personal effect?

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in 1593–1594. In his piece for Del Río, Dausque adopts the metaphor of disease and cure and makes an even more direct appeal to the potential buyer to purchase and read Investigations—exactly what is required of such a poem. The second, by another Jesuit, Karl Goossen, draws a contrast between lies and truth and emphasises Del Río’s truthfulness, as well as calling him a prodigious genius, a man with an honourable reputation, and someone whose faith has been fully tested. The tone of the poem, however, is combative. It addresses a would-be critic and talks of his making threats to credulous people and of his being an imposter and a liar, ‘arrogant and ungodly.’ It is always possible, of course, that this is simply a literary device, a small piece of rhetoric, allowing Goossen to be different in his approach to the task of praise and puffery, but it is also possible that he is reflecting an incident in which some particular individual offered stringent criticism either of Del Río himself or of Investigations, and that Goossen was leaping to the defence of a fellow-Jesuit.50 The third volume has only one prefatory poem, a Pindaric ode in Greek, with a Latin translation, by Pierre Bouille, who appears as ‘Tertius Bouillius’ in the Lyon edition of 1608. Pierre Bouille was a Walloon Jesuit and is best known for his Brief History of the Discovery and the Miracles of the Image of Our Lady of Foy, found in an oak at Foy, near Dinant in 1609. If anything, his contribution is a greater panegyric of Del Río than any of the others, since it equates Del Río not only more than once with the sun, but implicitly with Christ who descended into Hell to liberate worthy souls from Satan’s clutches, and it is interesting that Bouille should have chosen to mention Book 3 in particular, since this deals with the aspects of magic seen at the time as especially dangerous—the practice of harmful magic and the foolishness of superstition. The poems in general, then, are clever but not particularly distinguished, which is more or less what one expects of the genre. Writing this kind of puff is not easy, since the result is little more than an advertisement for someone else’s work and the writer may or may not be personally acquainted with the author—not that that is necessarily a guarantee of a more interesting result, as can be seen from Justus Lipsius’s lack-lustre contribution. Indeed, perhaps the most intriguing poem is that by Karl Goossen whose inimical approach to a potentially critical reader delivers a somewhat unexpected broadside and enlivens what could otherwise be a somewhat thankless task for both poet and reader. 50

Goossen had entered the Society of Jesus in c.1592 and had roomed with two other novices who were, or were going to be, famous for their verse, Boudewijn Cabeliau and Bernard Bauhusius. See D. Sacré, ‘Een Latijns jezuïetendichter uit de zeventiende eeuw: Balduinus Cabillavius,’ De zeventiende eeuw, 14 (1998) p. 108.

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Investigations’ Later Influence

Investigations, as we have seen, seems to have been conceived during the late 1580s and the 1590s when there was a burst of witch activity in the Spanish Netherlands and not only there, of course, but just over the border in Trier where, between 1581 and 1593, there was widespread prosecution of witches. ‘Since everyone thought the continual crop-failure was caused by witches on account of their devilish hatred,’ wrote Hans Linden, a canon of Trier Cathedral, in his History of Trier (‘Gesta Treverorum’) ‘the whole country wanted them to be eradicated’.51 Del Río himself was in increasingly poor health at this time, being moved by his superiors from university to university, partly to teach and partly to complete his training as a Jesuit, and publishing or preparing to publish his treatise on Senecan tragedy and his collection of essays on the Virgin Mary. However, he had obviously been collecting material relevant to Investigations for a long time, excerpting in the usual manner of scholars whenever he could, or copying out whole manuscripts or at least extensive portions of them, as the opportunity presented itself. By November 1597, he and Justus Lipsius were discussing a title for the work. Del Río appears to have called it On Magic—clearly a working title—and Lipsius suggested Magic, tout court, or Investigations into Magic, which last obviously met with Del Río’s approval. In June 1598 Lipsius sent Del Río his prefatory poem, and the whole work received the approval of the Jesuit Provincial, Olivier Manare, on 6th July that year, along with permission from the Royal Censor, Wilhelm Fabricius, for the publication of the first two Books. In August 1598 Lipsius sent a copy of the manuscript to Jan Moretus who rejected it on the grounds he was too busy to publish it. Wilhelm Fabricius then approved Book 3 on 8th February 1599 at Leuven, and the censor Silvester Pardo, the remaining three Books on 4th (or possibly 17th) 1599. Finally, Del Río dedicated the whole work to Prince Ernst of Bavaria at Leuven on 9th March 1599 and the first two Books appeared for sale at the Frankfurt Easter book-fair that same year, Easter then falling on 11th April. Books 3 and 4 were sold in Frankfurt during the Michaelmas book-fair 1599, the feast-day being 10th or 11th October, and finally Books 5 and 6 appeared at the same fair at Easter 1600 = 2nd April. Apparently, sales were good and another publisher produced a three-volume edition in Mainz that same year, while the initial publisher talked about yet another edition as early as January 1601. Meanwhile legitimate, printings ap-

51

See E. Zenz (ed.) Die Taten der Trierer: Gesta Treverorum. Vol. 7, Trier: Paulinus-Verlag, 1964, p. 13.

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peared in Mainz in 1603, in Lyon in 1604, an unapproved version in Frankfurt and an approved version in Venice in 1606, and then an approved printing in Lyon in 1608.52 Investigations continued to be in demand after Del Río’s death. There was a French translation in 1611 and printings in Lyon in 1613; in Venice in 1616; in Mainz in 1617 and 1624 (quarto); in Köln in 1633; in Venice in 1640 and 1652; in Köln in 1657, 1679 and 1720; and finally, in Venice in 1746 and Köln in 1755. Its influence does not seem to have waned during that time. Even before Del Río was cold, we find Francesco Guazzo pillaging it extensively and shamelessly for his own Compendium of Women Who Work Harmful Magic (1608) and we find it being referred to by the Englishmen Richard Bernard in his Guide to Grand Jurymen with respect to Witches (1627) and Sir Robert Filmer, An Advertisement to the Jurymen of England, touching Witches (1653). Gottfried Spinaeus cited Del Río in his dissertation on whether the sound of church bells can dispel thunderstorms, frosts, ghosts, and the Devil (1661). So did Meric Casaubon in 1668, and John Wagstaffe in The Question of Witchcraft Debated, 1669 and 1691. The Scottish lawyer, Sir George MacKenzie, saw Investigations as a prime source of information on witchcraft (Pleadings in Some Remarkable Cases, 1672; Laws and Customs of Scotland, 1678). In Germany, as Jan Machielsen points out, university students were still plundering it for their dissertations during the 1680s and 1690s;53 Pierre Bayle felt obliged to include him in his Historical and Critical Dictionary (1695–1697) while James Robertson, the defence advocate in the trial of a Scottish witch, Christian Shaw, in 1697, used Investigations to support his arguments on behalf of his client. Copies were to be found in the libraries of Jesuit colleges in Upper Hungary, and he was quoted and referred to frequently by Johann von Flörcke in his treatise, The Crime of Invoking Spirits (1721). We even find that a copy of Investigations was discovered among the effects of a house-painter and practising magician, Dominique Lalanne, in 1760.54 Del Río himself, however, had to contend with mixed receptions. A fellow-Jesuit, Nicolas Suys, (1572– 1619) who spent most of his life teaching the humanities at Douai, wrote a biography under the name ‘Hermann Langevelt,’ which was published by Jan Moretus in 1609. André Baillet, (1649–1706) a French critic and scholar, said of him, ‘One sees, then, a savant who, in the ordinary way of things, is nothing but a show-off’—a not very promising start, although he actually goes on to praise him for his humility in spite of his being so learned.55 Voltaire, 52 53 54 55

See Machielsen, Martín del Río, 227–230. Machielsen, op.cit. supra, 266. For this last, see Owen Davies, Grimoires, Oxford: Oxford University Press, 2009, p. 113. Quoted in Biographie Universelle Ancienne et Moderne, Vol. 11 (Paris, 1814), p. 21.

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however, as one might expect is scathing, calling him ‘procureur général de Belzébuth,’ although this is by no means as dismissive as Joseph Scaliger (1540– 1609) who, in retaliation for Del Río’s dismissal of him, remarked, ‘In my opinion, Del Río knows nothing […]. He is an ignoramus who merely accumulates’. But what are we, without allowing confessional likes or dislikes to get in the way, to make of Investigations? Scaliger’s reference to accumulation is, separated from its personal and religious griping, true enough, in as much as it is a habit, not to say temptation, with scholars to gather as much information as they can in order to nail their point as firmly as possible. Pliny the Elder, too, ‘accumulated’ in order to build his complete picture of the physical world as he conceived it, and he also called his work an ‘investigation,’ (Historia Naturalis). What Scaliger probably had in mind, however, was what he may have seen as the lack of discrimination in Del Río’s gathering. If everything is grist to the mill, the bread may cease to be palatable and, indeed, may turn out not to be bread at all in the end. Nevertheless, expectations of what is required of scholarship do not remain static, and the habit of using verse as well as prose and both from any historical period in order to make a specific point relating to a specific time was by no means peculiar to Del Río. It was a feature of both Mediaeval and early modern scholarship. Del Río merely collected as much as everyone else would have done (and did) to clinch an argument, and then added more than most of his contemporaries were either willing to do or capable of doing. He may have been mistaken in thinking that if more is better, the most possible is better still, but he was not alone in this and his contemporaries were duly impressed, if not necessarily by the argumentation, certainly by the persistence and industry. Nevertheless, Del Río does not entirely lack discrimination and comprehension, as Scaliger seems to be trying to suggest. He may not have tried any cases of witchcraft himself, but he was not a trained lawyer, theologian, and linguist for nothing and quickly sees verbal or linguistic flaws in an opponent’s arguments, pulls them apart, and exposes them ruthlessly, as his (relatively measured) diatribes against William Tooker and Johann Gödelmannn, for example, illustrate. But his over-riding concern is the effect any form of magical practice, overtly allied to superstition or not, is having upon contemporary society. It is a virus which, at best, can make people spiritually ill and at worst kill their souls altogether. It has a long history in human affairs and finds a ready companion and ally in heresy. To combat one is, therefore, to combat both. Combat, however, must be conducted according to the rules set down for it by God and by human beings (hence Del Río’s disapproval of the various forms of ordeal) and so when it comes to witchcraft—that is, the deliberate prac-

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tice of harmful magic by those who have wilfully allied themselves with the Devil—its practitioners should be prosecuted in an appropriate court of law and the provisions of the law observed. A next-generation Jesuit, Friedrich Spee von Lagenfeld, however, vividly demonstrated in his Warning on Criminal Cases (1631) that in practice this was more likely to be honoured in the breach than in the observance, and Del Río himself was not always consistent in his opinion, as his answers to legal questions posed by Maximilian i of Bavaria show. (See Book 5, Appendix ii). These days the reader of Investigations is more likely to turn to Del Río as a repository of an enormous quantity of anecdotal evidence relating to magic, gathered from the ancient world right through to Del Río’s own time, but plundering him for one’s own purposes, while convenient, is actually to do him a disservice. While it is perfectly true, as Jan Machielsen has so magisterially shown, that Del Río was not above fashioning his scholarly work to promote and enhance his own reputation in contemporary society, as far as Investigations is concerned it will miss an important point if he is read in the absence of an awareness and appreciation of his over-arching and deeply-felt intention in writing this particular treatise. Read in extenso and not just dipped into, the book betrays a passion and a deep concern for humanity not altogether hidden by the mounds of diligence which went into its composition, and if nowadays we do not have precisely the concerns which motivated Del Río to write it, we can still be alive to the driven devotion to truth, as he saw it, which kept him chained to his desk for so many years. To the argument that someone’s genuine enthusiasm for a cause we may find passé (or even distasteful or wicked) is no excuse for holding opinions with which we do not agree, one must answer that history is like that and that if one wants history always to be on our side, we are going to be immensely disappointed, because it rarely is. The past does, or should, challenge the presumptions of the present, and Del Río does this for us in a particularly learned and diverting fashion.

Postscript: Conventions Followed in This Translation (i)

Sometimes Del Río does not identify the source, although he usually does so in the margins of his published text, and I have thought it helpful to give a modern reference so that the quotation may be checked more easily. These additions by me appear in square brackets and the information is printed in italics. (ii) The authors he cites are identified with their dates and relevant work or works in footnotes.

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(iii) The titles of works are translated in the text and their Latin or vernacular titles given in footnotes or the bibliography. (iv) Words which appear in Hebrew font in the original are transcribed in the translation.

Note on the Latin Text Martín del Río died on 16th October 1608. This same year a new edition of his successful Disquisitionum magicarum libri sex was published in Lyon. This was then the last edition under the supervision of its author: consequently, its pages contained all the revisions accumulated in the previous editions, as well as the last thoughts of the Jesuit theologian. For this reason, we have decided to transcribe and translate the Latin text of this edition. With respect to the transcription, the general layout of the 1608 edition has been respected. However, in order to facilitate the reading of a work as extensive and dense as this one, a few changes have been introduced. The punctuation of the original text, which is usually consistent, has been generally maintained. I have reduced the presence of colons (they have been preserved only to introduce an enumeration or a concomitant explanation of the preceding text) and replaced them with full stops. Some commas have been eliminated, particularly when they interfere unnecessarily with the development of the discourse. I have also reduced the use of capital letters, preserving them for proper nouns, for groups of authors and for the titles of works. I have made uniform the diphthong “ae” as well as some forms in which the text has some fluctuations. I have left the titles of the works in the same abbreviated form in which they appear in the original text. Only the first capital letter has been introduced when it was not present. In most cases, the reader can easily deduce the full title; if not, the English translation and the page notes offer an immediate clarification. Likewise, the numbers of the books are in Arabic numerals, as in the original text. As for the use of italics, which was abundant in the different editions of the Disquisitiones, I have replaced them with quotation marks only when they were used to delimitate a literal citation. The rest are generally maintained, since they are still helpful for following Del Río’s dialectical argument, which is rich in proofs based on the resolution of objections previously exposed. The distribution of the paragraphs also generally follows the text of the 1608 edition. There have been, however, some little changes due to the fact that the layout of the translation very rarely deviates from the original. In these cases, for the convenience of the reader, a primitive paragraph has been divided, or two or more have been unified into one. The six books of the Disquisitiones are full of literal quotations from a very wide range of authors from antiquity to the author’s own time and so Latin, Greek and, to a lesser extent, Hebrew quotations abound. I have left the text of

© P.G. Maxwell-Stuart and J.M.G. Valverde, 2023 | doi:10.1163/9789004468955_003

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these quotes as they appear in Del Río’s original text. The task of determining the editions he used to cite the referenced authors has not been addressed. Finally, for space reasons I have decided to maintain in the transcription almost all the abbreviated expressions of which the text of the 1608 edition is full. These abbreviations are usually not difficult to understand. I leave here a small list of the ones most used: – cap./c.: capitulum – D.D.: doctores – h.e./h.: hoc est – Ho.: Homilia – I.C.: Iurisconsultus – lib./l.: liber – m.s.: manuscriptus – pag./p.: pagina – q.: quaestio – q.d.: quod est dicendum – resp.: responsio – S.S.: Sacrae Scripturae – sc.: scilicet – v.g.: verbi gratia

Disquisitionum magicarum libri sex

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magicarum disquisitionum tomus tertius seu methodus iudicum confessariorum directioni commoda. Hac ultima cura emendatior, auctiorque. auctore martino del rio societatis iesu presbytero sacrae theologiae doctore, et in academia graetiensi s.s. professore serenissimo principi ernesto archiepiscopo coloniensi et s.r. electori, episcopo loediensi, etc. martinus del rio societatis iesu presbyter s. Hipocratidarum more, quibus prima cura morbi originem, secunda noxae vim et modum, tertia remedium, scrutandi; primo quoque tomo fascinariae luis scaturiginem; secundo cladis magnitudinem acerbitatemque, tertio medicamenta mali proposui; quem laborem non diffido bonis omnibus placiturum, imprimis C.T. quae tanta cura hactenus a ditione sua funestam pestilitatem adnititur profligare. Quam optandum foret caeteros Principes, quibus similis dignitas est, in pari munere non disparem sollicitudinem praestare! Macte animi princeps erneste, insiste victoriae. Lernaeam excetram ne siveris redivivis capitibus repullulare. Nemini magis decet filii perditionis anteambulonibus, in quibus mysterium iniquitatis iam operatur, bellum indicere, quam legitimis successoribus Apostolorum. Petrus Simone, Paulus Elima, Iacobus Hermogene, Ioannes Cynope victo de Magia triumpharunt. Monet Apostolus non temere illis a Deo gladium datum, sed ut Dei ministri sint, vindices in iram eis qui male agunt. T. quidem Cels. ambo gladii crediti, et utriusque fori tribunal commissum. Magis nefarios, aut noxios Ecclesiae aut Reip. fascinariis, nullos arbitror existere, caedes et parricidia illis convivia sunt, elementa turbant, soli pernicies, coeli iniuria, Dei odium, quorum, indulgentia et remissio numerum auget, perfidiam acuit, malitiam indurat. Quem non haec irritent? Me quidem percussere, et Zelus honoris divini impulit hoc quicquid est operis aggredi, et Deo bene iuvante, non segniter, studii in Catho-

Book Five the third volume of investigations into magic, or, the suitable way for judges and confessors to proceed: Further corrected and enlarged by the author, Martín del Río, Priest of the Society of Jesus, Doctor of Sacred Theology, and Professor of Holy Scripture in the University of Graz. To the most serene prince, Ernest, Archbishop of Köln, Elector of the Holy Roman Empire, Bishop of Liège, etc., Martín del Río of the Society of Jesus sends greeting. Like the sons of Hippocrates whose first concern is to find out how a disease begins, the second to explore its violence and get the measure of the harm it does, and the third to look for a remedy, in the first volume I, too, put before you the bubbling up of a plague which does harm with a look [ fascinariae]; in the second, the magnitude and severity of the mischief; and in the third, medicines for the damage. I am confident that this effort of mine will please all good people, especially your Highness who has, right up to the present, taken such great care and exerted himself to put an end to this calamitous plague. How much one would like every other prince in a similar position of authority to exercise a sense of responsibility not unequal to yours in an equal performance of his duty! Gloriously resolute Prince Ernest, press on with your victory. Do not let the Lernaean hydra sprout up again with freshly living heads. It becomes no one more to make war upon the forerunners of the son of perdition, in whom the Antichrist is now busied, than the legitimate successors of the Apostles. Peter, Paul, James, and John triumphed over Simon [Magus], Elymas, Hermogenes, and Cynops, and defeated them and their magic. The Apostle tells us that God has not given them a sword to no purpose, but so that they may be God’s servants, defending [others] against the rage of those who act with evil in mind. Both swords, indeed, and the tribunal of both courts have been committed to your Highness. In my opinion there exist no people more wicked or more damaging to Church and state than those who harm with a look [ fascinariis]. Carnage and murder are food and drink to them. They throw the elements into confusion, they ruin the earth, they insult Heaven, they hate God. Treating them with gentleness and remitting their punishment increases their number, kindles their treachery, and hardens their malice. Who is not angered by this? It has certainly shocked me, and zeal for the honour of God has impelled me to attack it, whatever it takes [to do so], and with God’s good help to complete,

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licam Remp. et erga C.T. observantiae meae monumentum exigere, et alexicaco alcidae me Iolaum adiungere, animo quam viribus maiore, ab illius propensione, non ab horum merito, munusculum velim aestimari, Lovanii 5 Kal. Mart. Anno Saeculari Sextodecimo. catholico lectori, s. Quae tibi videbuntur deesse, si monueris, curis secundis supplebuntur, quae credes errata, si suggesseris, corrigentur, quae superflua merito censebis, tollentur, cum causam docueris. Nihil enim mihi optatius, quam moneri, doceri, iuvari; nihil aeque displicet atque pertinacia, et ingratitudo, illud a te, quisquis ad haec legenda animo puro, mente candida, accedes, cupio impetrare beneficium non occulam, neque obliviscar, condet memoria, sed stilus profundet. Vale. μαρτινω δελριω τῆς μαγείας αποτροπαιω. ειδοσ πινδαρικον Στροφὴ α’ κώλων ιγ’ taΣ μὴν εὐφραίνει μερόπων πραπίδας Ἁμερᾶν αὐγᾶς τε πατὴρ λυποφεγγεῖς ἀχλύας κατουλάδος Ὄρσας. Διοφερὰν δὲ Σοφίας κλυτὸς ἀμπλακιᾶν Ὅτ’ ἐρυκακέει αἴγλα ὁμίχλαν. Δήν γε μὰν Πλουτεὺς ἄθεμιν Κθόνα τυφλώσας ἔπαφε βροτολοιγῷ ψευδέων νυκτὶ, δολορραφέα σὺν γοητείαις Μαγείαν προσσνέων. Ἀλλὰ νέος παλίνοστον Φοῖβος αὐγάν. martino del rio magiae averrunco. ode pindarica. Stropha 1 Oblectat quidem mortalium mentes Dierum lucisque Pater (Sol) ubi luce cassas noctis opacae tenebras dispulit. At vero Sapientiae inclyta lampas (tum laetat animos) cum caliginosam errorum nubem detergit. Diu porro ex legem terram, caecitatem offundens, mortalibus noxiali mendaciorum nocte oblimavit, dolis consutam cum praestigiis Magiam adhalans. Enimvero reducem Sol alter lucem.

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no less zealously, a memorial of my devotion to the Catholic state and of my duty towards your Highness, and to harness myself as an Iolaus to your evilaverting Hercules,1 although my spirit is greater than my [physical] strength; and I should like my little offering to be valued according to what it is trying to do, not according to what my devotion and duty deserve. Leuven, 26th February 1608. To the Catholic Reader, Greeting If you think there is anything missing here, let me know and I shall revise it again and make good the omission. If you believe there are mistakes, draw my attention to them and they will be corrected. If you are right in thinking something is superfluous, explain your reason for thinking so and it will be removed, because I want nothing more than to receive advice, instruction, and help. I find nothing as displeasing as obstinacy and ingratitude. Whoever you are who happens to read this with a pure mind and an unblemished conscience, I want you to do me that kindness. I shall not keep it a secret and I shall not forget it. My memory will store it up and my pen will set it down. Goodbye. To Martín del Río, Banisher of Magic: A Pindaric Ode2 Strophe 1 The father of days and of light (the sun) certainly delights the minds of mortal beings when he has dispelled the futile darkness of night with light. But there can be no doubt that a renowned lamp of wisdom (then makes minds happy) when it chases away the murky cloud of errors. But for a long time, it poured down blindness and covered the Law-less earth with a night of lies which was poisonous to mortal beings, breathing magic coupled with evil intents and conjuring-tricks. But there is a second sun which brings back the light.

1 Iolaus was Hercules’s charioteer and assisted Hercules in the second of his famous labours, slaying the Lernaean hydra. 2 The ode is printed in Greek with an accompanying Latin translation. It is the Latin which is translated into English here. The words in italics, enclosed in parentheses, are explanatory or supplementary comments added to the original Latin text.

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Ἀντιστροφὴ κώ ιγ‫י‬ Δελρίος δέλτῳ προσάγει τριτάτα πάντα μαστεύσας ἀπατάνορα δόλον, καὶ νόω Στυγὸς πέλωρ, ἄταν τε πολύφθορος ἐλαυνέμεν, ἀτρεκίᾳ. Πρέπει ᾦν χάριστα φιλησίμολποι Τρίξυγας Μοῖσαι πλέκεμεν, Χ’ ὕμνον ἀπύειν μελίγαρυν T’ ἄποιν’ ἔργων καλὰ φωτί. Δότ’ ἂρ στεφάνας χρυσοπάστου μᾶλλον ἢ Ἡρακλέει. Πλείονα γὰρ τεράτων νίκησε Μαρτίνος. Ἐπῳδὸς κώ ιέ θεωυ μεν’ συν’ παλάμᾳ ὅγε μὴ μοῦνον ἐς φέγγος ἐκ Κωκυτοῦ τρικάρηνον ἐξεῖλε Σκύλακα. Τοι γὰρ ὀρρωδοῦσα τρεῖς Ἀλίους σέθεν μάλα, Δελρίε, ὄρφναις ἀμμένα εἰν Ἐρέβους κλέπτει τρίμοφον Περσεφόνα λόχον. Εὐμενὶς ἃ δ’ ἧπάρ τε τριττά, καὶ λαφύσσει νιν ὀδάξ, σέ τε θριαμβευέμεν ἂψ νεμεσᾷ. Ἀλλὰ μαιμᾶται τὶς ὅσον Θόρυβος; μῶν τις κεραυνός; Antistropha Del Rius libro tertio pandit, omnem mente perscrutatus deceptorem dolum, ac Stygis monstrum, noxamque perniciabilem (ut ea omnia potis esset) exterminare per veritatem. Quapropter addecet, Musae cantibus gaudentes, viro huic gratias plectere triiuges, et hymnum mellifluum pangere, quae sint elucubrationum praemia decentia. Date igitur corollas auro, vibrantes et discriminatas (quae hunc) magis (decebunt) quam Herculem; Plura siquidem portenta edomuit Martinus. Epodus Dei namque hic adiutrice manu haud ex Cocyto tricipitem dumtaxat in lucem attraxit canem (Cerberum). Etenim multum etiam reformidans tres Soles tuos, Del Ri (tres inquam Disquisitionum Tomos) infernalibus desidens in umbris triformes Hecate occulit insidias. Quin et Erinnyum tertia iecur, ac semet mordicibus exest, tibique (imposturas eius) Triumphati post invidet. Sed enim quis dere-

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Antistrophe To the best of his ability, Del Río has investigated the Deceiver as a whole in a third volume, in order to banish his trickery, the Stygian monster, and exterminate the destructive offender by means of the truth. Consequently, it is fitting that the Muses, who are drawn by three horses and take pleasure in songs, weave together, thanks to this man, and compose a mellifluous hymn, so that these may be the fitting rewards of his labours by lamp-light. Therefore, give garlands shimmering and braided with gold (which will be) more ( fitting for this man) than for Hercules, since Martín has actually overcome more monsters. Epode With God’s helping hand, this man has not merely dragged forth the threeheaded dog (Cerberus) out of Hell into the light. Hecate, too, in great fear of your three suns, Del Río, (I mean the three volumes of ‘Investigations’), sinks down within the shades of Hell and conceals her threefold ambush. But the third of the Erinyes also gnaws upon her liver and is jealous of you, (ah, her deceits!) now that you have triumphed over her. But what is all this sudden commotion? Surely it is not some thunderbolt ( Jupiter) (which is flashing)? It certainly

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Φύγευ, οἶδά γε μάν, Τάν σευ ἱδρεὶας ἀστραπὰν. Στροφὴ β’ κώ. ιγ‫י‬ παν Στυγὸς σμερνᾶς ὀλεσίμβροτον ἔθνος, βλάβαν, σύν τ’ ἀσσεβίᾳμανίαν, τέρθρευμα, καὶ γοητικῶν ἴλαν κακόχαρτον ἄγον. Εἰκεῖ ἅπας τε δόλος, Ἰδὲ λώβη ἀλαθείᾳ. Δαμασθεὶς ἐφθάρη ἰσχύν τ’ Ἀίδας δυνάμει ταυτᾶν σελίδων ἐριφεγγεῖ. Εἰ τ’ ἐπεὶ ματτέμεν ἄρξεται ἴυγγα Κίρκι, καὶ τραπὴν ἄνδρας, σε δείδιξετ’ ἀλεξίκακον δείξαντα μῶλυ. Ἀντιστροφὴ κώ ιγ‫י‬ ei τι μὰν Μήδεια μιγεῖν φθόνιον, Εἰ τι φαρμάσσειν χαλίμα πονέσει Ἢ φίλτρον, ἢ τι τοξικὸν, Εὐώπιδα ἢ τε Σελάναν Ἀφελεῖν ἐπὶ γᾶς, Τρίποδος τ’ ἐρέειν pente multus citur? Num aliquod (Diespiter) fulmen (vibrat?). Nimirum, haud me fugit, tuae devitat Sapientiae fulgetrum. Stropha ii Universa Stygis horridae mortalibus exitium molita turba, secum detrimentum omne, cumque impietate insaniam, praestigias, ac impostorum catervam malis exultatam agens. Cedit una omnisque fraus, pernicies omnis veritati (quam luces). Edomitus vires deperdidit Tartarus fortitudine harum paginarum late coruscante. Ac etiam si post amorum illicia parare Circe aggredietur, vel hominibus varias inducere formas, reformidabit te, qui demonstraris moly malorum depulsorium. Antistropha Quod si autem Medea miscere venenum, vel si impudens venefica nonnulla incantare laborabit philtrum, aut toxicum quodpiam, Phoebemque pulcro aspectu praesignem deducere in terram, vel si e Tripode vaticinium scitari deproperabit

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is. It does not try to avoid me. The lightning-flash of your wisdom does not shun my path. Strophe 2 The entire mob of the dreadful underworld, which has been striving for the destruction of mortals, inflicts every loss on itself and pursues insanity, performs conjuring-tricks, and drives forward its retinue of deceivers, which has been made arrogant with ungodliness. Every single deception, every single act of destruction yields to the truth (which you make to shine). Hell, completely tamed, has lost its strength because the courage of these pages flashes far and wide; and even if Circe later begins to prepare the allurements of love, or to inflict different shapes on human beings, she will be terrified of you who have described the herb which drives away evil. Antistrophe If Medea is going to strive to blend some kind of poison, or if some shameless worker of poisonous magic is going to make an effort to enchant a philtre or any kind of toxic substance, and bring down to earth the moon which is remarkable for its beautiful appearance; or if any messenger is going to make haste to ask a prophecy from a tripod with its lying flame, or even if any soothsayer

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Μάντευμα σπεύσει τις φλογός Ἑρμῆς δολερᾶς, ἑπομένους Κάλχάς τε χρόνους προϊδεῖν. Οἷός τε μηδεὶς ἔσεται τελετᾶν, Ὁππόκ’ ἂν ὀρθᾷ ἐρύκειν μαγγάνων Ἄρχε ἀτασθαλίαν γνώμᾳ διδάσκειν. Ἐπῳδὸς κώ ιέ ΕΣελέγξας ψεῦδος ἐτητημίᾳ. Ἀμφίτε θνατῶν κρεμώσας καρδίαις Μωρίας τέμνεις θεόφρων. Οἱονεὶ Θησεὺς μίτῳ Ἀτραπᾶς πομπῆι, ἕδνῳ Ἀριάδνας. Ἑσπόμενος, Λαβυρίνθου πέφνε δυσπενθὲς τέρας, Κεκροπίαν τε λύων, καὶ ἑπτὰ ἄθα. Πλείονας ἀλλὰ σάεις ψυχὰς Βερέθρῳ ἀφέλωνται. τρωτ’ ἀγακλεέσι, χάριν εὐζῳας, ἀεὶ σεπερανεῦντι σοφῶν Μοισᾶν ἀειροῦσαι πτεροῖς.

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Mercurius aliquis flammae falsidicae, aut etiam si Chalchas quispiam de insequentis aevi futuris hariolari volet, horum omnium voti compos reddetur nullus, quando | sollerte animo imposturarum declinare malitiam auspicaris edocere. Epodus Arguens vanitatem veritate, circumque mentes hominum dependentes stultitias dia sapiens resecas. Qualis Theseus secutus filum viae ducem, dotem iugalem Ariadnae, obtruncavit Labyrinthi luctificum portentum. Athenasque urbem servans, et Pubis septem flores. At vero, tu plures animas servas Barathro eximens, quae illaesae praequam illustribus, causa sospitatis (a te receptae) aeternum pergent, doctarum te Musarum extollere pinnis. tertius boullius.

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will be willing to prophesy about what will happen in a subsequent age, no one who has gratified his wish for all these things is left undisturbed, because you, with your expertise, have started to inform us that the wickedness of deceiving women is decreasing. Epode While you censure worthlessness by means of the truth, may you with your knowledge of God check the stupidities which hang round people’s minds, like Theseus who followed the thread which guided him on his path, and slew the baleful monster, the dowry yoked to Ariadne, and who saved the city of Athens and the seven flowers of its youth. But you actually save more souls by releasing them from the abyss, and they, entirely unharmed because of the health (they have received from you), will go to eternity on the illustrious wings of the learned Muses to extol you. Pierre Bouille3

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3 Pierre Bouille (Petrus Bovillius) (1575–1641) was a Jesuit and had something of a reputation for writing poems in Greek. He is best known, however, for his account of the miracles of the Virgin of Foy, published in 1620.

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martini del rio societatis iesu presbyteri, disquisitionum magicarum liber v. de officio iudicum contra maleficos, sive de processu iudiciario in crimine magiae.

∵ Vere Comicus, Numquam ita quisquam bene subducta ratione ad vitam fuit, Quin res, aetas, usus semper aliquid apportet novi; Aliquid semper moneat, ut quod … Numquam te facturum putabas, id post facias tamen, quis credidisset me, post annorum viginti felix a Tribunalibus ad Religiosam vitam transfugium, ad hanc Masuri rubricam rediturum? Redeo tamen, non ut coram me reus palleat, non ut Quaesitor sedeam, vel ut Quadruplatori aures praebeam, sed ut iudicibus consulam, quibus ex librorum confusa congerie, aut usu vario nimis arbitrariorum hodie iudiciorum, ista minus libuit, vel licuit, ad crimen de quo nunc agimus accommodare. Nam quibus nec ocium deest, nec voluntas, fateor de fontibus ista hausuros non difficulter; haud scio tamen an ea methodo, et ad conscientiae securitatem directione. Certe confessariis, quorum plerique nudi Theologi sunt, in re, ne iuris quidem peritis plane pervia non inutilis opera mea fuerit, quorum potissimum gratia, me diebus aliquot antiquo iterum ludo passus sum includi. Sequar ipsum iudicii ordinem, qui ordinarius, et rem in sec-

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Book v of ‘Investigations into Magic’ by Martín del Río, priest of the Society of Jesus. [This Book deals with] the duty of judges in the prosecution of workers of harmful magic [maleficos], or the judicial process in respect of the crime of magic.

∵ The writer of comedies spoke truly [when he said], ‘No one has ever had such a well-though-out plan for the way his life should go That his circumstances, his age, and his experience are not always bringing him something unexpected, Something which is always warning him that ......’4 What you never thought you would do, you still do later on. Who would have believed that, after twenty years, having deserted the tribunal for the religious life, I should return to Massurius’s law?5 Yet I do return, not so that a guilty person can turn pale in front of me, not so that I can take my seat as an inquisitor, or bend my ears to what an informer has to say, but so that I can counsel judges who, because of the confusion caused by a large number of books, or because of variations in modern practice which have led to extremely arbitrary decisions, have been less willing or at less liberty to apply these [decisions] to the offence with which we are dealing here. To those who lack the time or the will, I say they will not find it difficult to drink up [my advice] from these springs. But I do not know whether they will do so because of the way I explain it, or because I am aiming straight at the untroubled state of their conscience. Undoubtedly my work will not be without benefit to confessors, most of whom are simply theologians without any experience of the law relating to this subject, and will open up the subject to them, and it is thanks to them in particular that I have allowed myself to be shut up in my old school again for a few days. I shall follow the judicial process which is in common use and divide the subject into sections; and I 4 Terence, Adelphoe 855–857. 5 Massurius Sabinus, (first half of 1st century ad), was a highly experienced jurist and wrote an influential treatise on the civil law. Del Río was well-acquainted with the civil law. In 1580, just before abandoning his secular for a religious career, he published in Paris An Exposition of Civil Law, drawn from writers of a variety of digests (‘Ex Miscellaneorum Scriptoribus, Digestorum, Codicis et Institutionum Iuris Civilis Interpretatio Collecta’), with the auctorial designation, ‘Royal Councillor in Brabant’. I am grateful to Jan Machielsen for drawing my attention to this work.

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tiones partiar, et legam vestigia eorum, quos aequius melius, et prudentius de latrunculatoriis hisce locutos arbitrabor, Clarum, Bossium, Simancam, et alios praecipue Prosperum Farinacium insignem, non lectione tantum, sed et usu, Iurisconsultum. sectio i An in hoc crimine servandus ordo et processus ordinarius? Constat inter delictum, crimen maleficium a iuris interpp. differentiam aliquam statui, quae | tamen nostro instituto parum idonea est, ideo, ut solent etiam alii dd. ista pro iisdem nunc sumo et praesuppono sortilegii sive maleficii crimen esse publicum, mixti fori et commune, de quo, si a laico committatur, uterque iudex potest cognoscere, Ecclesiasticus et laicus; item esse crimen nominatum, sive ordinarium; eo sensu, ut habeat nomen certum, et etiam poenam certam iurae praefinitam; esse tamen crimen extraordinarium, et exceptum eo sensu, quod in eo quaedam obtinent peculiaria, et quod sub

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shall choose [to follow] the footsteps of those whom I think have spoken about this kind of brigand with greater fairness, with more advantage [to the reader], and with greater foresight—[Giulio] Claro, [Egidio] Bossi, [Diego de] Simancas, and others, especially Prospero Farinacci, a legal expert distinguished not only for his wide reading, but also for his practice.6 Section 1 Should the usual legal manner and procedure be retained when trying this crime? Interpreters of the law are agreed that there is a difference in standing between an offence, a crime, and a wrongful act,7 but this differentiation is not particularly appropriate for what I intend to talk about, and so in common with what other learned men have said, in this case I understand and presuppose that the crime of divination [sortilegium], or malefice, is one which affects the whole state, is one of mixed jurisdiction, and is widespread, and if it is committed by a lay person the case can be heard by an ecclesiastical or a lay judge. Likewise, [I understand and presuppose] that it is a ‘named’ or ‘ordinary’ crime in the sense that it has a specific name and also a specific prescribed penalty,8 but that it is also an ‘extra-ordinary’ and ‘excepted’ crime in the sense that it has certain features which are peculiar to it and is not dealt with under the general 6 Giulio Claro, (1525–1575), was an Italian legal expert much in favour with Philip ii and Philip iii of Spain. Egidio Bossi, (1488–1546), a Milanese legal expert, published several treatises on criminal law, the most important of which, Various Treatises, was published in Venice in 1562 by his son after Egidio’s death. Five treatises in this collection dealt with the subject of torture. Diego de Simancas, (died 1583), was Professor of Civil Law at Valldolid before becoming Bishop of Ciudad Rodrigo and then of Zamora. He published a work on Catholic institutions in 1552 and on heresy in 1568, which he revised in 1569 and 1573. Prospero Farinacci, (1554–1618), published Two Books on Criminal Theory and Practice in Frankfurt in 1606. Del Río refers to this later. 7 Delictum, crimen, maleficium. These terms are not easy to define. ‘Delictum’ seems, in general, to have referred to an offence other than a capital crime: ‘crimen’ to a capital crime: and ‘maleficium’ for a general act of wrongdoing. ‘Maleficium’, however, was also used specifically to refer to an act of harmful magic. Even in ancient times, these terms were somewhat difficult to define exactly. ‘Sortilegium’, which follows, refers to divination by casting lots although, in company with other words describing workers of magic and their operations, it is capable of extending its meaning beyond the definition suggested by its etymology. 8 ‘Nominatus’ and ‘nomen’ imply that something or someone is well-known, and ‘ordinarius’ indicates that the crime in question is one which is tried in the usual manner, according to the usual rules governing the way a court is organised and the procedure adopted in trying a case before it.

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generali legis dispositione non continetur, ut nec crimen laesae Maiestatis, aut haeresis; ad quod constat maleficium pertinere, quae est sententia dd. communis et verissima; esse quoque crimen enormissimum, gravissimum, atrocissimum quia in eo concurrunt circunstantiae criminum enormissimorum, apostasiae, haeresis, sacrilegii, blasphemiae, homicidii; immo et patricidii saepe, et concubitus contra naturam cum creatura spirituali, et odii in Deum, quibus nihil potest esse atrocius. Pendet quidem a iudicis arbitrio pensare gravitatem delicti, utrum sit atrox, vel atrocissimum. Sed tamen debet iudex hoc arbitrium suum moderari ex circumstantiis delicti, quas optime explicat Prosper Farinacius. Hic vero concurrunt non paucae, primo quod delictum est mali exempli et cuius noxa ut cancer serpit, attestante experientia. Secundo solet nocturno committi tempore, quando minus sibi homines cavere possunt. Tertio committitur clam et proditorie, sive per industriam insidiosam, cuiusmodi homicidia sunt graviora. Quarto solent laedere eos, quibus sunt coniunctissimi: dominos, fratres, patres, liberos, coniuges, sodales, collegas, familiarissimos quosque. Quinto peccant ex consuetudine quadam delinquendi; immo quasi assidue, nam semper malum aliquod machinantur, Diabolo incessanter eas stimulante, et quotidianum pensum exigente, adeo ut vel poculum unum, vel vas aliud, si plus nequeunt, frangere cogantur, | ut testantur Remigius et alii. Sexto quia delicto huic infligitur poena atrocissima, nempe incendii. Septimo quia delictum hoc committunt animo plane deliberato, dolo manifesto, et (ut loquuntur practici) appensate, quod indicat perseverantiam et complacentiam in crimine. Secundo sciendum est quod, licet in poenis irrogandis ampla sit arbitrandi potestas iudicibus concessa, tamen, sine gravissima causa non licet iudici poenam a lege statutam excedere (ratio quia iudicem magis commendat misericordia, quam severitas, ut varii canones et leges docent), nec etiam illi licet eam

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provision of the law, just as the crimes of treason and heresy are not.9 The general and entirely accurate opinion of scholars is that malefice belongs to this latter category, and that it is an absolutely outrageous, very serious, and very wicked crime because in it are combined the characteristics of the appalling crimes of apostasy, heresy, sacrilege, blasphemy, murder and, not infrequently, parricide, unnatural sex with a spiritual entity, and hatred of God, and there can be nothing more dreadful than these. It is up to the judge to give careful consideration to the seriousness of the offence. Is it ‘serious’ or ‘very serious’? The judge, however, should regulate his decision according to the peculiar circumstances of the offence, as Prospero Farinacci explains very well, and there are not a few of these. (1) The offence is one of bad example and the harm it does is testified by experience, as in the case of a gradually spreading tumour. (2) It is usually committed at night when it is more difficult for people to be on their guard. (3) It is committed in secret and in treacherous fashion, or with diligent cunning, murders beings more serious examples of this type. (4) [Perpetrators] usually hurt those to whom they are most closely connected— their lords, brothers, fathers, children, wives, intimates, and colleagues, anyone very close to them. (5) They sin because they are habitual, indeed assiduous, offenders since they are for ever devising some kind of wickedness. The Devil is constantly egging them on10 and demanding they do something every day, to such an extent that, as (Nicholas Rémy and others testify),11 they are forced to break a cup or a jar if they cannot do anything else. (6) The most severe punishment, in other words, burning, is inflicted for this offence. (7) Those who commit this offence do so in full knowledge of what they are doing, with obvious evil intent and, (as practitioners say), ‘with deliberation’, and this indicates that they persevere in their crime and take pleasure in committing it. Secondly, one needs to be aware that although judges have been granted full power to make a decision in regard to imposing penalties, nevertheless a judge is not permitted to exceed the punishment laid down by law without having a very good reason for doing so, (the explanation being that mercy becomes a judge more than severity, as various canon and civil laws tell us), and nor

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10 11

In Roman legal terminology, an ‘extra-ordinary’ crime was one in which punishment was not fixed by an earlier written law but was left to the trial judge’s discretion. Hence it is an ‘exception’ to the generality of crimes for which a penalty has been fixed beforehand. ‘Them’ is here given in its feminine form, eas. Nicolas Rémy (c.1530–1612) was a practising advocate. He is best known for his book on the worship of evil spirits (‘La Démonolatrie’), which was based on his extensive reading of ancient and modern literature on the subject, and local court records of his own time. It was first published in Lyons in 1595 and quickly went through several editions.

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minuere, sed debet iuris rigorem hac in re sequi. Hanc esse D. Tho. sententiam, et communem Iurisconsultorum indubitatam bene probat Farinacius.: Pract. crim., q. 17, n. 5, qui n. 7 etiam docet ex sufficienti causa posse iudices poenas a legibus indictas non solum minuere, sed etiam pro suo arbitrio augere, et hoc sensu omnes poenas delictorum hodie, iuxta facti et personarum qualitatem, ab arbitrio iudicis dependere; idque etiam obtinere, quoad poenas consuetudine vel statuto introductas, et quando iudices iurarunt statuta observare; et quoad poenas omnes tam principales, quam accessorias: et in quovis crimine, etiam haeresis. Quod intelligendum ante sententiam; post sententiam enim non potest iudex poenam augere vel minuere, nisi consulto Principe (excipitur crimen haeresis in quo solo reo ad fidem reverso, potest sententia mitigari et puto hoc obtinere etiam in maleficio, et praxis docet). Saepe enim Iudices quas damnarunt vivas exuri, iubent strangulari vel decollari (ut factum annis superioribus Stabuleti, in causa Ioan. de Vaulx.). Intelligendum secundo, de iudicibus ordinariis et maioribus, et non prohibitis hoc facere, et quando id non vergit in partis praeiudicium; dico ordinariis, quia delegatis hoc non licet, nisi ex causa delegantis principium, vel maioris magistratus, qui delegato suum tribuit arbitrium: dico maioribus, quia minoribus magistratibus id non permittitur, nisi consulto principe, vel nisi causa quae movet sit intrinseca et cohaerens delicto; dico non prohibitis quia si statutum expresse id prohiberet, vel verba statuti poenalis imperative ad iudicem dirigerentur, vel statuto alio caveretur; verba statutorum ut iacent seu ad litteram accipienda; non liceret poenam mutare. Dico quando id non vergit in praeiu-

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is he permitted to make it less. He must follow the letter of the law in this respect. Farinacci gives ample proof that this is St Thomas [Aquinas’s] opinion and the common settled opinion of legal experts. (See his Criminal Practice, question 17, no. 5.) But no. 7 also tells us that judges can, when they have good enough reason to do so, not only lessen the penalties laid down by law, but also increase them at will, and in this sense all penalties attached to offences these days depend on a judge’s decision which takes into account the nature of what has been done and the character of the people involved. This is also true with regard to penalties instituted by custom or statute, even when judges have sworn to observe the statutes. It is also true with regard to all penalties, principal as well as secondary, in any crime, even that of heresy. This has to be understood as referring to before sentencing and after sentencing, and a judge cannot increase or lessen a penalty unless he has taken advice from his prince first. (An exception is the crime of heresy in which alone the sentence can be mitigated after the accused has returned to the Faith, and I think this is also true in respect of malefice. It happens in practice, because judges have often ordered women whom they sentenced to be burned alive to be strangled or decapitated, as happened some years ago in Stavelot in the case of Jean del Vaulx.)12 Secondly, [sic] one must be aware that this refers to judges ordinary and those belonging to a higher court, who are not prohibited from doing this, and when it does not tend to the party’s prejudice. I say ‘[judges] ordinary’ because this is not permissible for judges delegate, except for the [judges] delegate of princes in regard to the particular case which they have been appointed to hear, or for a higher magistrate who has granted to a delegate his power to make a decision. I say ‘to [judges] belonging to a higher court’ because this is not permitted to lower magistrates unless their prince has been consulted first, or unless the case which is producing [the need for such a decision] is concerned with a particular district or community and is closely connected with the offence. I say ‘[judges] who have not been prohibited’ because if a statute were expressly to prohibit [a judge from deviating from statute-penalty], or the wording of the penal statute were telling the judge exactly what he can and cannot do, or if he were being directed by another statute: and if it were directed that the wording of the statutes must be taken literally, as they appear on the page, it would not be permissible for him to change the penalty. I say ‘when it 12

Jean del Vaulx was a monk from the Abbey of Stavelot in the Ardennes. In 1592, he was charged with having murdered many of his fellow-monks by means of harmful or poisonous magic. The trial lasted a long time and caused something of a sensation. Del Vaulx was finally found guilty and beheaded in 1597.

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dicium partis, quia quando poena est applicanda parti laesae, vel denuncianti etc., non potest de hac poena iudex detrahere. Denique iure communi haec potestas poenae arbitrariae, sic limitatur, ut licet ex causa iudex possit poenam mortis, ordinariam commutare in aliam mitiorem, tamen non possit mutare, in aliam mortis vel corporis poenam (ut puta poenam ignis, in poenam laquei, vel flagellationis vel mutilationis membri, vel triremium, aut similes corporis afflictivas poenas), sed debet commutare in poenam carceris, exsilii, pecuniariam aut similes; de facto tamen et consuetudine plerisque in locis contrarium constat obtinere, ut etiam in alias corporis afflictivas, et quascumque mitiores poenas, ex causa, commutare soleant. Secuti in his sumus communiores dd. sententias, ut patet ex Farinacio, d. q. 17. In his autem semper iudici velim ante oculos esse illud extremum, iudicium supremi tribunalis, de quo sunt sequentes rythmi veteres. Iudicabit iudices iudex generalis, | Neque quidquam poterit dignitas Papalis. Sive sit Episcopus, sive Cardinalis, Reus condemnabitur, nec dicetur: Qualis? Ibi nihil poterit quicquam allegare, Neque quid excipere, neque replicare, Neque ad Apostolicam sedem appellare. Neque codicillos Caesaris citare. Reus condemnabitur, nec dicetur: Quare? Cogitate miseri, quid vel quales estis, Quid in hoc iudicio dicere potestis. Hic non erit Codici locus, nec Digestis, Idem erit Dominus, iudex, actor testis.

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does not tend to the part’s prejudice’ because when the penalty is to be applied by the injured party, or by the person making the charge, the judge cannot take anything away from this penalty. Lastly, according to the law as generally held, the ability to inflict a penalty by [a judge’s] decision is limited in such a way that, even though the judge can, in regard to a particular case, change the statutory penalty of death to one which is milder, he still cannot change it into a different capital or physical punishment, such as changing being burned at the stake for death by garrotting, or whipping, or mutilation of a part of the body, or [a term in] the galleys, or similar distressing physical punishments. He must change it to imprisonment, exile, a fine, or something such as these. But there is general agreement that in most places the opposite is what usually happens, with the result that [judges] are in the habit, in respect of a particular case, of changing the [statutory penalties] into others which are physically distressing ones and all of which are milder. (In giving these opinions, I have followed those upon which, as Farinacci makes clear, op. cit. no.17 there is a fair measure of agreement among scholars.) In these circumstances, however, I should always want to have before my eyes that final judgement of the Supreme Tribunal, about which the following old verses are speaking. ‘The Judge of all will judge the judges, And the Papal office will not have power over anything. Whether he be a bishop or a cardinal, The guilty man will be condemned, and no one will say, “What was his station in life”? There he will not be able to instigate anything at all, Nor make any exception, nor reflect upon it, Nor appeal to the Apostolic See, Nor cite Imperial law-books. The guilty man will be condemned, and no one will say, “Why”? Think, poor wretches, what you are, or what kind of people you are, And what you can say in this court of law. Here there will not be a place for the Codex or the Digest. The Lord will fill all the offices—judge, prosecutor, and witness.’13

13

These verses come from a poem on the Last Judgement (‘De Judicio Extremo’) which is attributed to Walter Map. Map, (1140–c.1210), was a Welshman, best known for his Trifling Tales about Courtiers, (‘De Nugis Curialium’).

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His suppositis ad quaestionem respondetur, non arctari in hoc crimine iudicem ad priscas sollemnitates, neque ad ordinem illum publicorum iudiciorum antiquum, quem exolevisse scribit Paulus I.C., sed tamen teneri sequi eum ordinem iuris, qui aequitati naturae consentaneus est; eum praeterea, quem in criminibus privilegiatis sive exceptis, iura communia et particularia locorum praescribunt, quem qui turbet aut negligat, eius iudicialia acta nulla forent; licebit tamen iudici recedere a communi aliorum criminum praxi, in hoc delicto vindicando, quatenus peculiaria quaedam hoc crimen exigit, de quibus postea. Atque ita censeo conciliandas contrarias quorumdam Iuristarum sententias, non satis distincte loquentium. sectio ii Quomodo inquisitio in hoc crimine instituenda? Inquisitionem voco (ut solent I.C.) delicti informationem iudicis officio et auctoritate factam; ea vel est generalis, quando iudex in genere quaerit quis sit delicti commissi auctor vel socius, vel specialis, quando inquirit in personam certam, de cuius delicto certior factus fuit per accusationem, vel per denunciationem, vel alium modum. Ut autem valida sit inquisitio specialis (nam ut generalis sit valida, sufficit commissum esse crimen tale, quod sine sociis committi non soleat) docet Farinacius (qui optime hanc materiam prosequitur) requiri sequentia: primo, ut in genere saltem constet delictum esse commissum quod intellige quoad ea peccata, quae in actum et perniciem externam eruperunt; debet enim constare segetes corruptas, infantem occisum etc., quoad peccata vero intellectus, ut haeresim, vel voluntatis, ut pactum cum Diabolo, comessationes, concubitus cum diabolo et huiusmodi difficillimae indagationis, non solum potest inquiri contra eas, licet non constet de corpore delicti,

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Now that I have made these points, I can answer the question [by saying] that in this crime the judge is not confined to ancient usages, nor to the ancient procedure for conducting criminal trials, [a procedure] which the legal expert Paulus writes had become out of date, but that he is obliged to follow the way which is consistent with natural equity as set out by law. Moreover, general laws and those particular to specific places prescribe the procedure which [is to be followed] in privileged or excepted crimes,14 and should someone upset or disregard it, his judicial acts would be of no account. But it will be permissible for a judge to depart from the common practice observed in other crimes when it comes to punishing this offence, in as much as this crime demands certain things which are peculiar to it, (about which I shall talk later), and so I think the opposing opinions of a number of legal experts who do not express themselves with sufficient clarity can be reconciled. Section 2 In the case of this crime, how should an investigation be organised? I call using the office and authority of a judge to construct an outline of the offence the ‘investigation’, as legal experts usually do. This is either general, when the judge asks in general terms who is the author of or partner in the offence which has been committed, or specifically targeted, when he directs his questions to a particular person about whose offence he has been informed by means of an accusation, or denunciation, or some other way. So that a specifically targeted investigation can be robust—because for a general investigation to be robust it is enough that the kind of crime which is not usually committed without accomplices has been committed—Farinacci, (who gives a very thorough account of this topic), tells us that the following are required: (a) that it be agreed, at least in general terms, that an offence has been committed, meaning one in which wrongdoing has broken out into action and severe harm to others, and one which should fall into the same category as ruination of crops, infanticide, etc., and intellectual crimes such as heresy; or (b) crimes involving the will, such as making a pact with the Devil, feasting [with him], having sex with the Devil, and [offences] of this kind which are very difficult to track down and investigate. An inquiry can be held not only into these women,15 even though 14 15

These two mean more or less the same, namely, that the normal rules do not apply when this particular crime is being tried. Contra eas, once again the specifically feminine pronoun, as is the following ‘found guilty’, (condemnandae).

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sed etiam sunt condemnandae, si dumtaxat dicant se ad conventum delatas, ut bene Arnal. Albert. De agnosc. assert. Cathol. et haeret., q. 25, et Farinac. q. 2, n. 26. Secundo, ut praecedat aliqua saltem accusatio, quod etiam iure Canonico obtinere verius est, sed huic hodie conditioni, generali consuetudine derogatum est. Reputatur enim inquisitio remedium ordinarium, et in omnibus delictis potest ex mero iudicis officio citra accusationem ullam institui; semper tamen necesse est, ut adsint alia aliqua loco accusationis, ut puta denunciatio, fama vel indicia, de quibus statim. Tertio, requiritur quo ad formam, ut inquisitio sit certa, specifica et clara, ita continens delicti qualitates et circumstantias, ut per eius incertitudinem, generalitatem, vel obscuritatem non tollatur reo defensio. Ideo debet in ea explicari locus et tempus, scilicet non dies (nisi citra calumniam, ex | iusta causa, id reus petat, et iudex diem sciat), sed annus ac mensis, commissi delicti, ex sententia veriore et communiore quoad inquisitionem specialem, nam quo ad generalem verius est, hanc expressionem loci et temporis non requiri, in speciali quoque hoc locum tantum habet de criminibus, quae temporis momento committuntur; non vero iis quae successivo tractu, in quibus locus et tempus non potest ita designari, ut sunt crimen laesae Maiest. haeresis, et similia; et ideo idem de crimine magiae dicendum, hanc additionem in eius inquisitionem non esse necessariam. Quod si aliquae qualitates expressae in inquisitione non probarentur; tunc si additae fuerint clausulae de omnibus et singulis, vel se non adstringens, vel meliori omni modo, vel crimen sit non iterabile (ut homicidium in eandem personam), vel constet ex confessione rei de crimine, vel

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there is no agreement that a crime has actually been committed, but they can also be found guilty if they say merely that they were carried off to a meeting [of witches], as Arnaldo Albertini explains very well in his Understanding the Claims made by Catholics and Heretics, question 25, and Farinacci, question 2, no. 26.16 Secondly, some kind of accusation, at least, should precede [the investigation], and it is also more fitting that this be made under canon law. But as things stand these days, this requirement has diminished by general custom because an investigation is considered to be ordinary practice, and in all offences a judge can, by mere virtue of his office, institute an inquiry in the absence of any accusation. Still, there must always be something else to take the place of an accusation—a denunciation, for example, bad reputation, or circumstantial evidence, (which I shall deal with in a moment.) Thirdly, as far as the form [an investigation should take] is concerned, so that the investigation can be reliable, specific, and clear, the requirement is that it contain the attendant conditions and circumstances of the offence in such a way that the accused cannot defend himself by dismissing [the accusation] on the grounds that it is unreliable, couched in general terms, and unintelligible. It must, therefore, lay out fully time and the place: for example, not just the day—unless, (a case of malicious prosecution apart), the accused has a good reason to ask and the judge knows which day it was—but the year and month in which the offence was committed, because an investigation specifically targeted requires a more accurate and a greater consensus of opinion, since in the case of a general investigation, it is reasonably true to say that explicit mention of place and time is not required. An investigation specifically targeted, too, takes notice of place only in connection with crimes which are committed on the spur of the moment, but not in the case of those which take place over a drawn-out period of time, when place and time cannot be specified this way—the crime of treason, for example, and heresy, and similar offences. The same, therefore, can be said of the crime of magic—that this additional information is not necessary to an investigation of this offence, because if any obvious distinguishing characteristics [of this offence] were not proven during the investigation, then if the clauses ‘concerning each and every [circumstance]’ were added, or ‘not being guilty’, or ‘in every way better’, or the crime is not one which can be repeated, (such as murder carried out against the same person), or because there is general agreement because the guilty person has confessed 16

Arnaldo Albertini, (1480–1541), was an inquisitor in Valencia and Sicily. He wrote several treatises about the formal definition of heresy. De Agnoscendis Assertionibus Catholicis et Haereticis was first published in Panormi in 1555.

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quando qualitas illa vere delictum non aggravabat, nec alterabat; his casibus reus adhuc esset condemnandus, alias foret absolvendus. Quarto, requiritur praecedere indicia ipsam inquisitionem, quae sententia communior et aequa est contraria vero quorumdam, est periculosa et iniqua prorsus; etiamsi iudex habeat liberum arbitrium, et licet inquisitio ex mandato Principis fieret, nisi tamen Princeps, non ad partis postulationem, sed motu proprio mandasset contra aliquem inquiri, et assereret eum deliquisse, idque ad suam notitiam pervenisse. Qua tamen in re cavendum valde Principibus, ne facile talia mandata dent; facillime enim circumvenitur a delatoribus Principum bonitas atque credulitas, eosque saepe ex nimis credulis facit crudeles, quae vero sint legitima indicia mox videbo. Quinto, requiritur diffamatio seu fama, non ab accusatoribus rei, sed ab aliis quoque hominibus fide dignis, nata. Sed magna hic difficultas oritur circa istud quintum requisitum, an semper necessarium sit famam praecedere, etiam quando alia suppetunt indicia. Nam dd. videntur nimis generaliter loqui, et consuetudo eorum dictis parum consentanea videtur. Putarim posse illos conciliari, ut dicamus: si sint alia indicia sufficientia et legitima, non opus esse diffamatione, ne in speciali quidem inquisitione; si desint illa, omnino requiri diffamationem, quando incipitur ab inquisitione speciali. Sed si incipiatur ab inquisitione generali formata ex mero iudicis officio, tunc non videtur necessarium ut praecedat diffamatio, sicut solet practicari (teste Claro), quia commisso aliquo delicto, hodie iudices non procedunt a speciali contra aliquem inquisitione incipientes, sed a generali informatione et inquisitione, quis illud delictum commiserit? Et tunc sic in genere primum interrogantur testes an sciant quis commiserit? Si negent, an sciant aliquem diffamatum de delicto illo commisso? Et si aliquem huiusmodi testes nominent, tunc contra hunc specialem instituunt inquisitionem, si aliqua adsint nominationi legitima indicia

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to the crime, or when the distinguishing characteristic did not make the crime worse, or alter it, then in these cases the accused should be found guilty. Otherwise, he should be acquitted. Fourthly, it is required that circumstantial evidence come before the actual investigation. This opinion is quite generally held and is fair, but is contrary to that of certain people [who say] it is dangerous and absolutely unfair, even if the judge has a free hand to make up his own mind, and even though the investigation was being made on the prince’s instruction, unless the prince had ordered an investigation to be carried out against someone, not at the request of the injured party, but on his own initiative because he had come by knowledge of the case himself. In this situation, however, princes should be very wary of giving such instructions in a facile way, because the good nature of princes, and their willingness to believe others, is very easily circumvented by informers, and often makes them cruel because they have been too trusting. (In a moment, I shall examine legally recognised circumstantial evidence.) Fifthly, a public accusation or a bad reputation is required—not one coming from or given by those who are prosecuting the accused, but from other people who are worthy of being believed. Here, however, a great difficulty arises in connection with this fifth requirement: is it always necessary for a bad reputation to come first, even when other pieces of circumstantial evidence are present? Scholars appear to talk in general terms, and what they usually do in practice does not altogether agree with what they say. I think it possible to reconcile the two if I say that if there is other circumstantial evidence which is sufficient and legal, there is no need for a public accusation, not even in the case of a specifically targeted investigation. If such evidence is lacking, a public accusation is absolutely required, since that is the starting-point of a specifically targeted investigation. But if it forms the starting-point of a general investigation which was instituted simply on the strength of a judge’s office, it does not seem to be necessary for an accusation to come first, just as it is common practice, (as [Giulio] Claro testifies), that when any offence has been committed these days, judges do not start with a specifically targeted investigation of someone and go on from there, but with a general outline of the facts and a general investigation into who has committed the offence. Then, first of all, witnesses are questioned in a general way about whether they know who committed [the offence]. If they say they do not, [they are asked] whether they know if anyone has been publicly accused of having committed the offence. If witnesses name someone, [the authorities] then institute a specifically targeted investigation of the individual to find out if there is any legitimate circumstantial evidence that the named person is guilty. (This circumstantial evidence takes the place of a public accusation.) If the circumstantial evidence is enough to warrant

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ad inquirendum (quae indicia sunt loco diffamationis); si sufficiant indicia ad capturam, capitur nominatus; si capi non potest, monetur et citatur ad comparendum, et se expurgandum; si non comparet, in contumaciam bannitur, quae omnia esse praxi recepta et iuri rationique consentanea docet optime Prosper Farinac. Et sic posset iudex etiam in crimine magiae procedere per inquisitionem, non attenta diffamatione, in casu quidem proposito. Requiritur au|tem praeterea diffamatio quando iudex procedit ad partis querelam atque accusationem, quae est communis sententia. Non tamen improbabiliter, quis defenderet tum accusationem supplere defectum diffamationis, ut videtur velle Clarus. Debet autem haec fama primo esse orta a fide dignis, et non malevolis personis, vel futilibus: debet esse vehemens, et quasi procedens ex ore partis populi maioris; debet de ea constare per testes, saltem duos omni exceptione maiores particulariter super fama receptos et examinatos. Haec certa sunt ordinarie in criminibus caeteris. Nam in haeresi et laesae maiestatis crimine, quidam limitant; et famam dicunt non requiri, sed revera existimo, etiam in his criminibus idem obtinere, ut fama requiratur, nisi eius loco adsint indicia et praesumptiones, quod satis aperte indicat Simancas, a Prospero in aliam citatus sententiam. Idem ergo censuerim de crimine Magiae. Super infamia autem inquiri potest ad solam denunciationem viri probi, et cum reperta fuerit infamia, tunc potest procedi ad inquisitionem de crimine. Sexto, requiritur ut is, contra quem instituitur inquisitio, non fuerit alias de crimine hoc eodem, per iudicem fori externi absolutus, vel a Principe gratiam delicti obtinuerit, vel etiam de illo non fuerit condemnatus poena condigna delicto, et non leviore; idemque dicendum etiam si absolutus esset a iudice propter defectum accusatoris crimen non probantis, si sit tamen diffinitive absolutus, et non dumtaxat (ut faciendum hoc casu prudenti iudici) ab observatione iudicii. Limita haec primo, nisi qualitas, quae in secunda accusatione vel inquisitione de novo additur diversificet delictum (v.g. ex homicidio in parricidium);

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his being arrested, the named individual is arrested. If he cannot be apprehended, he is warned and cited to appear in court to clear himself. If he does not appear, he is then banished as contumacious. (Prospero Farinacci explains very well that all this is received practice and in harmony with right and reason.) A judge could also proceed this way, by investigation, without waiting for a public accusation, in the case where a crime of magic had been brought forward. A public accusation, however, is required in addition when the judge comes to the complaint or charge [levelled against] one of the parties. This is the commonly held view, but is one which would, not unreasonably, defend [the notion] that a charge supplies the lack of a public accusation, which is what [Giulio] Claro appears to mean. A bad reputation, on the other hand, must first have originated with people who are worthy of being believed, not people who wish the accused ill, or who cannot be trusted. It must be one which is very bad and comes, as it were, out of the mouths of the greater part of the [local] population. There must be general consensus on the subject, expressed via witnesses—two, at any rate, (and there should be no exception to this), who have been brought in and examined in detail about the bad reputation. These are ordinarily fixed [requisites] when it comes to any other crimes. A number of people limit this in the case of heresy and treason and say that a bad reputation is not a requirement, but actually I think a bad reputation is a requirement in these crimes as well, unless its place is taken by circumstantial evidence and presumptions of guilt. [Diego de] Simancas, who is cited by Prospero [Farinacci] in connection with another opinion, makes this quite clear. I should therefore think it is the same when it comes to the crime of magic. An inquiry into a bad reputation, however, can be made merely because someone has had information laid against him by a man of good character, and when a bad reputation has been discerned, then one can proceed to an investigation of the crime. Sixthly, it is required that the person against whom the investigation has been instituted has not been acquitted of this same crime by the judge of a court belonging to another jurisdiction, or has not obtained an amnesty from his prince, or even that he has not been found guilty of the [offence] and sentenced to the punishment the offence deserves and not to one which is lighter. The same must be said even if he has been acquitted by a judge because of a flaw which meant that the prosecution did not prove its case—but only if he was acquitted absolutely, and not merely out of respect for the court, as a sensible judge ought to do in this instance. This is limited (1) unless a distinguishing characteristic [of the offence], which is newly added in a second charge or during the investigation, changes the nature of the offence—from murder to parricide, for example. (2) Likewise,

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item nisi sit crimen mixti fori (ut est crimen Magiae), nam in hoc, si fuit punitus a iudice saeculari non poterit iterum puniri a iudice Ecclesiastico, nisi iudex saecularis minorem imposuisset poenam, quam par erat, et quam iudex Ecclesiasticus potuisset imponere. Si vero ante fuit damnatus a iudice Ecclesiastico, tunc quia in tam granibus criminibus Iudex Ecclesiasticus non potuit punire poena condigna delicto, ut potest saecularis iudex, ideo semper in his poterit iterum conveniri, et damnari abs saeculari iudice, quae verissima, etiam quando loquimur de poena ordinaria et principaliter ad puniendum delictum irrogata. Tertio, nisi collusio et praevaricatio accusatoris, vel primi iudicis intervenerit; tunc enim iterato poterit inquiri. Quarto, si fuerit absolutus vel condemnatus probabiliter et verisimiliter ignorante eo, qui suam vel suorum prosequitur iniuriam, quod procedit dumtaxat si sit grave crimen et magna causa. Quinto, nisi sit absolutus, non diffinitive, sed ab observatione tantum iudicii, vel relaxatus sub fideiussione de representando, vel si purgavit indicia per torturam; his enim casibus poterit, supervenientibus novis probationibus aut indiciis, iterum in ius duci, id tamen intra tempus a iure ad hoc vel consuetudine praestitutum, et iure quidem civili non distinguitur inter eundem et illum accusatorem; ius vero Canonicum id alteri permittit, veteri vero sive eidem accusatori hoc non permittit. Quaeri solet etiam de transactione, quando illa impediat novam inquisitionem vel processum? Breviter ex eodem Prospero respondetur. Si remissio delicti publici sit habita per transactionem | (suppono licitam) cum parte: poterit non ab illa, sed ab alio auctore iterum impeti iudicio (quia sententia facit ius quoad omnes, non autem transactio), multoque magis a fisco, et eo requirente poterit iudex adhuc eundem processum prosequi, vel iterum de novo proce-

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unless the crime comes under the jurisdiction of an ecclesiastical and a secular court, (as the crime of magic does), because in this case, if he has been punished by a secular judge, he cannot be punished again by an ecclesiastical judge, unless the secular judge has imposed a penalty which is less than it should be and one which an ecclesiastical judge could have imposed. But if he has been sentenced first by an ecclesiastical judge, then because in such serious crimes the ecclesiastical judge has not been able to punish him the way a secular judge can, with the penalty the offence deserves, it will always be possible for the court to re-convene and have him sentenced by a secular judge. That is perfectly true, in as much as we are talking about the penalty which is usually imposed, and which has been particularly ordained to punish the offence. (3) Unless collusion and an error on the part of the prosecutor and the first judge have interfered, because under those circumstances one will be able to hold another investigation. (4) If he has been acquitted or sentenced in all probability or likelihood without knowing who is doing him or his family and friends harm. This applies only if the crime is a serious one and there is good reason for [his not knowing]. (5) Unless he has not been acquitted absolutely, but merely out of respect for the verdict, or has been set free under surety to appear again [if summoned], or if he has cleared [himself] of signs of guilt while under torture, because in these circumstances, should fresh proofs or circumstantial evidence come to light, it will be possible to bring him back into court. But this [has to happen] within the time guaranteed for this purpose by law or customary practice. Secular law actually does not distinguish between prosecutors, although canon law allows the [recall to be done] by a second judge but does not allow it to be done by the judge who tried him first, or by the same judge. There is a question which is commonly asked in connection with an extrajudicial settlement:17 under what circumstances can it impede a new investigation or trial? Let me give a brief answer which is derived from Prospero [Farinacci]. If a reduction in sentence for an offence which affects the public18 has been made through an extrajudicial settlement, (which I am assuming is a legal one), it will be possible for him to be hauled back into court again, not by the original party, but by a different complainant, (because in all circumstances a sentence [passed by a court] gives the right [for this to happen], whereas an extrajudicial settlement does not); and this is even more true in a case where the Treasury is involved, because when the Treasury requires it, a judge will be 17 18

Transactio, that is, an agreement whereby a controversial matter is settled without going to formal trial. Delictum publicum, as opposed to a delictum privatum, one which affects an individual.

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dere (aliud enim est ius partis laesae, aliud ius reip. laesae) et in criminibus atrocibus haec transactio nihil debet diminuere de poenae ordinariae gravitate. Caeterum si transactio vel compositio facta fuisset cum ipso fisco vel iudice, tunc quia pecunia soluta successit in locum poenae, non posset iterum retrahi in iudicium, vel conveniri reus iste, etiamsi nova supervenirent indicia. Haec regula procedit, primo, nisi alias constaret omnimode de delicto commisso per reum, vel ex facti notorio, vel confessione rei, vel ex probatione iudiciaria; tunc enim non valeret ista per iudicem laicum facta compositio, et esset omnino illicita iudici, si sit facta post sententiam. Dico constaret quia nullae praesumptiones ad hoc sufficerent; dixi per iudicem laicum quia Ecclesiastico iudici permittitur poenam sanguinis in pecuniariam commutare; licebit etiam hoc iudici saeculari, quando reus exciperet de nullitate processus, vel quando iudex aliquam iustam haberet causam recedendi a poena ordinaria, et illam commutandi; dixi si sit facta post sententiam quia si ante sententiam, tunc iudex id faciens ex causa non iusta, peccat, sed valida est compositio; si ex causa iusta faciat, transactio valida est, et iudex non peccat. Secundo, limitatio est si reus primum hoc delictum commiserit, poterit iudex sic componere; non vero si sit homo facinorosus, solitus hoc delictum vel alia patrare; tamen si de facto ante sententiam iudex cum tali facinoroso componeret; verisimilius est valituram compositionem, licet ipse tum peccaret. Tertio, limitatio, dummodo prius cum parte inierit reus concordiam, alioqui hanc praecedens concordia cum fisco iniqua est, et non valet; immo consensus ille partis debet esse expressus et evidens, non tacitus tantum vel dissimulatus. Non valet inquam respectu partis, sed bene respectu fisci transigentis. Quarto, limitatio, si haec transactio foret inita in criminibus, super quibus transigi non potest, ut sunt laesae Maiestatis divinae et humanae, raptus virginum et similia; super quibus ut valeat transactio consulendus primo est ipse Princeps; et his criminibus annumero

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able to carry on with the same trial or begin another one, (the reason being that there is one law when the damage has been done to an individual, and another when it has been done to the state), and in dreadful crimes, this settlement should not lessen in any way the heaviness of the punishment which is usually inflicted. If, however, the extrajudicial settlement or compromise had been made with the Treasury itself, or with the judge, then because the money [the defendant] paid took the place of the punishment, it would not be possible to drag or bring the accused back into court again, even if fresh circumstantial evidence turned up. This rule comes into force (1) unless there was otherwise complete agreement that the offence had been committed by the accused, or because information had been received about it, or because the accused confessed to it, or because it had been proved in court. Under those circumstances, a lay judge’s compromise would not be valid, and it would be entirely illegal for a judge to make one after sentence had been passed. I say ‘[unless] there was agreement’ because presumptions would not be sufficient for this purpose. I said, ‘by a lay judge’, because an ecclesiastical judge is permitted to change capital punishment for a fine. This will also be permissible for a secular judge when the accused is exempt because the trial has been declared void, or when the judge could have some good reason for not inflicting the usual punishment and for changing it. I said, ‘if it were made after sentence has been passed’ because if he does this before passing sentence, the judge who does this without a good reason is committing an offence, but the compromise is valid. If he does this for a good reason, the extrajudicial settlement is valid, and the judge has not done anything wrong. (2) There is a limitation. If this is the first time the accused has committed this offence, the judge will be able to draft the legal text of a compromise—but not if [the accused] is a criminal type who is in the habit of carrying out this offence, or others. But if, as a matter of clear fact, the judge were to make a compromise with such a criminal before passing sentence, the likelihood is that the compromise would be valid, even though [the judge] himself would then be committing an offence. (3) There is a limitation provided the accused has made an agreement with the [injured] party beforehand, otherwise a preceding agreement with the Treasury is unfair and invalid. Moreover, the [injured] party’s consent must be clear and obvious, not merely unspoken and dissembled. (When I say ‘invalid’, it is in respect of the injured party. It is valid in respect of the Treasury which is making the extrajudicial settlement.) (4) There is a limitation if this extrajudicial settlement were to be made in connection with crimes in which one cannot make such a settlement, such as treason against God and against a human being, the abduction of virgins, and crimes such as that. In order for the settlement to be valid, the prince himself

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sortilegium haereticale. Quinto, limita fore invalidam compositionem reo, si iudicis fraus, dolus, collusio aut corruptela intervenisset, vel si metu eam a reo extorsisset. Quoad gratiam delicti factam a Principe, Prosper fuse admodum, sed in hanc sententiam: differre abolitionem ab indulgentia Principis; abolitionem non exstinguere crimen, sed tantum iudicii instantiam, ideo transacta laetitia publica, propter quam Princeps eam concedit, infra 30 dies potest accusator de novo accusare; et ideo hanc non trahi ad crimina enormissima, nec ad omnes personas. Indulgentiam vero Principis fieri cum causa, et crimen exstinguere, quare si princeps alicui gratiam faciat de omnibus delictis, vel generaliter omnibus delinquentibus, de omnibus delictis indulgentiam concedat; talis indulgentia comprehenderet etiam gravissima crimina, et notoria et liquida, et extenderetur ad carceratos quoque et condemnatos. Sit regula: semel a principe gratiam criminis consecutus, non potest amplius ab ullo iudice molestari. | Haec facultas gratiam criminis facienti competit Principibus superiorem non recognoscentibus, aut saltem habentibus regalia iura; item Baronibus et feudatariis, si fuerit illis in investitura expresse concessa; quoad Duces et Marchiones, et Camites, quicquid dicant alii, non puto hanc potestatem accipecere, nisi caetera regalia iura iis concedantur; et sic practicatur in Francia et Hispania, ubi hoc ius soli Regi est reservatum. Non tamen licet supremo Principi pro lubito has gratias concedere. Non potest enim nisi prius parti laesae sit satisfactum. Non potest in homicidio deliberato; hoc enim divino rapugnat iuri; ideo licet in foro externo non sit qui absolutam hanc Principis potestatem impedire possit, in conscientiae tamen foro hoc faciens peccat, nisi id faceret pro bono pacis publicae, vel ob aliam utilitatem reip. maximam. Quod cum de assassinis etiam dd. concedant, existimem ad veneficos quoque pertinere, ut in iis idem ius sit Principi. Rarius tamen potest contingere, ut

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must be consulted first. (Among these crimes I include heretical divination by casting lots [sortilegium].) (5) There will also be a limitation which will render the compromise invalid for the accused if there has been fraud, evil intent, or collusion on the part of the judge, or if bribery has taken place, or if the judge had extorted [the compromise] from the accused by fear. As far as the prince’s amnesty is concerned, Prospero [Farinacci] talks about this at very great length and comes to the conclusion that while the prince’s amnesty which deletes the accused’s name from the list of those charged with the offence means he is not put on trial, deleting his name does not annul the crime, but merely the immediacy of a trial. Therefore, once public rejoicing caused by the prince’s concession is over, the prosecutor can bring a charge again within three days, and in consequence this [amnesty] does not extend to crimes of great enormity or to every individual. But the prince’s amnesty is done for a reason and wipes out the crime, and therefore if the prince grants an amnesty for every offence or grants a general amnesty to all wrongdoers in respect of every crime, such an amnesty would include even very serious, wellknown, obvious crimes, and would be extended to those imprisoned and convicted. The rule, then, must be that once a prince has given someone amnesty, that person cannot be troubled any more by any judge. This ability to grant an amnesty for a crime belongs to princes who do not recognise a superior, or who at least have royal privileges; likewise, to barons and feudatories, if it was expressly granted to them at their investiture. As for dukes, marquesses, and counts, whatever others say I do not think they receive this power unless they are granted every other royal prerogative. This is what usually happens in France and Spain where this privilege is reserved to the King alone. It is not permissible, however, for a higher-ranking prince to grant these favours, because he does not have the power to do so unless satisfaction has been accorded the injured party first, and he cannot [grant such a favour] in the case of premeditated murder because this is contrary to divine law. Therefore, although there is no one in a court belonging to a different jurisdiction who can obstruct the prince’s power, [a prince] who grants amnesty to such a crime commits a sin in the court of his conscience, unless he were to do this for the good of the public peace, or because of something else particularly advantageous to the state. Now, although scholars allow this in the case of assassins, I should think it also applies to workers of poisonous magic [veneficos],19 with the result that

19

Or, simply, ‘poisoners’.

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iusta causa huic gratiae supperat; rarissime quoque legimus bonos Principes hac usos potestate. Carolus v Imp. Agrippae poenam mortis non indulfit, sed, cum is effugisset, exilium irrogavit, et in Francia ille obiit. In eadem Christianissimus Rex Carolus ix eius nominis qui ultimus fuit, Triscalino, ut socios proderet, vitam et libertatem permisit; non sine borum offensione. Fateor si Princeps aliquam huiusmodi invalidam gratiam concessisset, licet illa foret nulla; tamen deberet reus illa usus a iudice absolvi et relaxari, ne sub fidei publicae praetextu decipiatur, et sic practicari in Italia et Hispania docent gravissimi scriptores, apud Prosperum Farinac., qui illos sequitur. Quod puto intelligendum, quoad primam apprehensionem, nam sic semel apprehensus et tunc relaxatus, deberet commonefieri de nullitate gratiae, itaque ut sibi caveret in posterum vel impetraret gratiam aliam; manere enim punibilem et poenae obnoxium, quod si negligeret, posset a iudice capi et puniri. Tunc enim unica illa ratio praxis huius plane cessaret, neque iam dici posset sub fide publica deceptus. Equidem cum lex nulla (quod sciam) huic dicto repugnet, et dd. illi non satis clare proponant an quo ad primam tantum apprehensionem, an quoad seqq. quoque loquantur, et publice intersit delicta puniri; omnino arbitror conscientiis iudicum, quod dico tutissimum fore. Haec de sexto requisito. Septimo, requiritur in hac inquisitione, quod in omnibus actibus iudiciariis, ut fiat a iudice competente, quem constat in hac materia esse tam Ecclesiasticum, quam saeculorem iudicem, item fidei inquisitores, quibusdam tamen casibus, quos bene Simancas ponit. Imprimis quia solent venefici, et Striges fidem Catholicam abnegare, vel saltem ea dicere et perpetrare quae sapiunt haeresim, ideo ab Innoc. viii, Iul. ii, Leone. v, Hadr. vi Pontificibus hoc nego-

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in their case the prince possesses the same privilege. Somewhat infrequently, though, it can happen that a good reason demands that this favour [be granted] in secret, and we also read that very infrequently good princes have made use of this power. Emperor Charles v did not cancel [Heinrich] Agrippa’s death sentence, but when Agrippa fled, he exiled him and he died in France. The Most Christian King Charles ix, who was the last of that name, permitted Triscalinus his life and his liberty in return for his betraying his accomplices, but not without giving offence to good people.20 I maintain that if a prince did grant any unsuitable favour of this kind, even though it would be invalid, once the accused has made use of it, the judge should still acquit him and dismiss him so that he may not be deceived under colour of considering public confidence. The very weighty writers on whom Prospero Farinacci relies tell us that this is the practice in Italy and Spain, but I think this should be understood in relation to the first time [the accused] is arrested because, having once been arrested like this and then released, he ought to be reminded that the favour [granted to him] is worthless, and therefore that he should be wary in future, or procure another favour, since he remains liable to be punished and to pay the penalty, and that were he to fail to do so, the judge could have him arrested and punished. Under those circumstances, you see, the sole argument for the practice would clearly disappear and he could not then be said to have been deceived. Indeed, since no law, as far as I am aware, contradicts what I have said here, and the scholars I mentioned do not explain clearly enough whether they are talking about this in relation to the first arrest only, or also in relation to any arrests which follow; and that it is important offences be punished in public, I think is entirely up to the consciences of judges, and I am saying that this will be the safest thing. (This is what I have to say about the sixth requirement.) Seventhly, it is required that this investigation be carried out by a competent judge, and when it comes to this matter it is generally agreed he should be equally learned in canon and civil law. The same goes for inquisitors of the Faith in certain cases. [Diego de] Simancas explains very well that this is especially because workers of poisonous magic [venefici] and shape-changing witches [striges] usually deny the Catholic faith, or at least say and do things which smack of heresy, which is why Innocent viii, Julius ii, Leo x, and Hadrian vi

20

See Book 2, chapter 12.

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tium inquisitoribus fuit demandatum. De sortilegiis proprie dictis (hoc est divinationibus illicitis) non debent inquisitores fidei cognoscere, nisi sortilegia haeresim saperent manifeste; videlicet si quid impium et haeresim praese ferens admisceretur, vel si crederet sortilegus aliquid divini inesse sorti. Idem dicendum de coniectoribus suspectis reliquis, qui facile in infidelitatem incidunt, vel daemonem adorant, vel cum eo foedus habent, vel credunt | eum futura contingentia certo scire, vel abutuntur sacramentalibus. In caeteros superstitiosos inquisitores fidei, sive facta sint atrocia, sive sint levia, non inquirunt, nisi quando sapiunt aperte haeresim, ut baptizare scienter iam baptizatum, vel baptizare imaginem; quoad superstitiosos vero magos quia (ut ait Ciprianus, lib. De duplici martyrio): “qui magicis artibus utuntur, tacite Christum abnegant, dum cum daemonibus habent foedus.” Vixque fiat ut non vel haereticum quid credant, vel haeresim sapiens faciant; ideo vix unquam incidet ullus talis, quin contra eos Inquisitores possint procedere; et poterunt quoscumque iudices compellere, ut ad se mittant acta contra haereticos huiusmodi magos facta. In omni vero iudice illud commune hic quoque est, ut reus debeat esse subditus iurisdictioni inquirentis ratione delicti, domicilii, vel originis, vel etiam ratione conservationis per decem annos in aliquo loco, et non minoris spacii, idque de delictis tantum commissis alibi durante hoc decem annorum spacio, quia tam longa conversatio domicilii electi rationem habet; operari tamen hoc non potest quo ad delicta prius commissa. Sunt et aliae multae causae tribuentes iurisdictionem, quae in nostra materia minus considerandae sunt, quia vix unquam, ut dixi, Sortiariae nostrae carent haeresi; haeretici vero coram pluribus iudicibus ac diversis iudiciis possunt conveniri, et ubicumque locorum reperiantur possunt a loci iudice puniri ex communi sententia praxi recepta; habet enim haeresis crimen causam in se continuam et successivam, et ideo ubicumque haereticus versatur ibi delinquere censetur, quae ratio in sortiariis efficacissima est, quae vix pedem, sine loci damno et novo crimine, uspiam figunt. Octavo, requiritur in sortilegiis et maleficiis non haereticalibus, nec enormibus ut intra 20 annum a crimine desito, inquisitio instituatur, nam spacio

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entrusted this particular to business to inquisitors. Inquisitors of the Faith do not need to investigate cases of what is properly called ‘casting by lots’, (that is, illicit divinations), unless it is clear that these divinations smack of heresy— if, for example, something irreligious and heretical were mixed up in it, or if the lot-caster were to believe his lot-casting revealed anything it is in God’s province to know. The same can be said about all the other suspect diviners who fall easily into paganism, or who worship an evil spirit, or have a pact with him, or believe it is possible to know for certain what is going to happen in future, or who misuse sacramentals. As for every other superstitious people, the inquisitors do not ask whether what they have done is shocking or trivial unless they detect something which is openly heretical, such as knowingly baptising someone who has been baptised already or baptising an image. But in the case of superstitious magicians [magos] because, (as Cyprian says in his book on martyrs who die twice, ‘those who make use of magical practices silently deny Christ and at the same time have a pact with evil spirits’), it can scarcely ever happen that these people do not believe in something which is heretical, or that they do not do something which is heretical. Therefore, there will be scarcely any person of this kind against whom inquisitors cannot institute proceedings, and they will be able to compel any judges to send them cases brought against this kind of heretical magician. Every judge also agrees on this point—that the accused must come under the jurisdiction of the person carrying out the investigation, either because of the kind of offence he has committed, or the fact that he lives [within the investigator’s jurisdiction], or because he was born there, or even because of his close association with a place within that jurisdiction over a period of not less than ten years. (But because there must be a good reason for his choosing to live in a particular place for such a long time, this must refer to offences he committed earlier.) There are also many reasons for someone to have this jurisdiction, but they are of less importance to the subject I am studying here because, as I said, the lot-casting women [sortiariae] I mentioned are scarcely ever free from heresy. Heretics, however, can be tried by several judges and by various judges and, according to commonly received practice, wherever they are found they can be punished by a local judge, and therefore no matter where a heretic lives, he is considered to be committing an offence there. This way of proceeding is particularly effective in cases involving lot-casting women who scarcely set foot anywhere without doing the place harm and committing some fresh crime. Eighthly, in cases of divining by casting lots and malefices which are not heretical or outrageous, it is required that an investigation be started within twenty years after the seed of the crime has been sown because, according to

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20 annorum reus praescribit ex communiore et veriore sententia, sed quando maleficium vel sortilegium coniunctum est cum haeresi, nulla temporis praescriptio reum potest iuvare, immo et post mortem, ratione haeresis, poterit inquisitio iustitui; immo etiam quandocumque tam grave est maleficium vel sortilegia superstitio, ut exceptum vel enorme crimen censeri debeat, poterit quamdiu vivit reus inquisitione pulsari; et quando fuerunt apostatae vel haeretici tunc etiam poena pecuniaria, quam defunctus debebat, ab haeredibus est luenda, ut puto, usque ad annum quadragesimum, nec minori tempore praescriberent haeredes, quantumvis in crimine laesae Maiestatis humanae quinquennio praescriberent. Ex his sequitur diuturnitatem temporis octo, vel decem, vel amplius annorum, sive a delicti commissi, sive a reatus die sumas, in his criminibus nihil prodesse ad poenae diminutionem, de ipso delinquente sumendam; ratio est quia in his criminibus, nulla praescriptio potest reo suffragari, ut bene Farinac., d.q. 10, n. 90. Nono, requiritur, secundum ius commune, ut contra absentem non fiat inquisitio, sed regula ista fallit in criminibus exceptis; immo de consuetudine, etiam in aliis criminibus potest formari inquisitio contra praesentes, et contra absentes, sive sint contumaes sive non. | sectio iii De indiciis optimis ex quibus iudex in hoc crimine tuto potest procedere. Constat eo clariora et verisimiliora et propinquiora requiri indicia, quo actus iudicialis maioris praeiudicii fuerit reo, ut ad condemnationem, quam ad torturam; ad torturam, quam ad capturam; ad capturam, quam ad inquisitionem; hoc suadet naturalis aequitas, et receptum est communi consuetudine, et probatum Bruno Tract. de indic. 2 p, q. 6, n. 4, et Bossio tit. De inquisit., n. 6, quod

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the more common and the more accurate opinion, after a twenty-year period the accused has a claim that [the legal period of time to bring him to court] has elapsed. But when the malice or lot-casting involves heresy, no lapse of time can help the accused, and an investigation of heresy can be instituted even after he has died. Whenever the malefice or lot-casting is so serious that it should be considered a crime to which the normal rules do not apply, or one which is horrendous, it will be possible for the accused to be subjected to repeated investigation for the rest of his life; and when [people] have been apostates or heretics, the financial penalty the dead person owed must be paid by his heirs, and I think that the heirs should pay for forty years, no less, as much as they would during a five-year period in a case of treason against a human being. From this it follows that in this type of crime there should be no benefit whatever to the offender himself [resulting in] a diminution of the length of time he is punished—eight, ten, or more years, whether you count from the day the offence was committed or the day the accusation was brought. The reason is that in this type of crime no exception can be made which is favourable to the accused, as Farinacci explains very well in question 10, number 90. Ninthly, according to the law which every nation has in common, it is required that a person cannot be investigated in his absence. In crimes to which the normal rules do not apply, however, this rule lapses and the general practice is that an investigation can be started, even in the case of other crimes, against those who are present and also those who are absent, whether they are contumacious or not. Section 3 Very good circumstantial evidence which means that a judge can proceed safely to try this crime It is generally agreed that circumstantial evidence needs to be clearer, more plausible, and more relevant the more the judicial process turns out to be prejudicial to the accused: for example, [that which is needed] to find him guilty than [that which is needed] to have him tortured, that which is needed to have him tortured than that which is needed to have him arrested, and that which is needed to have him arrested than that which is needed to have him investigated. Natural justice persuades us of this, it is accepted by general customary practice, and Francesco Bruni in his Treatise on Circumstantial Evidence and Torture Part 2, question 6, number 4 and [Egidio] Bossi under the title ‘[judicial] investigation’, number 6 have proved that even if some people disapprove

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etsi improbetur aliis, tamen revera est consentaneum plane rationi, nec video cur corruptela vocari debeat; docet hoc bene Farinac., d. q. 1, n. 47. Constat secundo quod indicia quaedam sunt levia, quadam gravia, quaedam gravissima; et levia, suspicionem gignunt tantum, vel ad summum simplicem praesumptionem; gravia vero, gignunt, aliquid ultra simplicem praesumptionem, minus tamen semiplena probatione; gravissima vero gignunt semiplenam probationem, ut minimum. Constat tertio quae sint levia, quae gravia, quae gravissima, hoc ordinarie pendere a iudicis arbitrio; eumque iudicare debere, personarum et rerum circumstantiis trutinitatis, quae indicia ad quid sufficiant, quod arbitrium debet ille dirigere ad normam iuris scripti, vel consuetudinarii, et receptas interpp. opiniones, et praxim patriae. Inquisitio generalis potest aliquando formari non praecedentibus ullis indiciis, sed puta dumtaxat ex notificationibus seu informationibus extraiudicialibus; in qua si vocati et examinati testes aliquem particularem nominant, tunc contra nominatum posset formari specialis inqusitio, sine indiciis vero ullis, non liceret incipere a speciali contra aliquem inquisitione; si tamen iudex procederet, posset reus opponere de nullitate inquisitionis, ob defectum indiciorum: si reus non opponeret, tunc adhuc valeret processus, nam hic defectus non invalidat, nisi reus opponat. Ad assumendas ex officio informationes super delicto sufficiunt indicia levia, sed ad transmittendam reo inquisitionem, sive ad eum citandum pro delicto, necessaria sunt indicia gravia. Quoad capturam, si fiat tantum ne reus fugiat, interea dum fit inquisitio, sufficiunt levia indicia; si vero fiat, ut specia-

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of it, it is still actually consistent with reason, and I do not see why it should be called corrupt. (Farinacci provides a good discussion of this in op.cit. question 2, number 47.)21 Secondly, it is generally agreed that some pieces of circumstantial evidence are slight, some serious, and some very serious. Slight [circumstantial evidence] merely gives rise to suspicion or at most to a presumption [of guilt]. Serious circumstantial evidence, on the other hand, gives rise to something more than straightforward presumption but, (to say the least), something less than complete proof. Thirdly, it is generally agreed that which pieces of circumstantial evidence are slight, which serious, and which very serious normally depend on the judge’s considered opinion and that, after he has weighed up the details of the individuals [concerned] and the situation, he ought to judge which pieces of circumstantial evidence are sufficient for which [stage of the process]; and he should come to this decision by taking into account what is laid down by written and customary law, the received opinions of those who interpret the law, and the practice of his own country. A general investigation can sometimes be instituted, not because of any preceding circumstantial evidence, but (for example) simply as a result of extrajudicial notifications or information received. If witnesses are summoned, and questioned and, during this [general investigation], give the name of a particular individual, then a specific investigation could be started against the person named. But it would not be permissible to institute a specific investigation against anyone in the absence of any circumstantial evidence at all. If, however, the judge were to go ahead, the accused could challenge him on the grounds that the investigation was null and void because of this lack of circumstantial evidence. If the accused did not challenge him, the judicial process could still proceed because, under these circumstances, the lack [of circumstantial evidence] does not invalidate it unless the accused challenges [the judge’s decision]. Slight circumstantial evidence is enough to warrant taking unofficial information about the offence, but serious circumstantial evidence is required before the accused can be told he is being investigated or be cited for the offence. Slight circumstantial evidence is enough to have him arrested if this is done simply to make sure the accused does not run away while the investigation takes place;

21

Francesco Bruni, (late fifteenth century). His treatise appeared in Siena in c.1480. The reference to Bossi comes from an essay in Farinacci’s Criminal Practice. Del Río gets many of his references to legal authorities from Farinacci.

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liter contra eum procedatur, necessaria sunt gravia. Ad torturam mea sententia sufficiunt indicia plus quam gravia, et arbitror a Claro gravia vocari, quae communiter gravissima, sane ut docet Farinacius ea deberent esse incidia tam urgentia, et certa, et luce meridiana clariora, ut iudex sit quasi certus de delinquente; et ut nihil aliud ipsi desit, quam rei confessio, quod intelligendum non in genere probationis, sed in genere indicii; hoc est, quae sint apta ad plene persuadendum animum iudicis, non tamen ad plene probandum; stat enim iudicem esse persuasum de culpa rei, et reum esse noxium, etiamsi hoc non sit plene probatum, quia deest confessio rei, vel aliqua alia probatio; quando ergo iudex sic putat se habere plena indicia, potest procedere ad torturam; sed si haberet plenas probationes, tunc deberet procedere ad condemnationem. Haec incidia volunt Dd. debere ad torturam esse proxima delicto, et non remota (v.g. quod te|stes deponant de ipso delicto, vel de visu), sed intelligendi sunt, quando unicus testis deponit, et indicium non est confirmatum aliis indiciis; ordinarie enim debent indicia remota gravia probata esse per duos testes, etiam in crimine haeresis, nec sufficeret unus testis omni exceptione maior, sed debent esse duo omni exceptione maiores; ad inquirendum vero sufficerent non omni exceptione maiores; preterea ad probandum indicia haec remota (de quibus tantum agimus) testes debent isti esse non singulares, sed contestes, siquidem indicia sint plane remota; si vero sint non multum remota, sed quasi adminicula quaedam delicti, plurium singularia testimonia virorum bonorum sufficient; maxime quando haec testimonia omnia sub eodem crimine quasi subordinantur, ut si dicat unus se vidisse aliquid ponentem sub ianuae limine, et equos postea mortuos; alius quod vidit tangentem puerum, et hunc mortuum; tertius quod vidit proiicientem pulverem, et subsecutam tempestatem; haec enim omnia in unum tendunt finem, et ideo haec singularitas admini-

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but serious pieces of circumstantial evidence are needed to institute proceedings against him in particular. In my opinion, pieces of circumstantial evidence more than just ‘serious’ are enough to allow one to proceed to torture, and I think [Giulio] Claro designates as ‘serious’ those pieces of circumstantial evidence which are generally regarded as being ‘very serious’. As Farinacci sensibly observes, circumstantial evidence should be compelling, certain, and clearer than the light at noon so that a judge may come to a more or less definite view of the offender, and so that he may lack nothing other than a confession by the accused. It should be understood that we are talking here in terms of circumstantial evidence, not in terms of proof—that is, about those things which are capable of persuading a judge completely, but not for proving guilt beyond any doubt, since it holds good that the judge has been persuaded the accused is to blame and is guilty, even if his guilt has not been fully proved because a confession or some other proof is lacking. So when a judge thinks he has a complete set of pieces of circumstantial evidence, he can proceed to torture. If, however, he were to have a full set of proofs, he should proceed to pass sentence. Scholars tell us that these pieces of circumstantial evidence ought to involve the offender directly, not remotely: for example, witnesses make a deposition about the offence itself or about what they have seen. Now, one has to understand that [what scholars are saying is that] when a single witness makes a deposition and his circumstantial evidence is not confirmed by other pieces of circumstantial evidence—because usually two witnesses are required to make serious circumstantial evidence not directly connected with the accused credible, even in the crime of heresy—one witness too important for any objection to made against hearing his evidence would not be sufficient, and there have to be two such witnesses. But in order to pursue an inquiry, witnesses not too important for any objection to be made to hearing their evidence would be sufficient, and in order to prove circumstantial evidence not directly connected with the accused—and I am simply dealing with this at the moment—these witnesses must not be the only persons [to offer such evidence], but must be accompanied by others if the circumstantial evidence clearly does not directly involve the accused. On the other hand, if the circumstantial evidence is not as far removed from the accused as all that, but props up, so to speak, what he is being accused of, the individual testimonies of several trustworthy men will suffice, especially when all these testimonies are, as it were, relevant to the same crime: for example, if one man says he saw [the accused] putting something under the threshold of a door and horses later died, and another man says he saw him touch a child and the child died, and a third says he saw him throwing dust into the air and a storm followed. All these [pieces of evidence], you see, have one end as their purpose and therefore this singularity

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culatur potius, quam obsit, Alex. Cons. 13, lib. 7, Gomes. tom. 3, cap. 12, n. 12, Minsing. obs. 100, cent. 2, And. Gail. lib. 2, obs. 66, optime loquitur hac de re Simancas in praxi tit. 35, a. n. 34. Proxima indicia etiam requirunt duos testes quando non sunt immediate de ipso delicto, sed de adminiculis proximis, sed si sint de ipso delicto, ad torturam sufficit unus exceptione maior, Farinac. optime n. 41, qui etiam seqq. numeris multa ponit dignissima observatu. Sed nunc veniamus ad singula indicia. Primum ergo est indicium per testes. Sufficit autem in hoc crimine unus testis ad inquisitionem particularem instituendam, etiamsi sit alias inhabilis, sed si sit testis legitimus et exceptione maior est sufficiens ad torturam, iuxta Clarum, q. 21., n. 2, cuius dictum nimis indistincte usurpat Godelm. lib. 3, cap. 3, n. 13; tu explica iuxta iam a nobis dicta ex Farinacio. Secundum indicium est nominatio socii criminis: hoc etiam indistincte ponit I.C. ille Francofurt. more suo, sed accurate punctum istud tractavit Dominus Binsfeldius, quem qui plura volet poterit legere, ut et Prosperum Farinacium insignem I.C. Sciendum communem esse dd. sententiam, maleficos et mathematicos de consociis interrogari et torqueri posse; quod et iure civili cautum, et omnium praxi receptum est; immo et iudicem teneri interrogare, et reum in conscien-

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[of aim] is supportive of rather than damaging to [the accusation]. (Alessandro [Tartagni], Advice Book 7, advice 13; [Luis] Gomez, [Commentaries] Vol. 3, chapter 12, number 12; Mynsinger, A Hundred Observations, century 2; Andreas von Gaill, Observations Book 2, observation 66; and [Diego de] Simancas talks about this subject very well in his Practice, title 35a, number 34.)22 But now let us come to individual instances of circumstantial evidence. First, then, is circumstantial evidence given by witnesses. In this crime, one witness is enough to institute investigation of a particular person, even if [the witness] is otherwise disqualified. But if the witness is legally admissible and is too important for an objection to be made against hearing his evidence, according to [Giulio] Claro, question 21, number 2, that is enough to warrant [the accused’s] being tortured. ([Johann] Gödelmann makes use of Claro’s dictum much too indiscriminately, Book 3, chapter 3, number 13.)23 Provide your own explanation from what I have said already, which is derived from Farinacci. A second piece of circumstantial evidence is being named by one’s accomplice in the crime. This, too, is discussed, without discrimination, in his usual fashion, by the legal expert from Frankfurt, but Master Binsfeld deals with the point accurately and anyone who wants more information will be able to read him.24 It is common scholarly opinion that workers of harmful magic [maleficos] and astrologers [mathematicos] can be questioned under torture about their associates. It is approved under civil law and accepted as universal practice that a judge is bound to interrogate accomplices, and that the accused is bound in 22

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Alessandro Tartagni, (1424–1477), published seven volumes of Consilia between 1488 and 1492. Luis Gómez, (c.1484–c.1524), was Professor of Civil Law in the University of Padua. He published his Commentaries on the Judicial Rules of the Chancellary (‘Commentaria in Judiciales Regulas Cancellariae’) in 1540. Joachim Mynsinger von Frundeck (1514–1588) was an advocate and a judge. He published his Four Hundred Individual Observations from the Imperial Judicial ‘Chamber’ (as they call it), (‘Singularium Observationum Judicii Imperialis Camerae (uti vocant) Centuriae Quatuor’) in Basel in 1563. Andreas von Gaill, (1526–1587), was appointed to the Imperial Chamber Court (Reichskammergericht), one of the two most important courts in the Empire, in 1588, and published his Practical Observations on the Judicial Process in the Imperial Chamber [Court] (‘Practicae Observationes ad Processum Judiciarum Imperialis Camerae’) in 1578. Diego de Simancas’s The Way Heresy is Unusually Practised, or, A Handbook for Those who sit in Judgement on the Way Religion has been Violated (‘Praxis Haereseos, sive, Enchiridion Judicum Religionis Violatae’) was first published in Venice in 1568 and revised in 1569 and again in 1573. Johann Gödelmann (1559–1611) was a Lutheran jurist. His three-volume Treatise on Magicians, Workers of Poisonous Magic and Vampire-Witches (‘Tractatus de Magis, Veneficis, et Lamiis’) was published in Frankfurt-am-Main in 1591. Peter Binsfeld (1546–1598) was suffragan Bishop of Trier and published his Treatise on the Confessions of Workers of Harmful Magic and Wise-Women (‘Tractatus de Confessionibus Maleficorum et Sagarum’) in Trier in 1589.

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tia teneri denunciare socios, quos nescit; immo praesumit non se correxisse, nec destitisse a crimine: est sententia Theologorum. Iudex hoc facere omittens peccat graviter: contra iustitiam, quia non occurrit et impedit mala reip. et privatis inde imminentia, quae tenetur impedire; et idcirco tam privatis, quam reip. eum teneri ad restitutionem omnium damnorum inde redundantium, vult communem esse sententiam Theologorum (ut est) Binsfeldius, qui addit, ex Soto et Navarro, teneri etiam confessarium huiusmodi reos admonere, ut socios non correctos denuncient, quod si nolint facere, non debere eos absolvere, si absolvat peccare. Quod si reus sciret aliquem ex sociis esse conversum, neque periculum esse, ne ad vomitum redierit, vel sit rediturus: tunc non posset illum nominare, nec confessarius, volentem talem nominare, posset absolvere. | Sed quaedam circa hanc rem (nempe circa nominationem factam ab uno complice, de hac enim hac sect. disputo; non de facta a pluribus, de qua res est certior) sunt explicatius tradenda; fuse docet Binsfeldius iudicem debere credere reo socios casus excepti denuncianti; frustra enim adstringeretur ad interrogandum, si non deberet ei fidem habere. Certum est aliquam habere debere, sed quantam et ad quid? Nunc videamus. Gignit denunciatio idoneam praesumptionem contra socios, si sequentia concurrant; nempe si non sit defectus in persona, qui elevet fidem; huiusmodi autem defectus raro contingit. Admittuntur enim infames; tales sunt omnes complices; ideo minus fidei meretur eorum testimonium, quam virorum bonorum; admittantur tamen ad denunciationem et testimonium, quia vix possunt alii haberi, et malefici non solent

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conscience to denounce those he does not know have reformed themselves— indeed, he presumes they have not—and have not stopped committing the crime. It is the opinion of theologians that the judge who fails to do this commits a serious sin because he is not confronting and impeding the subsequent harm which threatens the state and private individuals. Consequently, he is bound to see that restitution is made of all losses redounding to private individuals as well as to the state from the crime. This is the common opinion of theologians, as it is of Binsfeld who, basing his arguments on [Domingo de] Soto and [Martin de Azpilcueta] Navarro,25 adds that a confessor is bound to advise those accused of this crime that they must denounce associates who have not been reformed, and that if they are unwilling to do so, he ought not absolve them, and if he does so he is committing a sin. But if the accused were to know that one of his associates had returned to the Faith, and that there was no danger he would return to his vomit, or that he was going to do so,26 he could not, under those circumstances, name him and his confessor could not absolve a man who was willing to name his associate. Certain points in connection with this, however, are in need of further explanation, especially in connection with someone’s being named by a single accomplice, (because this is what I am talking about in this section, not being naming by several people, which makes the situation more certain). Binsfeld tells us at length that, in a case which falls outwith the normal legal rules, a judge is obliged to believe an accused person who is denouncing his accomplices because there would be no point in his being constrained to conduct an interrogation if he had no faith in the person [he was questioning]. Well, certainly he should have some faith, but how much and with respect to what? Let us now see. An appropriate denunciation gives rise to a presumption against accomplices if the following things happen at the same time—certainly if no defect in the person throws doubt upon his word, although an inadequacy of this kind rarely happens because disreputable people are granted a hearing and all accomplices are people of this sort, and so their testimony is less worthy of being believed than that of morally upright men. They are granted a hearing, however, to deliver a denunciation and give testimony because one can

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26

Domingo de Soto, (1494–1560), was a Spanish Dominican. The reference is to his Reason for Covering Up and Uncovering a Secret, which was published in 1566. Martin de Azpilcueta (1491–1586) was a distinguished canonist and theologian also known as ‘Navarrus’. His principal work was Manual de Confesores y Penitentes, published in 1549. The two authors are cited by Binsfeld in Confessions of Workers of Harmful Magic, Second Part = p. 85 in the 1579 edition. Proverbs 26.11: ‘A fool who repeats his folly is like a dog which returns to its vomit.’

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hoc crimen nisi coram complicibus committere et solis illis detegunt; et infamiae hoc impedimentum est iuris positivi; ideo lex potest in eo dispensare ex iusta causa, ut fecit; debet tamen iuxta nonnullos haec complicis denunciatio esse facta in tortura, eo quod cum sint infames, parum illis extra torturam credendum. Reprehendit hanc sententiam, quae tamen communior videtur, Simancas, et ait eius auctores sine lege et ratione loqui; rationem iam dixi, et favet c. illi qui 5, q. 5, et hoc satis colligitur ex Carolina constitutione quae in imperio servanda est. Nec Simancae opinio alibi locum habere potest, nisi forte, ut ex dicto socii extra torturam procedatur ad inquisitionem; nunquam, ut ad torturam; immo non sufficeret, si reus statim ac a tortura depositus erit, hoc diceret; sed debet tortura specialiter adhiberi pro confirmatione suae depositionis; nec sufficeret prima tortura, in qua reus suum delictum confessus est: sic Clarus § ult. q. 45. Antequam vero specialiter torqueatur pro confirmatione depositionis illius in tortura, in qua suum crimen fassus, factae, debet eandem depositionem sponte ratificare, non secus ac ipsam principalem delicti confessionem, Marsil. § diligenter. n. 153, Carrer. De indic. et tort. § octavum indicium, n. 17 et 22; postea poterit coram nominato, ad confirmationem suae confessionis, et ut socios magis afficiat, et ut defectum infamiae expurget, et ad omnem alium bonum effectum, iterum subdi torturae, sed admodum levi: sic post Boër. Boss. Vulpel. Clarum, Farinacius q. 43, n. 139, qui testatur sic Romae practicari. Item requi-

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scarcely make use of other people, and workers of harmful magic [malefici] do not usually commit this crime unless their accomplices are present, these being the only people to whom they disclose [their criminal activities]. According to some people, however, this denunciation by an accomplice should have been made under torture because, since the people concerned are people of ill repute, one can have little faith in what they say unless they say it under torture. [Diego de] Simancas, however, objects to this opinion, which seems to be quite common, and says that its authors are talking without knowing the law and without regard for reason. I have already talked about reason, [Simancas] speaks well of it in chapter 5, ‘those who’, question 5, and the point he is making is gathered, well enough, from Charles v’s Constitution which should be observed within the Empire.27 Simancas’s opinion that one can proceed to an investigation as a result of what an accomplice has said without being tortured cannot have a place anywhere else, except by chance. One could say that it would never be sufficient warrant for torture if the accused gave his deposition straight away and without being tortured, but torture ought to be employed for the specific purpose of confirming his deposition, and the first torture-session during which the accused confessed his offence would not be enough, as [Giulio] Claro says in the last paragraph of his question 45. Before he can be specifically put on the rack in order to confirm the deposition, made under torture, in which he confessed his crime, however, he must ratify that same deposition of his own free will, and likewise his principal confession of the offence—see [Ippolito] Marsili, paragraph ‘carefully’, number 153, and [Lodovico] Carerio, Circumstantial Evidence and Torture, eighth piece of evidence, numbers 17 and 22—after which it will be possible to subject him to torture again—very light this time—in order to confirm his confession in the presence of the person he named, to produce a greater effect on his accomplices, to clear the defect of his being a person of ill repute, and all kinds of other good effects. (This is what Farinacci says in question 43, number 139, following [Nicolas] Bohier, [Egidio] Bossi, [Ottaviano] Volpelli, and [Giulio] Claro. He also testifies that this is the usual practice in Rome.)28 27 28

Constitutio Criminalis Carolina, an Imperial penal code issued by Charles v in 1532. Ippolito Marsili, (1450–c.1529), is best known for his Practice in Criminal Trials which was first published in Venice in 1526 and reprinted many times thereafter. Lodovico Carerio (1490–1560) was a jurist from Calabria. He included an essay on circumstantial evidence and torture in his New Practice in Criminal Cases which was published in Venice in 1548. Nicolas Bohier, (1469–1539), was a French jurist and President of the Parlement of Bordeaux. A collection of his Consilia was published posthumously in 1554. Ottaviano Volpelli, (floruit second half of the sixteenth century), published a legal textbook in 1581, dealing with responses and allegations in criminal trials.

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ritur ut nominator nihil irae vel rancoris habeat vel odii cum nominato, quod iudex debet diligenter attendere, et quaerere, nam inimici nominatio, nullam fidem faceret; ita sane si sit gravis inimicitia; tum enim hoc impedimentum est iuris naturalis, nec lege vel statuto posset tolli. Minorennium testimonium ad inquirendum potest usurpari, non ad torquendum, nisi meliora et plura accedant indicia; foeminarum, propter sexus infirmitatem et levitatem, plures denuntiationes sunt necessariae, quam virorum, puta: exempl. grat. trium vel quatuor pro uno viro. Et haec omnia locum habent in hoc crimine, etiam quoad coniuges parentes et liberos. Secundo requiritur ex parte iudicis, ut non interrogarit veneficum de socio aliquo in individuo, sed in genere de sociis, non de hoc vel illo, quia hoc foret suggerere, non inquirere, et hoc cavet Carolina constitutio; sed alii dd. volunt hoc procedere, quando non concurrunt alia indicia vel praesumptiones contra singularem | personam, nam si aliqua indicia, vel indicium, aut praesumptio contra personam in specie, sive in singulari concurrerent, tunc volunt licere iudici interrogando descendere ad speciem, ut fuitne tecum P. in conventu malef. quando haec vel illa fecistis? Quod tamen explicandum ex Farinacio, scilicet duobus casibus tantum, etiam in exceptis criminibus, posse in specie interrogari deponentem de consociis. Nempe quando reus dicit se cum sociis deliquisse, sed eos non nominat; tunc enim monendus est, et cogi potest, ut eos in specie nominet. Item quando contra certam personan adest praesumptio legitima et valde clara, sive indicia tam manifesta, ut vere per illa dicatur constare ipsum esse delinquentem. “Sic (ait Farinac.) vidi servari a iustis et bonae conscientiae iudicibus”: d. 43, n. 133. Tertio, requiritur ex parte criminis, ut nominans diligenter sit interrogatus de omnibus circunstantiis: quis, quid, quando, ubi, cum quibus, quomodo? Nec enim aliter posset procedere ad inquisitionem et torturam ex tali nominatione: est omnium et d. Carolinae. Quarto requiritur ut inquirat a vicinis an nominata persona fuerit de tali crimine a fide dignis unquam diffamata vel suspecta habita, sic Constitutio Carolina, et sane est ex adminiculis necessariis, ut post

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Likewise, it is required (1) that the person doing the naming have no anger or rancour or hatred at all against the person he has named. The judge must pay careful attention to this and inquire into it, because if the man names an enemy, [the judge] could not trust what he says, and if the enmity is serious, this forms an impediment to natural law and could not be erased by [man-made] law or statute. The testimony of those who are under-age can be used to warrant an investigation, but not to warrant torture unless accompanied by more and better circumstantial evidence. More denunciations are required from women, because of the weakness and fickleness of their sex, than from men—three or four, for example, to one made by a man. All this is relevant in the case of this particular crime, even in respect of wives, parents, and children. (2) The judge is required not to question a worker of poisonous magic [veneficum] about one of his accomplices as an individual, but about his accomplices in general and not about this one or that one, because that would mean he was making suggestions, not conducting an inquiry, and this is forbidden by Charles v’s Constitution. Some scholars, however, are happy for him to do this when there is no concurrence of other pieces of circumstantial evidence or presumptions against a specific individual, because if several pieces of circumstantial evidence, or one piece, or one presumption, were individually, or one by one, to concur against a person, then [these scholars] are willing to permit the judge to come down to specifics by asking, for example, ‘Was P with you during the meeting of workers of harmful magic when you [both] did this or that?’ But for an explanation of this you need to turn to Farinacci. Certainly in only two cases, even in crimes which fall outwith the normal legal rules, can someone laying a charge against his accomplices be interrogated about individual detail: (a) obviously, when the accused says he has committed an offence along with accomplices, but does not name them, he must be advised, and can be compelled, to name them individually; and likewise (b), when there is a legitimate and perfectly clear presumption against a certain individual, or circumstantial evidence which is so clear that because of it one can genuinely say that there is general agreement he is the offender. (‘This,’ says Farinacci, ‘is how I have seen upright judges of good conscience behave,’ op.cit. 43, number 133.) (3) As far as the crime is concerned, it is required that the person naming [his accomplice] be questioned carefully about every circumstance—who, what, when, where, with whom, how?—because one could not otherwise proceed to formal investigation and torture simply because he had given a name. (Charles v’s Constitution says this applies in every case as well.) (4) [The judge] is required to ask the neighbours of the person who has been named whether he has ever been defamed or suspected of such a crime by people who are worthy of being believed. This is what Charles v’s Constitution says, and it

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docebo. Quinto, ut reus in sua nominatione non vacillet aut variet, sed constanter perseveret, etiam in speciali tortura, ut docui, et statuit constitio Carolina. Nam deponens varius non modo ad torturam, sed nec ad inquisitionem sufficiens indicium praebet, ut ex communiore sententia receptum, et merito; quia deponens varius periuro non absimilis est. Sexto requiritur ut nominans iusiurandum praestiterit se vera fateri, et vere nominare, qua in re tuta et receptior praxis est, sufficere principio factum iuramentum generale de veritate dicenda, et postea iterum oblato in ratificatione, aut in confrontatione cum nominatio; nec opus est alio speciali, ut sentiunt nonnulli, quos merito refellunt Menochius, Clarus et Farinac. Ad torturam denunciati seu nominati ab uno complice sufficient hae conditiones, si aliae confessiones plurium reorum concurrant, vel etiam adminiculentur alia indicia; quod ita intellige. Quia versamur in casu excepto, et dd. hoc negantes loquuntur de criminibus non exceptis, ideo si plures testentur de eodem suo consocio, faciunt indicium sufficiens ad torturam, ut in praxi observatur; idemque obtinet, quoad alia indicia et praesumptiones adminiculantes. Putant quidam dd. etiam sine ullis adminiculis aliis ad torturam sufficere nominationem unius socii, ita Gomez. et Blanchus, ex male intellecto Salyceto, sed eos optime refellunt Menoch. d. cas. 474, n. 46, Bertazz. in cons. 341, n. 8 et 25, fol. 2, Farinacius sup. n. 39, iunctis n. 147 et 155, et ideo timoratus

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undoubtedly forms part of the legal evidence needed to support the case, as I shall point out later. (5) [It is required] that the accused not waver or vary when he names someone, but abide steadily by [what he has said], even under torture applied specifically to him, as I have pointed out and as Charles v’s Constitution decrees, because someone who wavers in his deposition merely provides circumstantial evidence sufficient to have him tortured, but not to have him investigated, as commonly received opinion quite rightly has it, since someone who wavers in his deposition is little different from a perjurer.29 (6) It is required that the person giving the name swear an oath that he is telling the truth and giving the proper name. In this instance the prudent and more reliable practice is that, to begin with, he swear in general terms that he is telling the truth, and later on, by way of ratification or during a confrontation with the person he has named, that he swear the oath again. There is no need for another, specific [oath], as several people think, and [Giacomo] Menochio, [Giulio] Claro, and [Prospero] Farinacci quite properly prove them wrong.30 These conditions are sufficient to warrant torturing someone who has been denounced or named by a single accomplice, if other confessions by several accused are in agreement, or even if other pieces of circumstantial evidence support them. Interpret this as follows. Because we are dealing with a case to which the normal legal rules do not apply, and scholars who deny this are talking about crimes to which the normal legal rules do apply, and if several people offer evidence about this accomplice of his, they provide circumstantial evidence sufficient to warrant torture, as one observes from practice. The same is also true in respect of other pieces of circumstantial evidence and presumptions which support [the accusation]. A number of scholars think that being named by a single accomplice, even without any other supportive evidence, is enough to warrant torture. (See [Luis] Gómez and Blanchus who misunderstood [Bartolomeo da] Saliceto and are very well refuted by [Giacomo] Menochio, op.cit. case 474, number 46, [Bartolomeo] Bertazzoli in Advice, Vol. 2, 341, numbers 8 and 25, and Farinacci, op.cit. number 39, along with numbers 147 and

29

30

This omits what appears to be an intrusive ‘non’ (not) in front of ‘modo’, (merely). If, on the other hand ‘nec’ after ‘sed’ (but) is read as ‘etiam’ (also), the sentence will read ‘not only provides circumstantial evidence sufficient to have him tortured, but also to have him investigated,’ which actually seems to make better sense. Giacomo Menochio (1532–1607) published Investigations and Cases which depend on Decicisions taken by Judges (‘De Arbitrariis Judicum Quaestionibus et Causis’) in 1569, Legal Decisions or Answers (‘Consilia sive Responsa’) in 1572, and Presumptions, Conjectures, Signs, and Indicators (‘De Praesumptionibus, Conjecturis, Signis et Indicibus’) in 1575.

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iudex semper requirat indicia, non levia, sed magna et urgentia, ut bene monuit Mascardus lib. 3 De probat. concl. 1311, n. 14 iuncto n. 35, quae cum uno solo complice. Non nullam harum conditionum me exigere si sint nominationis plurium complicum, et quando tantum est unius, requirere aliquam istarum, non omnes, non auderem facile alia usurpare, quam a iure suggesta, et bene commemorata per Farinacium. Primo, si accedat unus testis oculatus maior exceptione, poterit iudex procedere ad torturam valde gravem, quia tunc habet plusquam semiplenam probationem, non | tamen facit iste testis plenam tunc probationem, ut male putarunt multi recentiores secuti Calcaneum, hoc temere affirmantem; nam non potest dici plene probatum, vel reus convictus, nisi per duos saltem exceptione maiores, talis autem nunquam est socius criminis. Secundo, si accedat non unus testis auritus, sed ut minimum duo; hi enim faciunt praesumptionem aliquam. Tertio, si accedat inimicitia gravis nominati cum occiso, vel damnificato. Quarto, si accedat fama contra nominatum. Sed hoc indiget explicatione. Nam fama vehemens; si fuerit orta a personis honestis et fide dignis, sola sine aliis adminiculis facit indicium ad torturam; vehemens autem censetur, non ex numero testium (qui impertinens est ad hoc), sed ex causis suis; nam si cau-

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155); and therefore, a God-fearing judge must always require that circumstantial evidence be weighty and cogent, not light, as [Giuseppe] Mascardi advises us extremely well in Proofs Book 5, conclusion 1311, number 14 conjoined with number 35, (which refer to a single accomplice only.)31 [He says] that I do not need any of these conditions if they are dealing with the naming of several accomplices, that when they are dealing with the naming of only one accomplice, I need one, not all of them, and that I ought not to dare to make light use of other [pieces of circumstantial evidence] other than those which have been suggested by the law, and these have been quite properly mentioned by Farinacci. (1) If there is a single eye-witness who is too important for an objection to be made against hearing his evidence, the judge will be able to proceed to very severe torture, because under those circumstances he has more than half a proof. This witness, however, does not, under those circumstances, furnish full proof, as many fairly recent [writers] have thought (because they followed [Lorenzo] Calcagno who was rash enough to claim this),32 since [the charge] cannot be said to have been fully proved, or the accused convicted, except by at least two witnesses who are too important for an objection to be made against hearing their evidence, and such a person is never an accomplice in the crime. (2) If there is not just one aural witness, but at least two, because these furnish some kind of presumption. (3) If the person named is a serious enemy of the person who has been tortured or found guilty. (4) If the person named has a bad reputation. This, however, needs explanation, because if a really bad reputation has been voiced by people who are respectable and worthy of being believed, this alone, without any other supporting evidence, is circumstantial evidence warranting torture. But [a reputation] is thought to be really bad, not because of the number of witnesses— this has nothing to do with it—but because of the things which have actu-

31

32

Marco Antonio Blanchi (1498–1548) was a jurisconsult from Padua. His surname also appears as ‘Bianchi’. He published a Tractatus de Indiciis Homicidii in 1545 and a Practica Criminalis in 1555. Bartolomeo da Saliceto, (died 1411), taught law in the Universities of Bologna and Padua. Bartolomeo Bertazzoli, (c.1520–1588), published a collection of legal decisions and answers in criminal and penal crimes in both civil and ecclesiastical courts in two volumes in Venice between 1583 and 1585, with a second edition appearing in 1604. Giuseppe Mascardi, (1540/45–1585), published the first two volumes of his book on proofs in 1584, the third being published posthumously in 1588. Lorenzo Calcagno, (c.1410/20–1478), was a jurist in Brescia. His Legal Decisions (‘Consilia’) were reprinted several times during the sixteenth century, beginning with an edition in Venice, 1504.

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sae seu coniecturae unde orta, sunt verisimiles, graves et urgentes; censebitur esse vehemens, secus si non orta sit nisi ex levibus frivolis et non probabilibus, neque tum sufficerent ad torturam; si non sit vehemens fama, tum si non est orta a personis honestis et fide dignis (verbi gratia, ortum habuit a complicibus), scio variatum sententiis; existimo tamen si fama orta sit post incarcerationem, vel accusationem, famam non adminiculari, ut bene Farinacius docuit, sed si orta fuisset ante accusationem et incarcerationem, probabilius puto (saltem ubi non viget Carolina constitutio, quae repugnat) famam huiusmodi adminiculaturam; vix enim potest in hoc crimine famae initium ab aliis, quam complicibus, oriri; et sic intelligo atque recipio sententiam Binsfeldii. in l. fin. C. De malef. indicio. 6, et hoc obtinere in omni re turpi, de qua non solet nisi inter infames personas tractari, ut de meretricio, alea, lenocinio et simil. fatetur Farinacius, d. q. 47, n. 160. Quae autem requirantur ut dicatur vere esse fama, post videbimus. Quinto, si accedat, cum dicto socii criminis fuga nominati ob metum non iustum, vel suspicionem non vehementem, inquisitionis contra eum formandae, ante accusationem formatam, vel antequam ad actum iudicii aliquem sit processum, coram iudice non inclementi, aut solito procedere non temere, neque praecipitanter; his enim casibus, si iudicium deserat, neque citatus compareat, vel absentiae iustas causas adferat; vehemens oritur suspicio, sicut etiam quando servato debito iudicii ordine carceri fuit mancipatus, et sine effractione aufugit, nam si indebite carceratus fuisset, et etiam carcere effracto fugisset, non tamen fuga haec eum faceret pro confesso haberi. Sed de fuga mox plura. Sexto, si accedat stricta amicitia et assidua conversatio nominati cum nominante tanta, ut faciat valde verisimilem praesumptionem participationis in crimine. Septimo, si accedat secreta collocutio nominati et nominantis, ante crimen comissum habita: verbi gratia, antequam segetes destruerentur, puer necaretur, etc.

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ally caused it. If the causes or conjectures whence [the bad reputation] has arisen are likely to be true, serious, and cogent, [the reputation] will be considered to be a very bad one; but if it has arisen merely from [causes] which are slight, frivolous, and unlikely to be true, these would not be sufficient to warrant his being tortured. If the bad reputation is not one which is very bad, and if it has not arisen from people who are respectable and worthy of being believed—for example, it has originated with his accomplices—I am aware that there have been different opinions [about this]. But I think that if the reputation arose after the person was imprisoned or indicted, these do not support the bad reputation, as Farinacci has explained well. If, however, the reputation arose before he was indicted and imprisoned, I think it more likely—at least in regions where Charles v’s Constitution, which disagrees with this, is not authoritative—that this kind of reputation will support [the charge], since the start of a bad reputation can scarcely arise in this crime from people other than accomplices—this is how I interpret and understand Binsfeld’s opinion at the end of his Confessions of Workers of Harmful Magic, indication 6—and that this is relevant in every case involving disgraceful behaviour, such as prostitution, gambling, pimping, and the like, which is not usually investigated without involving people of ill repute. (Farinacci discusses this in op.cit. question 47, number 160.) We shall see later what one needs so that one can accurately say that a person has a bad reputation. (5) If it happens that, when his accomplice in crime has named him, [the accused] runs away because of an unjustified fear, or a suspicion which is not particularly strong, that an investigation will be instituted against him before a charge has been formulated, or before he can be brought to court in front of a judge who is not without mercy, or who does not usually proceed precipitately and without due caution. In these circumstances, if he runs away from being investigated and does not appear in court when he has been cited, or offer justifiable excuses for his absence, it will give rise to very strong suspicion, just as when, after the due process of the law has been observed and someone has been sentenced to imprisonment, he runs away without actually breaking out of prison, because had he been imprisoned without just cause, and had broken out of prison and fled, this flight of his would not have been taken as a confession [of guilt]. But [I shall say] more about flight in a moment. (6) If it happens that there is such a close friendship and constant association between the person named and the person naming him that it makes the presumption that they took part in the crime together very likely to be true. (7) If it happens that there was a secret conversation between the person named and the person naming him before the crime was committed: for example, before crops were destroyed, before a child was killed, etc.

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Octavo, si accedat superstitio nominati, ut si usurpaverit res, facta, vel verba, quae sapiant incantationem; exempla sunt, si artem magicam alios docere sit conatus, si olla cum unguentis magicis vel cum buffonibus, vel alia instrumenta huius perfidiae in aedibus eius sint reperta; maxime si liber magicus in domo eius repertus sit, cui superior potestatem habens et in bonum finem id non concesserit; item si quis alteri fuit interminatus maleficium, cuius effectus fuit subsecutus, maxime si qui minatus consuevit minas exequi, sed necesse est quaedam hic concurrere, ut dicam postea; item si nominatus | inveniatur in stabulo aut domo alterius, tempore, et loco quando non debet; et maleficium postea subsecutum fuit. Item si quis feram vulnerasset, et in eodem membro mox vulnerata inveniatur persona de hoc crimine infamata, ut in Lycanthropis saepe accidit. Et nuper hic in Belgio mihi retulit evenisse quiddam permirum Nob. et spectatae fidei vir, Vanderburchtius Decanus Ecclesiae Mechliniensis. Municeps bombardam gerens deambulabat extra municipium, cui ecce obstrepunt multae aves ex obscaenis, corvi et picae, in arbore prope viam. Sclopum collimat, et displodit; visus sibi unam certo ictu perculisse, et decidisse de ramo, reperit solam ferream clavem de cingulo muliebri delapsam; capit, et domum rediens narrat amico, et num norit clavem quaerit? Respondet alter se nosse clavem vicinae domus N. Itur ad domum, reperiunt ianuam clausam; inserunt in seram clavem recludunt, ingrediuntur pro familiaritate, quae illis cum Patrefamilias; ingressi Matremfamil. inveniunt glande latus ictam Cape (Lector) et aliud certissimum; versabar anno 1587 Caleti (quando foelicibus auspiciis Sereniss. Archiducis Alberti vi expugnantum, a Catholici Regis militibus tenebatur) ad Pontem Nuleti duo signa Walonum praesidio posita limitem, contra Bolonie-

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(8) If it happens that the person named used a superstitious practice, such as making use of objects, or doing things, or saying things which smack of enchanting [things or people]. Examples are if he has tried to teach others how to practise magic, if jars with magical ointments, or jars with toads in them have been found in his chamber, and especially if a book of magic has been found in his house and someone who is his social superior and has the power to do so has, for a good reason, not granted him permission [to have it]. Likewise, if one person has menaced another with an act of harmful magic [maleficium], the effect of which has followed [the threat] closely, especially if the person who has issued the threat has been in the habit of following up his threats. (Certain things, however, have to happen at the same time in this case, as I shall say later.) Likewise, if the person named is found in someone else’s stable or house at a time and in a place he should not have been there, and harmful magic followed soon after. Likewise, if someone wounded a [female] wild animal and the person defamed of this crime is found soon afterwards wounded in the same part of the body, as often happens in cases of lycanthropy. Not long ago, here in the Spanish Netherlands, Van der Borcht, who is Dean of [St Rumbold’s] Church in Mechelen, and a man of noble and noteworthy faith, told me about a really extraordinary thing which had happened there.33 A citizen, carrying a gun, was taking a walk outwith the town when all of a sudden birds of ill omen, crows and magpies, in a tree near the road began to scream at him. He levelled his arquebus at them and fired and thought he had scored a direct hit on one of them which fell off its branch. But he found only an iron key which had dropped off a woman’s belt. He picked it up, went home, and told a friend of his about it. ‘You don’t recognise this key, do you?’ he asked. His friend replied that he did. It belonged to his neighbour, N. So, they went to the house and found the door shut. Presuming on their close friendship with the owner of the house, they inserted the key in the lock, turned it, and went inside, and when they came in they found that the mistress of the house had been struck in the side by a bullet. Here is another example, Reader, and one which is quite beyond dispute. In 1587 I was staying in Calais which had had the good fortune to be captured by his most serene Highness, Archduke Albert, and was being occupied by troops of the Most Catholic King.34 Near the Nieulay Bridge two banners, guarded by a garrison of Walloons, had been placed to mark the

33 34

Del Río was in Leuven between 1594 and 1599. Leuven is only about fourteen miles away from Mechelen, so a visit by one man to the other would not be difficult. Either Del Río or his printer seems to have made a mistake over the date. Archduke Albert was Viceroy of Portugal in 1587 and did not come to the Spanish Netherlands as its Viceroy until 1596, seizing Calais from the French in the April of that year.

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nses, tum hostes, tuebantur; sub vesperam sudo coelo Procubitores duo vident nubem sub nigram advolare, et in ea videntur sibi audire confusas voces multorum, quos nulli videbant; tum alter audacior: quid hoc rei est: satin’ securi? Si videtur, librabo arcubuziam in ipsam nubem; assentitur socius; cum tonitru sclopi decidit ex nube ante pedes mulier ebria, nuda, bene obeso corpore et media aetate, femur traiecta duplici vulnere; capta, se mentis impotem simulabat, nec fere aliud adloquentibus referebat, quam: Hostesne, an foederati? Quid ad haec, qui negant transferri? Negabunt credere sese; maneant increduli, quia nec oculatis, quos possem plurimos adducere, credent; non credent, cur? Quia nec viderunt, nec audiverunt, et quosdam interrogaverunt, qui se nihil scire responderunt. Si quae quis nescit, quia nescit, ideo non vera; vere illi, et recte. An audeant profiteri se quae in domestico conclavi gesta scire omnia, nescio. Non ideo tamen minus gesta. Capiant et alia quae alii oculati testes, non auriti tantum, in Actis iudiciariis Sacramento Veritatis adacti professi fuere; verbis ipsis Nicol. Remigii Quaesitoris proponam: “Est Girumcuriae (inquit) in Vogesorum provincia castellum satis firmum, e cuius summa arce cum tegularum aliquot ordines fulmine essent deiecti Sebastiana Picarda non multo post (nempe X Kal. Novemb. 1580) in eo pago sortilegii rea forte, et id apud iudicem professa est daemonis suaque simul opera esse patratum. Cum enim (inquit) e nube una in illam proruissemus, eo consilio, ut funditus eam everteremus, non fuit tamen in nostra potestate id exsequi, sed tantum pauxillulum id ruinae attulimus, ut esset quod eius conatus nos non omnino poeniteret. Simile huic est quod sequitur, Cuninus quidam nomine, magistratum in D. Clementis fano Roncaii ubi commorabatur obtinens, Kal. Decembribus 1586, cum ruri foenum inter domesticos curaret, coelumque iam magnis tempestatibus commotum cerneret, domum fugam parabat, sed dum ad eam se instruit, subito fulminis ictu proxime se quercus sex radicibus vidit eversas, ac eam quae septima loco adhuc stabat, totam, seu ungubus laceratam ac discerptam. Cum

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boundary against the people of Boulogne, who were the enemy at the time. Just before evening, two sentries saw a dark cloud flying towards then in a clear sky and thought they could hear the voice of many people jumbled together inside it, although neither man actually saw anyone. One of the sentries, more daring than the other, said, ‘What is all this? Do you think we’re safe? If you think we are, I’ll aim my gun at that cloud.’ His companion agreed. There was a thunderclap from the gun and a woman fell down from the cloud at their feet. She was drunk, naked, very far, middle-aged, and her thigh had been shot through twice. They arrested her, but she began to pretend she was deranged and said scarcely anything in reply to what they said to her except, ‘Are you friend or foe?’ What is the point of the denials of those who say there was no metamorphosis? They will say they do not believe it and remain unbelieving because they will not believe the very large number of eye-witnesses I could produce. They will not believe it. Why? Because they have not seen it and they have not been told about it. They have also questioned a number of people who have answered that they know nothing about it. If someone says he does not know about this because he does not know about it, does that mean it isn’t true? The witnesses I mentioned are telling the truth and doing so honestly. Whether they are bold enough to declare that they know everything which is done during a Papal conclave, I don’t know. But what is done there is actually done, [whether I know what is being done or not]. Let them listen to other examples which eyewitnesses, (not just aural witnesses), bound under oath to tell the truth, have maintained in trial-records. I shall set out the actual words of Nicolas Rémy, the investigating magistrate. He says: ‘In Gironcourt in the Vosges province there is a rather strong fortress. The top of it was struck by lightning and some of its roof-tiles were torn off, and not long afterwards—that is to say, on 23rd October 1580—Sebastienne Picard who was, as it happens, being accused in that village of foretelling the future [sortilegii], acknowledged in front of the judge that the [lightning-strike] had been her work and that of her evil spirit. “We fell upon it out of a cloud”, she said, “with the intention of destroying it from top to bottom, but it was not in our power to achieve this and, so in order to avoid being entirely dissatisfied with out attempt, we made only a little part of it fall down”.’ The following example is similar. While he was staying in the Monastery of St Clement in Ronchamp, a man by the name of Cugnin obtained a licence to teach. On 1st December 1586, he and those living in the monastery were seeing to hay [for the animals] and he noticed that the sky had turned very stormy. He started to get ready to run back to the monastery, but while he was doing so, he saw six oak trees right next to him, which had been struck by an unexpected bold of lightning and torn up by the roots. A seventh, which was still standing,

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iam multo magis pro|peraret, amissis etiam prae festinatione pileo ac instrumentis iis quae tum manibus gestabat; ecce de integro audito fulminis fragore, illi visa est in summa quercu quae in propinquo erat haerere mulier, qua (ut credibile est) nubes se eo impetu exonerarat. Eam igitur consideratius intuens, cognovit e vicinia esse vetulam, quam ilico sic coepit verbis increpare: Tune pessima ea es Margareta Warina. Ad quam quantum nunc comperio non immerito ante hac sortilegii suspicio apud omnes pertinuit? Unde tu nunc nobis ades isto habitu? Cui illa: Ignosce mihi hoc quaeso, ac caelatum habe quod nunc vides? Faxo, si hoc ita de me promerueris, ut nunquam a me tibi, tuisque, vel minima oriatur iniuria. Ac ne quis de istis addubitet, sciat, non modo esse probata Cunini illius testimonio, quod iureiurando apud Quaestorem sanctissime firmavit, sed etiam ipsius Warinae agnitione, et extra tormenta saepius repetita, et in ipso vitae ultimo momento multis audientibus confirmata. Huc etiam pertinet, quod ex aliis quaestionibus capitalibus, eorumque qui eas exercuerunt fida renunciatione compertum habeo. Coorta enim magno fragore, tonitribusque tempestate, qui armenta, reliquosque pecorum greges in collis Alemanni iugo custodiebant (is ad vicinos Huecariae campos, quae est in Vogesorum praefectura, pertinet) se, ut in operto essent in proximas silvas abdiderant; ecce vero illis ex improviso visi sunt duo rustici, summis arborum quae proxime stabat ramis haerentes ac velut implicati, adeoque animis consternati, ut facile indicarent illuc non consilio, sed casu atque inauspicato aliquo impetu eo devenisse. Tum autem vestitus foeditas atque depravatio, quasi per lutum, sentesque omnes fuissent raptati suspicionem adaugebat, eo loci a magistello suo eiectos detrusosque fuisse, postquam is eos hac atque illac more suo traxisset. Confirmabatur et id eo magis, quod cum illic tanto temporis spacio consedissent; quantum satis esset ad probandam asserandamque oculorum fidem; momento tamen, advertenteque nemine dilapsi apparere desiissent. Tandem et dubitationem

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had also been completely ripped to pieces and mangled as though by talons. Because he was now in an even greater hurry, in his haste he also lost his hat and the tools he was carrying in his hands at the time. Once again, he heard another crash of lightning and, (would you credit it?) saw, clinging to the top of a nearby oak, a woman of whom, (and this is perfectly believable), a cloud had unburdened itself during that crash. Thereupon he looked at her more closely, realised that she was an elderly woman from the neighbourhood, and immediately started to berate her as follows. ‘Aren’t you that iniquitous woman, Marguerite Warens whom everyone before this has suspected—not unjustifiably, I now find—of sorcery [sortilegii]? Where have you come from in this condition?’ She said to him, ‘Please overlook this and keep quiet about what you are seeing at this moment. If you do me this service, I shall see to it that not the slightest harm will ever come to you and your family from me.’ Now, so that no one can be in any doubt about what I have said, he should be aware that it was not only proven by Cugnin’s testimony, which he most solemnly confirmed by oath in front of the investigating magistrate, but also because Warens herself admitted it, repeated her admission more than once outwith the torture-chamber, and confirmed it in the very last moment of her life in many people’s hearing. To this category, too, belongs something I found out from other criminal investigations and from the faithful account of those who conducted them. A storm arose, with a lot of thunder and lightning. Some men were keeping watch over their herds and the rest of their flocks on the ridge of a hill with a German name. (This extends in the direction of the neighbouring plains of Huécourt which is in the Vosges prefecture.) Since they were in the open, they had taken shelter in the woods which were nearest to them and, (would you believe it?), all of a sudden saw two peasants on the tops of trees which were standing nearby. They were clinging to the branches as though they were tangled up in them and were so frightened that it was easy to see they had ended up there by some unhappy misfortune, not because they had meant to do so. Moreover, all their clothes were filthy and looked as though they were covered in mud and had been dragged through thorn bushes, and this started to increase the suspicion that their ‘Little Master’35 had thrown them out and driven them away after he had dragged them from one place to another after his usual fashion. This was also confirmed even more because, after they had been

35

Magistellus, a common way of referring to the witches’ Satan.

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omnem amovit, quae non longo post tempore subsecuta est illorum ea de re spontanea, atque armentariorum verbis confirmata confessio, cum ad interrogata ex vinculis responderent. Est etiam villa, quae se Bellimonte Vitellium contendentibus sinistrorum ostendit; ibi in summum tectum cum forte et iisdem e procellosa nube praecipites decidissent; magnaque difficultate Rotarius (id erat alteri nomen) afficeretur, quemadmodum ex tam arduo loco se incolumes possent in terram demittere (nam et earum rerum adhuc erat rudis et insolens, hacque illi ad insanas huiusmodi nimborum molitiones periclitata primum fuerat abitio). Amantius, quia prima pubertate in daemonis servitutem a parentibus abductus mature se iis assuefecerat, ridens ibi infit: Bono animo es stulte, nam qui nos habet sua potestate ad difficiliora habiles atque idoneos Magister, hoc etiam negotium facile ac sine ullo negotio expediet. Nec dictum res diutius morata est. Nam subito turbine una correpti, sine ulla noxa in terram sunt depositi. Ipsa tota sic contremiscente domo, ut a fundamentis revelli videretur. Hocque ipsi diversi totidem tamen verbis recensuerunt. Imo et cum villaticis commissi, de die, deque tumultu ac trepidatione omni, inter eos libere ac constanter convenit. Ac tandem, quos vivos criminis societas coniunxerat, eosdem mortuos flamma iudicis condemnatione absumpsit.” Hucusque Remigius. Idem, lib. 3, cap. 12, cum hanc devectionem multis exemplis egregie adstruxisset, sic concludit: “Quid nostris temporibus vulgatius, quam sunt tum frequentes et assiduae sagarum de ea re assertiones; tum iis consentanea hominum testimonia, qui, non per somnium, aut magicis artibus aversos sensus, sed oculis suis vidisse se illas nubibus excussas, vel summis arboribus ac tecti | perplexas haerere, vel humi attonitas iacere, constanti sermone affirmaverunt? Nec id quidem in trivio confabulantes, sed in iure sacramento sanctissimo rogati atque adacti; uti in superiore disputatione non semel

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sitting there for long enough to convince [the shepherds] of the truth of what they were seeing, all of a sudden and without anyone’s noticing how, they fell down and ceased to be visible. Finally, the shepherds’ statement, freely made when they replied to questions when they were brought out of prison, removed all the doubt which briefly followed after they told their story about those men. There is also a village which is on the left as one goes from Bellemont to Vittel in which it so happened that those same [peasants] fell headlong from a storm cloud on to the top of a roof. Rotarius, (which is what one of them was called),36 was puzzled how they could get down to the ground safely from such an awkward place, because he was still raw and inexperienced in this kind of thing, and this had been the first time he had succeeded in leaving the violent movements made by this kind of storm cloud. But because Adamantius had been abducted into servitude to an evil spirit by his parents at the first sign of puberty, he had soon become accustomed to this kind of thing; so, he laughed and said, “Cheer up, you fool! The Master who has us in his power makes us capable of and equal to more difficult things than this, and he will easily sort out this difficulty without any further problem”. No sooner had he said this than their situation came to an end, because they were snatched up by a whirlwind and put down on the ground without being hurt at all. The house itself, however, was shaking in such a way that it seemed it was being torn away from its foundations. Each of them gave a separate account of this in exactly the same words and, what is more, after they had been brought together with people from the village, their accounts, which were consistent and frank, agreed about the date, the uproar, and all the confusion; and in the end, those who had lived together as partners in crime died in the fire to which they had been sentenced by a judge,’ [The Worship of Evil Spirits Book 1, chapter 29]. Thus far, Rémy. In Book 3, chapter 12 he added an excellent account, with many examples, of this kind of abduction and concludes as follows. ‘What is better known in our time than the frequent and persistent declarations of witches [sagarum] on this subject, and that people’s testimonies agree with what they say—people who are consistent in maintaining that they saw, with their own eyes, those women [illas] cast out of the clouds, or clinging in confusion to the tops of trees or roofs, or lying bewildered on the ground? They did not, of course, discuss this on the public highway, but after they had been brought to court and asked questions under oath, which they had taken on the most holy sacrament, just as I have indicated more than once in my earlier dis-

36

He may have been called after his craft—cf. English ‘Smith’—and so he may have been ‘wheelwright’, just as his companion, ‘Adamantius’ may have been ‘steel-worker’.

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est demonstratum.” Nonne similia accedere in Italia, quo id Grillandi Lucretiam? Nonne in Helvetiae Schiltachio, quoad Sagam illam Erasmi in Epistolis? Nonne in Batania, quoad incaute curiosum illum adolescentem Ronssei? Cur (dic Sodes) quod in Italia, Hervesia, Hollandia accidit, non potuit in Morinis contingere? Hoc ergo indicium satis firmatum. Pergo ad alia. His annumero ossa vel testas locis plane alienis corporis eorum quos oderunt insertas, vel quid simile patratum praeter naturam, ut mirificum illud quod Vafracuriae anno 1589 contigisse refert Remigius, de Iana Blasia, eam cum, quem ulcisci volebat, Claudiam Girardum invitasset: “ut una secum ad focum pauxillulum sedere non dedignaretur, atque ex pomis, quae recens ibi cocta videbat, sibi quae vellet haberet; et Girardus id facere non semel recusasset, causans sibi non esse diutius ibi morandi ocium, et omnino nullum eius cibi quem offerebat tum esse desiderium; ex pomis illis unum eius volae manus cum tanto ardore adhaesit, ut alteram ei excutiendo statim admovere cogeretur; verum dum id facit, utraque sic conglutinantur, ut in unum coaluisse viderentur, medii poni ardore interim sic increbrescente, ut res illi parum adesse ab insania. Inclamat igitur obvios quosque abtestans, ut sui miserescerent. Adferre quisque pro se ei malo quod poterat remedium; hic aquam restinguendo ardori; ille instrumenta dirimendis separandisque manibus, sed cum nihil horum quidquam prodesset, et iam palam esset id illi mala aliqua arte confectum esse negotium, ex vicinis accurrens consideratior unus monuit, uti eo reduceretur ubi illum id malum primum invasisset. Quod cum factum esset, coepit bona illa Blasia, ceu ridiculum quid contigisset, hominem ludibrio habere; nihilominusque a superiore brachio ad manum usque quod intererat tantisper demulcere,

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cussion.’ Didn’t similar things happen in Italy to [Paolo] Grillando’s Lucretia; to the wise-woman [sagam] in Schiltach, Switzerland, whom Erasmus talks about in his letters; and to the heedlessly inquisitive youth in Batavia whom [Baudouin van] Ronss talks about?37 So, tell me, if you please, could what has happened in Italy, and Switzerland, and Holland not happen in the Netherlands? As far as this kind of circumstantial evidence is concerned, the point is sufficiently proven. I now pass on to other things, and with these I include the bones or bonefragments inserted into places of what is clearly another body belonging to those [the perpetrators] hate, or something similar which is achieved beyond the normal power of Nature. An example of this is the extraordinary thing which happened in Valfroicourt in 1589, of which Rémy gives an account. It concerns Jeanne Blaise. She wanted to avenge herself on Claude Girard ‘whom she had invited to sit down with her by the hearth for a short time and he did not deign to do so. She also noted that more than once he had refused one of the apples she had baked recently and wanted him to have, that he was pretending he had no time to hang about there any longer, and that he had no desire at all for any of the food she was offering him. One of the apples stuck to the palm of his hand and was so hot that he was immediately forced to use the other hand to knock it off and remove it, but in the course of his doing this, both hands stuck together so firmly that they seemed to have turned into a single thing, and meanwhile the heat of the apple in the middle was increasing at such a rate that it was nearly driving him insane. He shouted abuse at her and then begged anyone he ran into to take pity on him. Each of them told him a remedy he thought could be effective, one saying that water would mitigate the heat, another that they should use tools to force his hands apart and separate them. Neither of these, however, did any good at all and it was now clear that his problem had been caused by some kind of evil practice. One of his neighbours gave it more careful thought and then came running to him and advised him to go back to the place where the wickedness had first taken hold of him. This he did, and Goody Blaise began by treating what had happened to him as a laughing matter or a joke. Nevertheless, in the meantime she began to stroke the arm which was the source of the trouble from the top as far as the hand

37

Paolo Grillando (early sixteenth century), A Treatise on Heretics and Divinations, Question 7, paragraphs 30–31. Erasmus (1466–1536), letter to Nicolaus Olahus, 7 November 1533. The Schiltach affair was recorded in a broadsheet of 1533 and the execution of the woman concerned illustrated in a woodcut. Baudouin van Ronss (c.1525–1596) was a well-known physician at the time. Del Río appears to be referring to his Miscellaneous Things, or Letters on Medicine (‘Miscellanea, seu Epistolae Medicinales’) which was published in 1590.

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dum id pomum illi excideret; quo facto confestim sedatus est dolor; coeperuntque ei manus libere ut ante facere officium.” Quibus indiciis annumerarim, aliud satis frequens, et quod accidit anno isto 1599 in Brabantiae oppido primario, cum maleficiatae clare et saepius obversatur figura (suppono esse alias mente sanam, nec imaginoso morbo laborantem), seu species ipsius maleficae, ei minantis, vel eam vexantis. Quamquam hoc indicium solum non sit tam efficax, quam praecedens. Item quam foret, si unus testis exceptione maior deponat se vidisse sagam propinantem equo, qui mox mortuus, potionem, aut si duo testes legitimi deponant nominatum exercuisse actum aliquem, qui ex communi maleficorum praxi solet ad maleficium dirigi, v.g. quod stans in aqua, retro tergum aquam proiecerit in aerem, vel quod ante exortam mox grandinem, visus sit lapidem ferire bacillo, vel flores de variis arboribus lectos in ollam coniicere, vel virga aut manu percutere, vel iniungere animal, quod paulo post mortuum; haec ait Binsfeld. esse indicia urgentissima, quorum unumquodque per se sufficiat ad torturam; quanto (si hoc verum, de quo subito) certius est sufficere quando accedit ad nominationem complicis? Nono, si cum capiuntur, aliqua dicunt vel faciunt, quibus significent se sibi timere a morte, actum esse de se, neque se vivas manus iudicium evasuras. Decimo, confessio extraiudicialis rei sive accusati, duobus pro|bata testibus, nisi error probetur, ita Binsfeldius. Sed hoc verum est tantum in confessione huiusmodi speciali de certo facto; non de generali, ut de incantatione tantum vel magia; item de facta; serio non ioco, necnon de verisimili atque possibili, ut postea docebo de confessione iudiciali.

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until the apple dropped out. The moment this happened, the pain was allayed, and the man’s hands started to perform their office unhindered, as before,’ [The Worship of Evil Spirits Book 2, chapter 4]. Among this kind of circumstantial evidence, I can include something else which is a not infrequent occurrence. What follows took place this year (1599) in the foremost town of Brabant. The figure of a woman who had been bewitched [maleficiatae] was clearly and quite frequently observed, (I am presuming she was otherwise of sound mind and not suffering from a distressing illness), and also the semblance of the witch [maleficae] herself, threatening or troubling her, although this piece of circumstantial evidence alone cannot be as convincing as the one I have just been talking about, and not as convincing as it would be if a single witness too important for an objection to be made against hearing his evidence deponed that he had seen a wise-woman [sagam] giving a horse something to drink and the horse had died not long afterwards: or if two lawful witnesses deponed that a named person had done something the majority of workers of harmful magic [maleficorum] usually do to send a malefice straight to its target—for example, standing in water and throwing water into the air behind his back, or being seen to strike a stone with a small stick just before a hailstorm arose, or to throw blossoms he had gathered from various trees into a jar, or to strike a living creature with his switch or his hand, or to smear something on the creature which died not long afterwards. These, says [Peter] Binsfeld, are most compelling pieces of circumstantial evidence and any one of them, by itself, is sufficient to warrant torture. How much more reliance can one put on it to be sufficient, (if it is true, which I doubt), when it comes to naming an accomplice? (9) If, when they are arrested, they say or do anything to signify that they are afraid this has been done in order to put them to death, and that they will not escape alive from the hands of their judges.38 (10) An extrajudicial confession by the defendant or ‘the accused’ which has been proven by two witnesses, (unless it is proved there has been a mistake.) This comes from Binsfeld, but when true, it merely applies to this kind of particular confession which is about a specific deed, not about something in general, such as ‘an incantation’ or ‘magic’, nothing further. The same applies when the confession is made seriously, not as a joke, and also when it is about something plausible and possible, as I shall say later in connection with judicial confession.

38

Vivas (‘alive’) is here in its feminine form and so indicates that the ‘they’ refers to women.

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Haec sunt indicia maxime verisimilia et legitima, quando, quae ad naturam atque plenitudinem eorum requisita sunt, concurrunt; et haec haud dubie non tantum faciunt cum nominatione complicis concurrentia semiplenam probationem; adeo ut sic semper unum istorum indiciorum cum nominatione tali, qualem requisivimus, sufficiat ad torturam; sed etiam ex multorum sententia, quaedam ex his sola sufficiunt, quod tamen non libenter practicarem, sed semper vellem unum ex urgentissimis, cum alio leviore, vel plura semper leviora concurrere. Conditiones autem requisitae, ut unum ex his cum denunciatione complicis ad torturam sufficiat etiam in exceptis, sunt sequentes, additae iis quas superius iam posuimus suis locis. Primo, ut talis nominatio complicis, adeo verisimilis sit, ut ultra adminicula illa, iudex ex ipso quoque testium numero, et qualitate deponentium, et persona eorum, contra quos deponitur, et aliis facti circumstantiis quasi certo credat nominantem non mentiri. Secundo, quod socius criminis socios nominans non patiatur, nisi hunc unum defectum; nam si plures habeat, etiamsi tantum duos (v.g. quod non tantum sit infamis et criminosus, sed etiam sit vilis, abiectus, aleo, vel alias inhabilis), tunc ne in exceptis quidem fecerent indicium ad inquisitionem specielam, nedum ad torturam, etiamsi in tortura suam nominationem confirmasset, quia haec unicum supplet defectum tantum, quod procedit multo fortius innominante socio criminis inimico, periuro, vel vario, et sibi contrario. Tertio, secundum quosdam nominatio unius contra eum, qui est bonae famae et existimationis non valebit cum adminiculis, ad torturam, sed valebit, cum bona fama dumtaxat debilitaret indicia contraria, ideo considerandum potius quot et quanta sint ista indicia adminiculantia, ut si non superent bonam illam famam, tum vera sit haec communis dd. limitatio, si illam superent, non debeat propterea nominatus torturam evadere.

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These are pieces of circumstantial evidence which are entirely plausible and legally admissible when those which are required [to establish] character and provide all the details are in agreement; and there is no doubt that when an accomplice is named at the same time, they not only make a half-proof, (to the extent that one of these pieces of circumstantial evidence, along with the kind of naming we have always looked for in these cases, is sufficient to warrant torture), but also, in many people’s opinion, certain of these are enough by themselves. I, however, should not willingly conduct a case like this but should always want one of these pieces of evidence to be extremely cogent and agree with another of less weight, or [I should want] more than one of this less weighty kind. But the conditions which are required to make one of these [pieces of circumstantial evidence], along with the denunciation of an accomplice, sufficient to warrant torture even in cases which fall outwith the normal legal rules, (with the addition of those I listed in order earlier), are as follows. (1) As well as the supporting circumstantial evidence, the naming of the accomplice this way should be so convincing that the judge can be more or less certain from the actual number of witnesses, the social standing of those bringing the charges, the character of those against whom the charges are being brought, and other circumstances relating to what was done, that the person naming [the accomplice] is not lying. (2) That the accomplice in crime, who is naming his accomplices, should not be allowed to do so unless the man [he is naming] has only one failing, because if he has more than just one—for example, he is not only a notorious criminal, but also a low-born, unprincipled gambler, or is otherwise an unfit person—then not even in cases which fall outwith the normal legal rules would this make a piece of circumstantial evidence warranting a special investigation, much less torture, even if he confirmed the name under torture, because his naming someone merely completes the failing he has, and it grows much more strongly in an accomplice in crime who names [his partner], and is hostile and perjured, or keeps changing his mind and contradicting himself. (3) According to some people, one person’s naming someone [male] who has a good reputation and is thought well of will not be strong enough to warrant torture, even if there is evidence to support the naming. It will be strong enough, however, should the person’s good reputation merely weaken hostile circumstantial evidence, and therefore one must rather give consideration to how many and how important these pieces of supporting evidence are. In consequence, if they do not overwhelm that good reputation, this limitation, which is commonly agreed upon by scholars, holds good. If they do overwhelm it, however, the named person ought not to escape torture on that account.

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Quarto, si deessent alia adminicula, non valeret ad torturam nominatio sponte ad nullam iudicis interrogationem a reo facta, quia haec, ne indicii quidem vim tum haberet, sed si adsint alia adminicula, vult omnino Farin. eam aeque valere ad torturam, ac valeret si ad interrogationem iudicis emansisset, et sic intelligendam communem dd. dicentium: si reus nulla praecedente interrogatione complices nominet, non facere indicium. Et sane haec distinctio, quae etiam Claro placuit, et Peguero; quoad inquisitionem, non minus aequa videtur in foro conscientiae quoad torturam. In foro externo, quia durat praesumptio, quod testis, ultro se offerens exanimi suspectus est, ideo tutius illic iudex faceret sequendo communem. Porro quo ad duplicem casum, quem addit Farin. n. 192, scilicet procedere illam communem primo quando quis nec carceratus, nec a iudice requisitus sponte iudicem adit, et revelat crimen complicis; secundo, quando quis sponte revelat delictum, de quo sibi impunitas promissa a iudice retione hac, quia primo casu tunc praesumitur denunciator sive accusator, secundo casu praesumitur corruptus promissione impunitatis. Equidem, quia utrumque fundatur in praesumptione iuris, potius quam in facti veritate; putarem inconscientiae foro, ubi veritas tantum attenditur posse iudicem hac nominatione, re bene perpensa | uti ad inquirendum saltem, nam ad torquendum, non censeo. Sciendum, quinto, non prodesse adminicula quando tortura, in qua nominatus fuit socius non fuit legitime peracta seu decreta, puta sine praecedentibus indiciis: Farinac. post alios n. 193. et seq. Denique non valere dictum socii criminis ad torturam, etiam cura adminiculis, si potuit veritas actu vel habitu aliter haberi, quidam putant; sed eos merito

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(4) If other pieces of supporting evidence were missing, a nomination made by the accused during any investigation by a judge would not be able, of itself, to warrant torture because under those circumstances it would not have the force even of a formal accusation. But if other pieces of supporting evidence are present, Farinaccio is entirely of the opinion that this naming could warrant torture and could do so equally well if it had arisen during the course of a judge’s investigation. This is the common understanding of scholars, who say that if the accused names his accomplices without any preceding judicial investigation, that does not amount to circumstantial evidence; and certainly, this distinction, with which [Giulio] Claro and [Lluis de] Peguera39 agreed with regard to an investigation, seems no less fair in the court of conscience than it does with regard to torture. In a court open to the public, because there is a long-lasting presumption that a witness who voluntarily offers himself for examination is suspicious, the judge would do better to follow common [practice]. Now, with regard to the double case which Farinacci adds in number 192—that common practice is observed, first, when someone who has not been imprisoned and has not be summoned by a judge comes to a judge of his own accord and reveals an accomplice’s crime, and secondly, when someone of his own accord reveals an offence, in return for which he has been promised immunity by a judge—(i) in that case it is presumed there is a prosecutor or accuser, and (ii) it is presumed that he has been seduced by the promise of impunity. Indeed, because both [these points] are grounded in a legal presumption rather than actual fact, I should have thought that in the court of conscience, where only truth is considered, after he has given the matter careful thought, the judge can make use of this nomination to warrant an inquiry, at any rate, because I do not think he can use it to warrant torture. (5) One needs to be aware that when the torture during which the accomplice has been named has not been legally carried out or ordered, (that is to say, in the absence of preceding circumstantial evidence), supporting evidence is of no use. (See Farinacci, numbers 193 and following, in which he is following what others have said.) (6) Finally, some people think that the word of an accomplice in crime is not sufficient to warrant torture, even when accompanied by supporting evidence if the truth could be gathered otherwise, from his actions or his behaviour.

39

Lluis de Peguera, (1540–1610), was a Catalan jurist who published several works on the conduct of criminal and civil trials. Del Río is referring here to his Important Decisions (‘Decisiones Aureae in Actu Practico Frequentes’), which was published in 1605.

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refellit Menochius cas. 474 n. 62, quem sequitur Farinac. n. 195, d. q. 43. Ex quo restant quaedam breviter addenda, de indicio famae, fugae et minarum. Quartum indicium est famae indicium, de quo sciendum ut fama sit idonea pro indicio, debere ortam esse a viris, nisi sit de re melius vel aeque perspecta foeminis, hoc est quando factum amplius vel aeque foeminas tangit, verbi gratia, de maleficio aborsus, vel sterilitatis, vel infanticidio et simil; ideo in strigarum delictis potest fama originem ducere a foeminis aeque ac viris. Item debet esse fama solida, non levis, non vaga aut varia, aut decrescens, aut contraria; sed constans, crescens, et uniformis ac eadem in toto populo; alias, quando famae sunt contrariae, si simul sunt ortae, et testes utrimque sint pares, ut et verisimilitudines aequales, negativa tollit affirmativam, bona malam, et censetur negativa, etiam quando testes aliqui dicunt se nihil scire, quia per hoc satis indicant non fuisse famam in toto populo. Si famae simul non sint ortae, posterior tollit priorem, nisi prior nitatur meliori testimonio, vel verisimiliori causa; tunc enim prior non tolleretur. Tertio, debet fama orta fuisse tempore delicti commissi, vel statim post, non ex longo intervallo, nedum post accusationem, inquisitionem, vel incarcerationem, nisi tamen causa, ex qua fama sumpsit originem, supervenerit post longum intervallum, accusationem, inquisitionem, vel incarcerationem, quia tunc quandocumque supervenerit famae causa, validum indicium fama praebebit; ratio est quia non potuit ante initium sumere, cum effectus causa sit posterior. Quarto, ut fama aliquid operetur, debet esse fama in loco delicti commissi nec sufficit si sit alibi; locus autem delicti iuxta qualitatem et facti exigentiam latius, protenditur, vel in vicinia tantum, vel in parte oppidi, vel in toto oppido, vel in tota provincia.

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[Giacomo] Menocchio, case 474, number 62, quite properly rebuts them and Farinacci follows him in number 195 of question 43, which I have already cited. So now there remain certain points to be added briefly, about circumstantial evidence involving reputation, running away, and making threats. The fourth piece of circumstantial evidence is that of reputation. As far as this is concerned, (i) one needs to be aware that in order for the reputation to act as a piece of circumstantial evidence, it should have arisen with men, unless women have a better or equally good perspective on the subject. This happens when what has been done affects women more or less equally—for example, an abortion, or barrenness, or the death of a child, and so forth, caused by an act of harmful magic [maleficio]. So, when it comes to witches’ [strigarum] offences, reputation can stem from women just as well as from men. Likewise, (ii) the reputation should be one which is firmly established, not one which is of no importance, or vague, or changing, or on the wane, or contradictory, but one which is firmly established, increasing, and uniform, with the whole population saying the same thing. When reputations are contradictory, if they have arisen at the same time and witnesses on both sides are evenly balanced and what they say is equally plausible, a negative reputation cancels out a positive and a good reputation cancels out a bad one and considered to be negative, even when some witnesses say they know nothing, because under these circumstances [witnesses] are saying clearly enough that the whole population has not been saying the same thing. If reputations have not arisen at the same time, the later reputation cancels out the earlier unless the earlier is supported by better testimony or has a more likely reason to explain it, because under those circumstances the earlier reputation is not cancelled out. (iii) The reputation should have arisen at the time the offence was committed, or immediately afterwards, not after a long interval, much less after the person has been charged, investigated, or imprisoned, unless what has caused the reputation has arisen after a long interval, or after the person has been charged, investigated, or imprisoned, because under those circumstances, no matter when the reason for the reputation arose, the reputation will provide a valid piece of circumstantial evidence, the reason being that it could not have started before because, on account of the effect it has, it must be later. (iv) For a reputation to have an effect, it should be one which stems from the place in which the offence was committed, and it is not [legally] sufficient if it stems from somewhere else. The ‘place’ where the offence was committed may, according to the nature of the offence and what the deed called on [the perpetrator] to do, have a fairly wide meaning and refer either simply to the general vicinity in which the offence was committed, or to part of a town, the whole town, or the whole district.

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Quinto, debet fama nec esse procurata nec affectata: ratio quia haec non est fama, sed hypocrisis et fictio. Sexto, debet fama haec mala per bonam famam non fuisse deleta; magna enim sunt bonae famae privilegia; nam paribus momentis iudex debet inclinare in bonam famam, testes non multo pauciores deponentes de bona fama praeferuntur deponentibus pluribus de mala. Fama bona in genere tollit malam in genere et in specie, est communis, et vera, quando mala in specie non est adiuta alio indicio; tunc enim puto tantum illam debilitaret, ut colligo ex dictis Vulpelli, Clari et Bossi coniunctis prout illa posuit Farinac. n. 197 et seqq.; tollit etiam omnem aliam delicti praesumptionem et indicium, adeo ut reum torquendum ex indiciis legitimis specificis praecedentibus, eripiat torturae; secundum nonnullos, quorum sententia a quibusdam communis vocatur; attamen contraria est multorum melius rem discutientium, et praxi, et rationi magis consentanea, ut dumtaxat bona haec fama, quando ad malam famam accedit aliquod aliud indicium; minuat et debilitet indicia, non vero plane tollat, idque | adhuc solummodo si indicia levia et qualia; qualia, non vero si sint particularia, aut gravia; et ideo adhuc posse tunc reum torqueri. Sed tamen (ut aliquid etiam bona fama operetur) debebit levius torqueri, quae videtur sententia Casoni et Farinacius addit hanc esse veritatem, et secundum eam

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(v) The reputation should not have been carefully cultivated or affected, the reason being that this is not a reputation, but a piece of hypocrisy and fiction. (vi) This reputation should not be bad because a good reputation has been destroyed. The laws in favour of a good reputation are weighty and, circumstances being equal, a judge ought to lean in favour of a good reputation when witnesses offering evidence about a person’s good reputation are not much fewer in number than those offering evidence about his bad reputation. A reputation which is generally good, commonly held, and genuine cancels out one which is both generally and specifically bad when the specifically bad one is not supported by other circumstantial evidence, because under those circumstances the [bad one] would merely weaken the good one, (which is what I gather from [Ottaviano] Volpelli,40 [Giulio] Claro, and [Egidio] Bossi have said, as they appear in Farinacci, number 197 and following.) According to several people whose opinion, certain individuals say, is the common one, a good reputation even cancels out every other presumption and piece of circumstantial evidence suggesting that the person has committed the offence, to the extent that it removes from torture an accused person who, on the strength of preceding specific legally admissible circumstantial evidence, should be tortured. Many of those who discuss the subject rather better, however, think the opposite is more in tune with practice and reason, and that when this good reputation comes into contact with a bad reputation, it diminishes any circumstantial evidence which differs from it and weakens it, (although obviously it does not cancel it out.) Furthermore, it does so only if the circumstantial evidence is unimportant and extremely general, not if it is specific and serious. Therefore, under those circumstances, it is still possible for the accused to be tortured although, (so that his good reputation can still have some kind of effect), this should mean that the torture will be fairly light. This appears to be [Francesco] Casoni’s opinion41 and Farinacci adds that this is perfectly correct and that he had always seen judgement given universally in accordance with it.42 He also

40

41

42

Ottaviano Volpelli, floruit sixteenth century. A revised and corrected version of his First Book of Legal Replies and Allegations in Criminal Cases was published in Venice in 1581. Del Río, however, is not referring to him directly, but only via Farinacci’s citations. Francesco Casoni, (1500–1564), published Two Treatises on Circumstantial Evidence and Torture (‘De Indiciis et Tormentis Tractatus Duo’) in Venice in 1557. On Casoni’s changing thoughts about the use of torture in criminal trials, see further John Jeffries Martin, ‘Francesco Casoni and the rhetorical forensics of the body’, Journal of Mediaeval and Early Modern Studies 45 (1), 2015, pp. 103–130. ‘Universally’ = reading ‘indistincte’ instead of ‘instincte’ which does not make good sense.

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instincte semper se vidisse iudicari. Plura etiam idem de mala fama (a n. 185 usque ad fin. q. 47) quae sic breviter cape commodiori ordine et clarius tradita. Mala fama in genere alicuius facti facit delicti praesumptionem, dummodo mala fama sit in eodem delicti genere de quo quis inquiritur; et si accedant alia adminicula sufficiet ad torturam, sive sit persona vilis, sive non, et sive sit delictum difficilis probationis sive non, nam dd. qui quoad personam vilem, et in delictis quae sunt difficilis probationis, putant non requiri ad torturam alia indicia, praeter famam malam in eodem delicti genere; saevi nimis sunt et adferunt non admodum consentanea iuri, quare Farinacius eos merito reprehendit; ideo nec in maleficiis quidem putarim iudicem absolvendum, qui hanc crudelitatem amplecteretur. Famam exacte probare, quam necessarium, tam rarum est in iudiciis: adeo ut Grammat. Senator Neapolitanus scripserit se nunquam vidisse processum in quo repererit famam publicam legitime fuisse probatam, quod et Iulius Clarus, et Vulpel. et alii egregii partim iudices, partim advocati asseruerunt. Quare cum in nostra materia, plerumque contra sagas et striges ex famae indicio procedatur, pergam eos iuvare, quibus deest larga supellex libraria, vel ocium ingentia illa volumina Farinacii, Bossii, Mascardi et al. percurrendi. Ad famam probandam requiritur, primo, ut testes ad minus sint duo, nec sufficit unus omni exceptione maior, sed ut minimum duo esse debent spectatae, integrae, et optimae opiniones ac fidei; atque idipsum, quod sint tales, articulandum et probandum in processu, iuri communi magis consentaneum est; quando agitur ad inquisitionem particularem vel torturam, immo non bene

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adds more remarks about evil reputation, (in number 185 to the end of question 47), which have thus been handed down briefly, that is to say, more clearly and in a more convenient order. A bad reputation in general, relating to an offence which has been committed, creates an assumption, as long as the bad reputation relates to the same kind of offence as the one which is being investigated, and if a number of pieces of supporting evidence are present as well, that will be enough to warrant torture, whether the individual concerned is of low social status or not, and whether the offence is difficult to prove or not. Now, there are scholars who think that circumstantial evidence other than a bad reputation in respect of this type of offence in general is not required to warrant torture in the case of someone of low social status and offences which are difficult to prove; but they are much too severe, and their opinion is not at all consistent with the law, and so Farinacci quite rightly rebukes them. Consequently, I should certainly be inclined to think that in cases of acts of harmful magic [maleficiis], a judge who embraced this cruelty should not escape criticism. Proving a reputation with accuracy is as rare as it is necessary in criminal trials, to the extent that [Tommaso] Grammatico, a senator from Naples, wrote that he had never seen a trial in which he could find that a public reputation had been legally proven, and Giulio Claro, [Ottaviano] Volpelli, and other distinguished people, some judges, others advocates, have said the same.43 For this reason, since (in the subject under discussion here) wise-women [sagas] and witches [striges] are charged largely because of circumstantial evidence relating to their reputation, I shall try to help those people who lack a plentiful store of books, or who have not the free time to read the enormous volumes of Farinacci, [Egidio] Bossi, [Giuseppe] Mascardi, and others.44 (1) In order to prove a reputation, it is required that there be at least two witnesses—one too important for his evidence not to be heard is not enough— and at the very least there must be two opinions which stem from a tried and tested, correct, and morally impeccable faith, and if they are such, it complies better with the common law that this be stated clearly and tested in a court of law. When it is a question of holding a special investigation or ordering the

43 44

Tommaso Grammatico, (1473–1556), had a distinguished career as a jurist in Naples. Del Río seems to be relying on Farinacci for this reference to him. Giuseppe Mascardi, (1540/45–1585), was a jurist and vicar general of the diocese of Bologna. He worked for many years on a treatise dealing with the rules of evidence— Conclusions of all the Proofs which are daily given in both Ecclesiastical and Secular Courts—and was falsely accused of plagiarism. The first two volumes of his work appeared in Venice in 1584.

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faciunt iudices, qui communiter hoc solent praetermittere, licet aliquos pro se habeant dd. revera enim fundamentum istorum; quod unusquisque praesumatur idoneus et omni exceptione maior testis in re tanti momenti, leviusculum est. Secundo, requiritur ut etiam non interrogati testes de fama exprimant causas, indicia et coniecturas, quibus orta est fama, nec sufficeret quod dicant se audivisse a multis, vel publice, vel ita esse publicam famam, nisi et causas et illa alia adderent; quibus additis, sufficeret dicere se ita audivisse publice dici, de quo statim amplius. Tertio, requiritur ut testis sciat saltem rudi Minerva describere (non enim opus est exacta definitione, quam vix iuristae et advocati possunt dare) quid sit fama, de qua deponit; saltem sic ut appareat iudici eum satis intelligere; quare reiici deberet, qui diceret se nescire, vel diceret esse id quod per plures personas dicitur, vel quod publice dicitur, vel quod per istum aut illum dicitur; sufficeret autem, nec de hoc interrogandus esse, si ex praecedentibus iudici constaret testem satis intelligere, quid sit fama. Quarto, requiritur ut specifice deponat de famam illic ipsis articulis in quibus fama est articulata, nec sufficeret quod in sine poneretur generalis clausula de | fama praeced. omnium, etc. Quinto, requiritur ut debeant exprimi auctores, a quibus fama est orta, et quidem probabilius est id obtinere, etiamsi interrogati de hoc non forent, et quod nominati isti debeant esse alii, quam contestes, nec sufficeret dicere se audivisse a maiori parte populi, si postea diceret se non recordari, a quibus nec ullos posset nominare. Nam si aliquos nominaret, et diceret se reliquorum non tenere nomina hoc sufficeret; immo si fama foret orta ex probabilibus coniecturis et causis, hoc quintum requisitum cessaret. Sexto requiritur ut dicant testes se audivisse a maiori parte populi, vel ita dici a maiori populi parte (si addant illius civitatis, vel etiam si id non addant,

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administration of torture, judges who generally make a habit of neglecting to do this are certainly not behaving as they should, (although they do have the support of some scholars.) But their fundamental proposition—that each person should be presumed to be a suitable witness and one too important not to be heard in a matter of such great import—is flimsy. (2) It is required that even witnesses who have not been questioned about a reputation explain the reasons, the circumstantial evidence, and the conjectures which have given rise to it, and it would not be sufficient for them to say that they had heard it from many people, or that it was public knowledge, or that this was a reputation everyone knew about, unless they were to add both the reasons [for it] and the other things I mentioned; and when these have been added, it would be sufficient to say that they had heard it spoken about publicly. (I shall say more about this in a moment.) (3) It is required that a witness at least know how to put down on paper plainly and simply what is the reputation he is deponing—at least [to do it] in such a way that it appears to the judge that the witness has a satisfactory understanding of what he is saying. (There is no need for a precise description, which legal experts and advocates are only hardly in a position to be able to provide.) Consequently, [the judge] ought to reject anyone who says he does not know [how to write], or says it is what is said by several people, or what is said publicly, or what is said by this or that individual. But it would be sufficient, (and he should not be questioned about it), if the preceding evidence makes it clear to the judge that the witness does have a satisfactory understanding of what the reputation is. (4) It is required that he depone in detail about the reputation in the actual clauses in which the reputation is laid out. It would not be sufficient to put a general conclusion about the reputation at the very end of the preceding clauses. (5) It is required that those who started the reputation be expressly named, and indeed it is quite a good idea to obtain this information, even if they are not questioned about the reputation, and those who have been named should be people other than co-witnesses. It would not be sufficient [for someone] to say he had heard the reputation from the major part of the population if, later on, he were to say he did not remember from whom he heard it and could not name any of [his sources]. If he were to name some people and say he did not remember the names of the rest, this would be sufficient, and indeed if the reputation were to arise from plausible guesses and causes, this fifth requirement would be null and void. (6) It is required that witnesses say they heard the reputation from the major part of the population, or that it was what the major part of the population was

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quia satis hoc intelligitur (a maiori inquam) parte populi id publice dicentis, vel privatim); nec necesse est addi, et ita maiorem populi partem sentire sufficit etiam si dicant se audisse sic dici per totam civitatem; non sufficeret si dicant se audisse a mille personis, vel a diversis personis, vel a multis personis, vel a pluribus et pluribus personis, quia nihil istorum significat maiorem partem populi. Sed quid si dicant se ita audivisse se publice dici, vel ita esse publicam vocem, seu famam? Tunc distinguendum: nam in criminalibus quando agitur dumtaxat an habendam semiplenam probationem (v.g. ad torturam) hoc sufficeret, quando testes simul adducerent causas et coniecturas verisimiles, unde orta esset famam civilibus vero hoc non sufficeret, et sic conciliat Bald. et Bart. contrarias opiniones Prosper Farinarius, sup. n. 259 cum seqq. Septimo, requirunt nonnulli plures hos testes non esse singulares, sed verius est, hoc non requiri et famam sive bonam sive malam posse probari per testes singulares, dummodo non sint contestes in specie famae irrogatae. Octavo, fama probatur per decem testes, etiamsi non sint uniformes, dummodo causas et auctores famae bene exprimant, et alias sint testes habiles; tamen non sufficient ad torturam, nisi concurrant alia adminicula Nono, probari potest fama etiam per scripturam, ut litteras bonorum virorum, per privilegia, et instrumenta antiqua et alias scripturas authenticas; scripturae autem non possunt esse pauciores duabus, imo saltem tres, et debent habere originem a diversis personis. Haec de probatione famae in specie. Bonae famae in specie probandae haec est regula, quod unusquisque praesumitur in suo artificio vel statu (etiamsi carnifex foret) bonus, donec probetur malus; maxime si sit natus ex bona patria, vel ex bonis parentibus vel si sit nobilis et dives, vel bene educatus; et ideo etiam quis praesumitur bonae famae, nisi tamen adesset sceleris aliqua praesumptio specialis, quia haec excludit praesumptionem generalem. Fallit etiam regula illa, quando agitur de praeiudicio

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saying, if they add ‘of the city of X’, (or even if they do not add that), because it is understood well enough that this means ‘by a major part of the population who are saying this in public or in private’, and so it is not necessary to add the rider. Therefore, it is sufficient for the major part of the population to have that impression, even if [the witnesses] say they heard it said ‘by the whole civic body’. It would not be sufficient if they say they heard it from a thousand individuals, or from various individuals, or from many individuals, or from more and more individuals, because none of these phrases signifies a major part of the population. But what if they say they had heard it said publicly, or that this was what the public was saying, or that this was [the person’s] public reputation? Under those circumstances one has to make a distinction, because in criminal trials, when it is simply a question of whether one can have an incomplete proof, such as torture, this would be sufficient, since witnesses would simultaneously be adducing likely causes and conjectures [to explain] whence the reputation had arisen. But in civil trials, this would not be sufficient. (This is how Prospero Farinacci reconciles the opposing opinions of Baldo [degli Ubaldi] and Bartolo [da Sassoferato] in op.cit. supra, number 259 and the following passages.) (7) Several people require that these witnesses not be single individuals, but it is more accurate to say that the requirement is that the reputation, whether good or bad, can be proved by individual witnesses, as long as they are not cowitnesses in this specific case. (8) Reputation is proved by ten witnesses, even if they are not uniformly consistent, as long as they give a good explanation of the causes and originators of the reputation and are in other respects suitable witnesses. They will not be sufficient, however, to warrant torture unless other pieces of supporting evidence agree with them. (9) Reputation can be proved by written evidence, too, such as letters by men of good moral standing, legal enactments relating to the individual, longstanding documents, and other original writings. These writings, however, cannot be fewer than two in number—indeed, [there should be] at least three— and they should stem from different people. This is [what I have to say] about the proof of reputation in a particular case. The following is the rule for proving a good reputation in a particular case. Each person is presumed to be good in respect of his employment or social status, (even if he were to be a public executioner), until it be proved he is bad, especially if he was born in a good neighbourhood, or of good parents, or if he is well-born and rich, or well-educated. Consequently, anyone is also presumed to be of good reputation unless there were to be some specific presumption of wrong-doing, because this excludes the general assumption. The rule is also

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tertii, tunc enim huiusmodi bona fama est probanda, item quando haec praesumptio bonae famae redundaret in praeiudicium eius pro quo praesumitur (de quo vide Menoch. lib. 5, De praesumpt., 1 a n. 20); item fallit in eo qui alias fuit malus malaeque famae; item in eo qui dat operam rei malae sive illicitae. Ad probationem famae bonae vel malae in genere requiruntur eadem quae ad probationem eius in specie; unde valet argumentum a fama in specie ad famam in genere. Quintum est indicium fugae, de hoc regula prima est quod fuga ante inquisitionem formatam vel accusationem porrectam, | contra fugientem gignit ordinarie suspicionem et praesumptionem non levem doli et delicti commissi; non tamen sola, sine adminiculo alio, facit semiplenam probationem, quare neque sufficit sola ad torturam quicquid multi dixerint; et loquor de fuga, quoad ipsum fugientem; nam de fuga complicis, non arbitror unquam illam facere indicium contra complicem inculpatum, hoc est contra quem non sunt alia indicia, fugientem autem intelligo, etiam illum qui occulte latitat in civitate aut loco ubi habitat; eum quoque, quem ex signis evidentibus constat fugam adornare, idque magis si accesserit contumacia adversus citationem, vel etiam fugerit per loca invia et insolita, puta per saltus aut nemora, quae non sunt in transitu, vel si inventus in delicto aut praeparatione, clamore populi fugatus fuit, quo casu etiam denegatis defensionibus posset torqueri, si clamor populi sit ortus ex probabili et verisimili causa, ad opinandum quod volebat delictum committere, sed clamore fuit impeditus. Quod si metuit subito, et ex improviso se coniiciendum in carcerem, antequam capiatur; fugiens vel se occultans non praebet fuga indicium idoneum ad torturam; multo minus, si iam captus ex manibus satellitum et ministrorum iustitiae se eripiat, quantumvis iuridica et legitima sit captura, quod diligenter notandum contra multos; et verissisimum est quando quis etiam ex intervallo postquam elapsus fuit,

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misleading when one is dealing with a third person’s prejudice, because under those circumstances this kind of good reputation has to be proved, and it is also misleading, since this presumption of good reputation would redound to the prejudice of the person on whose behalf it is being presumed. (On this, see [Giacomo] Menocchio, Presumptions Book 5, number 20.) It is likewise misleading in the case of a person who under other circumstances has been wicked and had a bad reputation, and likewise in the case of someone who abets a wicked or illegal act. In order to prove a reputation good or bad in general, the same things are required as for proving a person’s reputation specifically. Hence the argument from reputation in particular, to reputation in particular, to reputation in general is a valid one. The fifth [piece of circumstantial evidence] is the evidence provided by flight. The first rule in connection with this is that running away before an investigation has been instituted, or a charge has been brought, usually gives rise to suspicion against the fugitive and the presumption, (not a light one, either), that he has done something wrong and committed an offence. But this alone does not make a half-proof without another piece of supporting evidence, and therefore it is not sufficient by itself to warrant torture either, whatever many people may have said. Now, I am talking about flight in relation to the actual fugitive, not about the flight of an accomplice, because I do not think that that ever furnishes circumstantial evidence to inculpate the accomplice—that is, in the case of someone against whom there are no other pieces of circumstantial evidence. I also interpret ‘fugitive’ to mean someone who hides away in secret in the city or the place where he lives: and someone who gives obvious signs of running away, the more so if he has been contumacious upon being cited [to appear in court], or has run away via places which are inaccessible or not usually frequented, such as mountain passes or woodland, which are not [normally] passages from one place to another: or if someone has been discovered committing or preparing to commit an offence and has fled as the result of a popular outcry. In this case he has denied himself opportunities to defend himself, and he could be tortured if the outcry arose from probable and likely cause so that it can be thought he wanted to commit the offence but was prevented from doing so by the outcry. If he is afraid he will be thrown into prison suddenly and without warning, and runs away or hides before he can be arrested, this flight does not furnish circumstantial evidence sufficient to warrant torture—much less so if, once he has been arrested, he escapes from the hands of the sergeants and officers of justice, even though he has been arrested legally and inconformity with due legal process. This should be noted carefully, (since many people disagree), because it is also entirely applicable when there is an interval after someone has escaped

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vel sponte iterum comparet, vel invitus iterum captus fuit; quod maxime obtinet in iis qui vel propter debilitatem carceris incommoda aegre possunt ferre, ut de se testatur Demosthenes, vel quibus admodum verecundum sit incarcerari, propter genus, vel dignitatem, vel professionem. Sponte dicitur rediisse, qui cum possit iterum fugere, permittit se capi vel citatus comparet. Est autem haec spontanea comparitio (si ante banum fiat) adeo potens, ut fugam plane expurget, caetera vero indicia omnia debilitet; ideo si propter illa antea poterat torqueri, iudex eum iam non poterit torquere, ex plurimorum dd. sententia, vel non poterit nisi levius multo torquere, iuxt. Farin. n. 55. reg. 2 est post accusationem vel inquisitionem fuga in criminalibus causis, quando agitur de poena luenda in corpore, adhuc non praebet indicium sufficiens ad torturam, etiamsi accederent alia adminicula: nam adminicula haec tantum ante inquisitionem operantur et non postquam fuit inquisitio caepta, quia post inquisitionem caeptam fuga non praebet ullum indicium; et ideo alia indicia huic non possunt adminiculari, quod nullum est. Quod si alia indicia sint multa, et urgentia, ac gravia, illa vim suam habebunt, non vero huic, quod nullum est, adminiculari sunt dicenda. reg. 3: Haec obtinere puto etiamsi iudex non habeat famam crudelis, neque comminatus sit se male tractarurum; ratio quia molestiae iudiciales, et gravissima causarum criminalium incommoda revera sunt iusta metus et fugae causa; quando vero illorum duorum alterum accederet, fatentur omnes fugam nullum indicium praebere. reg. 4: Fuga cum quantumvis multis adminiculis aliis, non sufficit ad condemnandum poena corporali vel ordinaria; si vero esset iuncta cum uno teste exceptione omni maiore et oculato, tunc posset sufficere ad condemnationem poenae pecuniariae et extraordina|riae. reg. 5: Causa probabilis fugae probatur, per iusiurandum fugientis, quando constat de causa probabili; etiamsi praesumi aliunde possit eum non prop-

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and he either appears again of his own accord, or has been arrested a second time, against his will; and this is particularly relevant in the case of those who either cannot stand the rigours of prison because of their physical weakness, (as Demosthenes said about himself), or for whom imprisonment is a great source of shame because of their family, their official position, or their profession. Someone is said to have returned of his own accord when he can run away again but allows himself to be arrested or appears in court when cited; and this willing appearance, (should it happen before his citation), is so powerful that it clearly absolves him for having run away and weakens every other piece of circumstantial evidence. Therefore, if it was possible for him to be tortured before on account of that circumstantial evidence, the judge will not be able to torture him now, (which is the opinion of most scholars), or, (according to Farinacci, number 55), will be able to have him tortured only rather lightly. Rule 2: In criminal cases when the infliction of corporal punishment is involved, flight after the charge has been brought or the investigation has been started does not yet furnish sufficient circumstantial evidence to warrant torture, even if there were to be other pieces of supporting evidence, because this supporting evidence is effectual only before an investigation, not after the investigation has begun. Once the investigation has been started, flight does not provide any circumstantial evidence, and therefore other corroborative evidence cannot offer support to a piece of circumstantial evidence which does not exist. If there are many other, serious, compelling pieces of circumstantial evidence, they will be influential, but when it comes to circumstantial evidence which does not exist, they cannot be said to lend it support. Rule 3: I think that what I have just been saying is relevant, even if a judge does not have a reputation for being cruel and has not threatened to conduct the trial to the detriment [of the accused]. The reason is that the distress caused by judges and the very serious detriments of criminal trials [to the person concerned] are actually a justified cause of fear and flight, and so when either of these is present, everyone says that flight does not provide circumstantial evidence. Rule 4: No matter how many other pieces of corroborative evidence there may be, flight is not sufficient to warrant sentencing someone to corporal (or a standard) punishment. But if it were to be conjoined with [the evidence] of an eye-witness who was much too important not to have his evidence heard, under those circumstances it could be sufficient to warrant sentencing [the person] to a financial penalty, (one left to the discretion of the judge.) Rule 5: A probable cause of flight is proved by the fugitive’s swearing an oath, when there is general agreement about the probable cause [of his flight], even if it can be presumed from other sources that he left, not for this reason,

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ter hanc causam, sed propter delictum discessisse: verbi gratia, dicit quis se discessisse quia timebat accusari vel incarcerari; si constet haec comminata vel praeparata fuisse, statur iuramento quod ob eam causam discesserit. Sextum est indicium minarum, circa quod nota differre iactantiam a minis. Iactitare se dicitur, qui dicit se posse ultionem sumere, offendere, delinquere, etc., si vellet; minari vero, qui dicit se velle facere, sive se facturum; haec duo perperam nonnulli confundunt, etiam in aliis rebus. Sit conclusio: quoad minarum iudicium, quando damnum vel delictum est subsecutum, communis sententia est, sive iactaverit quis se, sive minatus fuerit, efficax hoc indicium esse ad torturam; quando minans vel iactans est persona potens, malae vitae, et solita minas exsequi: intellige si sit dubium quis delictum commiserit, et minator in hoc ipso delicto sit malae famae. Ratio est quia in hoc casu idem est animus iactantis et minantis, hoc verum in foro externo quia talis illic praesumitur; in interno tamen foro, puto inter minas et iactantiam distinguendum confessario; et diligenter quaerendum an iactitarit animo adimplendi, necne. Nam gravius longe est peccatum eius qui iactitavit vel minatus cum desiderio exsequendi et exsecutus; immo duplex est peccatum. Similiter in foro externo idem est, si quis expresse vel tecite sive aenigmatice minetur occidere, aut vulnerare (verbi gratia, faciam ne doleat tibi caput, extraham tibi pennam de ala, etc.), sed in foro interno in aequivoca seu obscura locutione scrutanda est mens loquentis. Et hoc quod diximus de homine malae famae et solito exsequi, locum habet quando non accedunt alia adminiculantia indicia, nam si accederent alia, tunc ex solis minis, et mox subsecuto delicto posset subiici torturae etiam non solitus exsequi. Haec limitanda, primo si offensus haberet alios etiam inimicos praeter minantem; tum enim debet iudex esse valde circumspectus, et considerare an

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but because he had committed the offence. For example, someone says he left because he was afraid of being accused or of being imprisoned. If there is general agreement that these threats had been made or preparations made [to have him imprisoned], his oath may determine that he did leave for this reason. The sixth [piece of circumstantial evidence] is that of threats. Note, in connection with this, that there is a difference between bragging and making threats. It is called bragging when someone says he can take revenge on someone, do him harm, do him wrong, etc. if he wanted to do so. It is called making threats when someone says he wants to do this, or that he is going to do it. Several people mistakenly confuse these two things, as they do other things, too. As far as circumstantial evidence involving threats is concerned, one’s conclusion should be that when this is closely followed by [financial] loss or [by the commission of some kind of] offence, the generally-held opinion—whether someone has issued a brag or a threat—is that when the person making the threat or the brag is someone who is powerful, of evil life, and in the habit of following up his threats, this is a piece of circumstantial evidence sufficient to warrant torture. (By this I mean if there is any doubt about who has committed the offence and the person making the threats in connection with this offence is someone of evil life.) The reason is that in this case the intention of the bragger and the threatener amounts to the same thing. This is true in an external court [of law] because this is what the court presumes. In the internal court [of conscience], however, I think a confessor must distinguish between threatening and bragging, and carefully ask whether the person has boasted intentionally that he will fulfil [his threat] or not, because the person who boasted or threatened that he was willing to follow it up, and did so, has committed a much more serious sin, and indeed it is a sin twice over. Likewise, in an external court [of law], it is the same if someone openly, or tacitly, or enigmatically threatens to murder or wound someone, (for example, ‘I’ll cure your headache’, ‘I’ll clip your wings’, etc.), but in the internal court [of conscience] the speaker’s intention must be subject to examination for equivocal or obscure meaning in the language he is using. What I have said about a person of bad reputation who is in the habit of following up [his threats] is relevant, too, when other corroborative evidence is not available, because if it were, he could be subjected to torture, simply because of the threats and the offence following not long afterwards, even though he was not in the habit of following up his threats. But what I have said here needs to be limited (i) if the person who has been harmed had other enemies apart from the one making the threats, because then the judge ought to be most circumspect and consider whether the threats

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sufficientes sint minae, et an forte alius inimicus hoc tegmine fretus offenderit, ut narrat accidisse Paris de Puteo, et ex eo alii. Secundo limit. quando delictum non esset subsecutum incontinenti, sed ex intervallo; hoc autem decernere permittitur iudicis arbitrio, qui considerare debet qualitatem personarum, et an ante habuerit opportunitatem delicti committendi; nam si statim non habuit, et fecit statim ac eam nactus est, intervallum nihil elevat indicium. Tertio fallit quod diximus esse indicium sufficiens huiusmodi minas, si sint ambiguae, et quae possunt significare vindictam legitimam sive iuris et licito modo (verbi gratia, ulciscar solves, poenitebit te, non sic abibit et talia), quod certe verum est, si minator solitus sit via iuris se ulcisci; verum si consuevit se vindicare via facti (ut solent sortiarii), in his iudex potius debet sequi sententiam Parid. de Puteo volentis, etiam tum fore indicium ad torturam. Quarto, minae debent fuisse specificae, seu de eodem quod subsecutum fuit delicto; sic nonnulli post Spec. et Dec. quorum doctrina (ut tecte Farinac.) tantum est admittenda, quando minae prolatae fuere in aliqua certa specie, et subsequitur delictum plane alterius speciei, quod non continetur sub specie comminata, neque est praeparatio seu gradus quibam ad illud (verbi | gratia, quando quis minatur occidere, et secutum est domus incendium). Sed si minae fuerunt in genere prolatae (verbi gratia, dolebit tibi caput, faciam ne hic intres, ne loquaris, etc.), et delictum illa generali significatione continetur, vel si delictum plus nocuit, vel minus quam minatum fuit, sed effectus tamen est quid ordinatum ad minas: tunc adhuc locum habebit regula (verbi gratia, si in quem

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are sufficient [to warrant torture], or whether by any chance another enemy, relying upon his as a cover, has done the harm, as Paride del Pozzo, and others relying upon him, tells us has happened.45 (ii) There is also a limitation whenever the offence did not follow immediately, but after an interval. The judge is allowed to exercise his discretion about this, since he ought to take into consideration the character of the people involved, and whether one of them had the opportunity to commit the offence because, if he did not have the opportunity and created one and made use of it, the interval makes no difference at all to the circumstantial evidence. (iii) When I said that threats of this kind constitute sufficient circumstantial evidence, this is misleading if the threats are ambiguous and are able to signify that the retribution was legitimate in law and was done legally, (for example, ‘I shall seek retribution’, ‘you will pay’, ‘you will be sorry’, ‘it won’t go away like that’, and such-like). This is certainly true if the person making the threat has been in the habit of getting his own back by way of the law. If, on the other hand, he has been accustomed to get his own back by resorting to action, (as witches [sortiarii] are accustomed to do), under these circumstances the judge ought rather to follow the opinion of Paride del Pozzo who is happy that in this case the circumstantial evidence would be sufficient to warrant torture. (iv) The threats ought to be specific or be related to the same offence which followed soon after they were made. This is what several people say, following Speciano and [Tiberio] Deciani. But one should listen to their teaching, (as Farinacci rightly says), only (a) when the threats which were issued were of a particular kind, (b) the offence which followed is of a different kind, (c) is not included in the type which was threatened, and (d) there is no preparation for it or step taken towards it, (for example, when someone threatens to commit murder and the threat is follows by a house catching fire.)46 But if the threats were offered in a general fashion, (for example, ‘your head will hurt’, ‘I’ll stop you from entering here’, ‘I’ll stop you from talking’, etc.) and the offence comes under that general heading, or if the offence has done more or less harm than was threatened, but the effect is something along the lines of what was threatened, then the rule will still be relevant, (for example, if the

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Paride del Pozzo, (1410–1493), was an Italian jurist. He published De Syndicatu Officialium on forensic evidence in 1472–1473. Del Río gives a reference to Farinacci, but Paris is also used as a source by Giacomo Menochio in Book 1, question 15 of his book on decisions taken by judges, De Arbitriis Judicum Quaestionibus et Causis, published in Venice in 1569. It is not clear to which Speciano Del Río is referring here. Tiberio Deciani, (1509–1582), was an Italian jurist. He taught law at the University of Padua, and his principal work, A Treatise on Criminal Law, was published in 1590.

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minae occidendi prolatae, inveniatur tantum vulneratus, vel e contra, quia vulnera nequeunt ad certam mensuram dari). Quinto limit. procedere regulam, quando minae non fuerunt revocatae, et quando erant prolatae animo sedato, et post intervallum a praetensa iniuria; sic ut queant dici processisse ex animo deliberato, non ex calore iracundiae. Sexto, limit. ut minae sint absolutae. Nam si fuerint conditionatae (verbi gratia, faciam si tu adhuc transieris hac etc.), tunc nihil operantur, nisi sufficienter probata conditione in minis apposita. Septimo, debent minae apparere, hoc est probari per duos testes efficaciter, quos oportet saltem esse concordes in qualitate minarum, licet discordent in loco et tempore; alias si essent omnino singulares, vel esset unicus tantum testis, minat non facerent indicium ad torturam, sed tantum ad faciendam inquisitionem generalem sufficerent. Octavo, ad torturam sufficerent minae hominis soliti exsequi, cum causa prae existente minarum, ut pote honor laesus, odium, utilitas, aut quid simile; quod si ad consuetudinem exsequendi, et causam, accederent alia adminicula praesumptionum (ut pote inimicitia); tunc etiam ad condemnandum sufficere tales minas censet Farinac. post multos quos allegat, non quidem ad poenam ordinariam, sed extraordinariam, et pecuniariam non corporalem, quod fateor quando concurrunt minae, inimicitiae, delictum, et consuetudo exsequendi; idque facilius in excepto et oculto difficilisque probationis crimine nostro sortilegii admiserim, quam in aliis; tamen semper propenderem in sententiam negantium unquam in ullo crimine licere ex huiusmodi indiciis tantum remotis ad condemnationem procedere.

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person against whom the threats of murder were issued is found simply to have been wounded, or vice versa, because to a certain extent wounds cannot be given [by threats].) (v) One limitation is that the rule comes into force when the threats have not been recalled, and when they were uttered while the mind was calm and there was an interval between them and the alleged injury, such that the threats can be said to have proceeded from a mind intending what was said, not one in the heat of anger. (vi) A limitation is that the threats be unrestricted, because if they are conditional, (for example, ‘I shall do this if you keep overstepping the mark’), then they have no effect at all, unless the person issuing the threats has put a tried and tested limiting condition on them. (vii) The threats should be obvious, that is, effectively proved by two witnesses who must at least agree on the nature of the threats, even if they disagree about the time and place [they were uttered]. Otherwise, if [their testimonies] were entirely individual, or there was just a single witness, the threats would not make circumstantial evidence sufficient to warrant torture but would merely be enough to warrant holding a general investigation. (viii) The threats of someone in the habit of following them up would be sufficient to warrant torture if they were accompanied by a pre-existing reason for such threats, such as injured honour, hatred, expediency, or something similar, because if other pieces of supporting evidence were added to the habit of following up [the threats] and the reason for them, (such as enmity), Farinacci, (relying on many people whom he adduces), thinks that under those circumstances such threats are sufficient even to warrant sentencing—and not to the usual punishment, but to one which is not normally imposed, a pecuniary punishment, too, not a physical one. This I acknowledge when threats, enmities, the offence, and the habit of following up threats coincide, and I admit that this is easier than in other cases, when it comes to the crime of witchcraft [sortilegii] which we are discussing, a crime which falls outwith the normal legal rules and is difficult to prove. Nevertheless, I should always incline to the opinion of those who say that it is never permissible in any crime to proceed to sentencing on the strength of this kind of circumstantial evidence which is so far removed [from the offence itself].

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sectio iv De aliis indiciis minus urgentibus et minus certis.

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Primum est quando quis potuit maleficium impedire et non fecit; si tenebatur non lege tantum caritatis (qua omnes homines tenentur), sed etiam lege iustitiae, ut puta ratione officii, tunc puto urgentem praesumptionem occultae societatis induci, et talem non prohibentem esse plectendum poena saltem extraordinaria, quando aliqua adhuc adminicula accedunt; intellige primo posse torqueri, et si post torturam necessaria reliqua adsint, ad condemnationem iuxta dicta paullo ante in fine praecedentis sectionis etiam posse procedi. Quod notandum est procuratoribus, et advocatis fisci, et similibus officiatis iustitiae. Sed si quis tantum tenebatur obviare ex praecepto caritatis, tunc non puto istud indicium sufficere ad torturam, si alia nulla coniectura concurrit, maxime si postea non associavit se sic delinquenti. Et haec limitant dd. quidam in crimine laesae Maiestatis, quos sequitur Iul. Clar. et non est dubitandum de foro externo; ibi enim non revelans hoc crimen puni|tur, sicut et servi qui non defenderunt Dominum occisum. In foro conscientiae neque hos servos, nequa alios illos, ne in crimine quidem laesae Maiestatis, putarim ad restitutionem damnorum teneri. Hinc patet indicium et praesumptionem induci contra iudices, qui omittunt vel negligunt maleficos punire ad quod tenemur ratione officii, ut dixi, ut et belli dux ratione militum; et praelatus, subditorum: quae est communis sententia arg. cap. qui potest, 23, q. 3, cap. negligere, 2, q. 7, Simanc. in praxi tit. 15, Capic. decis., 130, n. 67, Plaza Epit. delict., cap. 28, n. 30 et 31, Nicol. Moron, De fide treug. et pac., q. 138, n. 41, et hi omnes quia iure ad hoc tenebantur, ad restitutionem damnorum ex omissione hac ortorum, parti lae-

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Section 4 Other less compelling and less certain pieces of circumstantial evidence (1) When someone could have hindered a malefice and did not do so. If he was being held back, not by the law of charity alone, (by which all human beings are restrained), but also by the law of justice such as, for example, what is required by his office, I think that under those circumstances the compelling presumption that he belongs to a secret society is established, and that such a presumption does not stand in the way of his being punished—by means of a penalty other than that usually imposed, anyway, provided other pieces of corroborative evidence still support it. Notice, first of all, that he can be tortured and that if, after torture, everything else requisite is present, [the court] can also proceed to sentence him in accordance with what I said just now, at the end of the preceding section. Procurators fiscal, advocates, and similar officers of justice should take note of this. But if someone were being held back from hindering [the malefice] simply by the commandment of charity, I think this is not sufficient evidence to warrant torture if there is no other accompanying conjectural inference, especially if he did not later associate with the offender. A number of scholars limit this to the crime of treason. Giulio Claro follows what they say, and there can be no doubt about this in an external court [of law], because there, someone who does not reveal this crime is punished, just as in the case of servants who have not defended their murdered master. (In the court of conscience, I think that neither these servants nor those other people I mentioned are obliged to make good damages, not even in the case of the crime of treason.) Hence it is clear that the circumstantial evidence and the presumption are decisive, in spite of judges who fail or neglect to punish workers of harmful magic [maleficos] as they should according to what is required by their office, as I said, just as a war-leader has a duty to his soldiers and a prelate to his subjects. (This is generally held opinion. See argument, chapter ‘he who can’ 23, question 3; chapter ‘to neglect’ 2, question 7; [Diego de] Simancas, Practice of Heresy, title 15, capital decision 130, number 67; [Pedro] Plaza [y Moraza], Summary of Offences and Criminal Actions, chapter 28, numbers 30 and 31; Nicola Morone, Faith, Truce, and Peace, question 138, number 41.)47 Because all the people I have been talking about used to be considered liable in law as far as this is concerned, they are considered [now] to be liable to pay the injured party 47

Pedro Plaza y Moraza, (1524–1564), published his Epitome Delictorum Causarumque Criminalium ex Iure Pontificio, Regio, et Caesareo in Salamanca in 1558. Nicola Morone, (floruit sixteenth century), publishedTractatus Aureus de Fide, Treuga, et Pace in Venice in 1570.

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sae tenentur, neque obstat Cou. et Med. citati loquuntur enim de iis qui tantum tenebantur obviare ex caritate; quoad servos domini occisi, aliud est quia, licet puniantur in foro externo, id fit propter praesumptionem, et ideo in foro conscientiae non tenentur ad restitutionem. Secundo est quando quis patrocinatur sponte maleficis, et conatur criminis enormitatem elevare, et contendit: non esse credendum iis quae de illis certo narrantur, et ea omnia vana esse et delira, aliaque huiusmodi, sicut fecere Wierus haereticus, et nostris temporibus quidam Calidius Loseus Theologus, cuius animae Deus parcat, qui dum viveret fuit eo nomine suspectus insincerae fidei, et Bruxellae incarceratus, et Treviris expulsus, quia libellum paraverat, et conabatur clanculum Coloniae (quod hic inserendum duxi, ut si forte infoelix iste partus postumus, cum noxa publica, lucem aspexerit, vel scripta exemplaria, ut solent opera tenebrarum, clam distribuantur, sibi quisque caveat, ne specie pietatis impietatem hauriat) paraverat inquam, et conabatur libellum edere in hanc sententiam, coactusque fuit abiurare huiusmodi dicta, scriptaque, et merito; sic enim natura comparatum est, ut quae quisque lubenter et proterve defendit, ea non fugiat, neque se illis facile abstineat, a quibus vero se abstinet, ea non multum laboret, cum invidia et molestia, tueri. Deinde ut a plurimum tales postea deprehenduntur occultae societatis rei. Estque haec persuasio diligenter vitanda, cum omnibus, tum maxime procuratoribus, advocatis, iudicibus. Wierus, si credimus Crespeto Discur. 3, de odio Satanae hanc defensionem suscepit, quia ob Magiae crimen poenam mortis

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damages which have arisen as a result of this neglect; and [Juan de Horozco y] Covarrubias and [Miguel de] Medina, whom they cite, provide no reason to object to this, because they are speaking about people who were considered to be hindering [a malefice] simply out of charity. The case of the servants of the murdered master is different because, even though they are punished in an external court [of law], this is because of a presumption [of guilt], and therefore in the court of conscience they are not held liable for restitution. (2) A second piece of circumstantial evidence is (i) when someone, of his own free will and accord, speaks up in defence of workers of harmful magic [maleficis] and tries to lessen the enormity of their offence by maintaining that one should not believe what is confidently said about them, and (ii) says that it is all delusion and nonsense, which is what the heretic Weyer and one of my contemporaries, the theologian Cornelius Loos, (on whose soul may God have mercy), have done.48 While Loos was alive, he was suspected of wavering in his faith on that account, and was imprisoned in Brussels and expelled from Trier because he had prepared a short book and was trying to publish it secretly in Köln—and here I have directed that an insertion be made to the effect that if, by chance, that unfortunate final child of his, (a menace to the public), has seen the light, or if written copies are being distributed in secret, as is the custom with works of darkness, then let each person beware, lest he inhale irreligiousness disguised as piety. Loos, I repeat, had prepared and was trying to publish a small volume expressing this opinion, but was compelled to abjure speaking and writing things of this kind. Quite rightly so, too, because Nature has arranged it so that each person does not run away and keep himself at a distance from the things he willingly and boldly defends, and does not take pains to protect, with jealousy and ill-will, those things from which he does keep himself at a distance. Next, the claim that, for the most part, people who are guilty of belonging to a secret society are arrested later on. This is a common notion which should be carefully avoided by everyone, especially by procurators, advocates, and judges. If we believe [Pierre] Crespet in discourse 3 of his Satan’s Hatred, [Johann] Weyer upheld this defence because he was afraid he would be executed on

48

Johann Weyer (1515–1588) was a physician. In 1563, he published The Conjuring-Tricks of Evil Spirits and their Incantations (‘De Praestigiis Daemonum et Incantationibus’) which he enlarged in 1568 and abridged in 1577. Cornelius Loos, (1546–1595), a Dutch Catholic theologian with controversial sceptical views about the reality of spirits. The work to which Del RÍo takes exception is his Genuine and False Magic (‘De Vera et Falsa Magia’), publication of which was stopped in 1590/1591.

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verebatur. Ex Iaquerii flagello Fascinariorum constat per Edelinum Doctorem Sorbonicum hoc Diabolum conatum persuadere mortalibus. Iaquerii verba sunt: “non immerito creditur quod daemones, qui haeresim et sectam abominalem fascinariorum erexerunt, induxerunt assertores ad credendum et pertinaciter asseverandum, quod ea quae per maleficos fascinarios fiunt in cultu daemonum, non sunt nisi illusiones dormientium; hoc autem luce clarius patet ex processu facto cuidam magistro in Theologia (addit Monstreletus p. 3 Chronic. eum fuisse Priorem S. Germani in loco quem vocant Galli en l’Haye, et ante fuisse monachum ordinis D. Augustini, et prius etiam aliorum ordinum; unde hominis inconstantiam facile notes). Super huiusmodi haeresi et secta deprehenso, qui sponte confessus fuit et detexit, quo modo in cultu daemonis ipse cum pluribus aliis complicibus realiter et pluries convenit, quem daemonem inter eos vidit, et coluit apparentem, quandoque in forma hominis, quandoque in forma hirci, ubi abnegavit Deum, et | fidem catholicam, Beatamque virginem et crucem. Praedictus autem Magister vocatus Mag. Guilhelmus Adeline anno Domini mccccliii die duodecima mensis Septemb. (Monstreletus vocat Guil. Edelin, et dicit hanc sententiam latam mense Decembri, in Vigilia Nativitatis Dominicae: in caeteris conveniunt, de loco, de anno, de confessione, de poena), in capella Episcopali Ebroicensi iudicali ter coram indicibus fidei, cum lacrymis in terram prostratus, exhibuit quandam scedulam continentem sua commissa contra fidem in dicta haeresi et secta, offerendo praedictis iudicibus

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account of the crime of magic.49 According to [Nicolas] Jacquier’s Scourge of Heretics, it is well-known, because of [Guillaume] Adeline, a Doctor of Theology from the Sorbonne, that the Devil has tried to persuade mortals of this.50 What Jacquier says is this. ‘It is believed, and not without good reason, that evil spirits which have raised up the heresy and dreadful sect of those who cast the evil eye [ fascinariorum] have induced their defenders to believe this and stubbornly reassure them that the things done by criminal casters of the evil eye during their worship of evil spirits are simply the illusions of people who are asleep. This is clearer than daylight from the trial of a particular Master of Theology.’ [Enguerrand de] Monstrelet adds in part 3 of his Chronicle that this man was the Prior of St Germain in a place the French call ‘en Laye’, and that before that he had been an Augustinian monk, and also a member of other orders before that.51 So, you may easily note the man’s fickleness. ‘He was arrested on a charge of belonging to this heresy and sect and confessed it of his own free will and accord. He revealed how he, along with several other accomplices, met on a number of occasions in reality, [i.e. not in dreams], to worship an evil spirit. He saw this evil spirit in their midst and worshipped him. Sometimes it would appear in the shape of a human being and sometimes in that of a billy-goat. On these occasions he abjured God and the Catholic Faith, the Blessed Virgin, and the cross. This Master’s name was Master Guillaume Adeline, and [his trial took place] on 12th September 1453.’ Monstrelet calls Guillaume ‘Edelin’ and says that sentence was judicially pronounced in December on the Vigil of the Lord’s Nativity. In every other particular, however, he and Jacquier agree about the place, the year, the confession, and the penalty. ‘In the chapel of the Bishop of Evreux, in the presence of judges of the Faith, he tearfully prostrated himself on the ground and presented a document containing the crimes against the Faith, which he had committed while he belonged to the said heresy and sect and

49

50

51

Pierre Crespet (1543–1594) was a member (and prior) of the Celestine Order. He is known for his treatise Two Books on the Hatred of Satan and Evil Spirits for Human Beings (‘Deux Livres de la Hayne de Sathan et Malins Esprits contre l’Homme’) which was published in Paris in 1590. Nicolas Jacquier (c.1430–1472) was a Dominican. His Flagellum Haereticorum Fascinariorum (‘Scourge of Heretics who cast the Evil Eye’) was first printed in Frankfurt in 1581 as a supplement to Malleus Maleficarum by Heinrich Institoris. Guillaume Adeline was put on trial in 1453 for arguing against the reality of the witches’ Sabbat. See further Martine Ostorero, ‘Un prédicateur au cachot: Gauillaume Adeline et le sabbat’, Médiévales 44 (Spring 2003), pp. 73–96. Peter G. Maxwell-Stuart, Witch Beliefs and Witch Trials in the Middle Ages: Documents and Readings, London: Continuum Publishing 2011, pp. 149–153. Enguerrand de Monstrelet (c.1390/1400–1453). His chronicle deals with events during part of the Hundred Years’ War.

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abiurationem. Ipsa autem scedula continebat inter caetera, quod quando ipse fuit introductus ad dictam sectam Diabolus asserebat, quod ipse Mag. Guilhelmus bene posset, si vellet, augmentare eiusdem daemonis dominatum, praecipiendo eidem Mag. Guilhelmo praedicare, quod eiusmodi secta non erat nisi illusio, et quod hoc praedicaret ad contentandum populum patriae, ubi tunc morabatur ipse Magister Guilhelmus. Hunc Mag. Guilhelmum ego qui haec scribo novi, et frequentissime vidi antequam esset de hoc crimine suspectus.” Haec Iaquer. Flagelli haereticor. fascinar., cap. 4. Nostris temporibus summa ope et vi Doctor Ulaet. unus ex Principis Electoris Trevirici Consiliariis, hoc idem contendebat, sed ei se fortiter, erudite conscripta confutatione erroris, Pet. Binsfeldius opposuit, edita Disputatione de Confession. Maleficar. Captus ille Ulaetius, crimen tandem, fraudemque confessus, ut et Edelinus; flammis feralibus consumptus fuit. Indicium hoc nititur aperta iuris praesumptione: lib. uni. C. De priva. carcerib. et cap. error. 84, d. et docent Pet. Loyherius lib. 2 De spectris fol. 526, Ludovicus Richeaumus noster, in lib. Trium Discursum., Iaquerius Michael. Remig. Bodinus, Crespet. et alii. Oratos velim iudices (quos ego talia perperam effutire intelligo), ut dignentur has Disquisitiones nostras legere, et in singula inquirere, quae displicebunt, refellant; quae refellere nequibunt, iis, fastu et obstinatione seclusis, assentiantur. Irridere, contemnere, nec legere, intelligereve velle; vanitatis, non gravitatis est, inscitiae non sapientiae, scurratum non iustitiae Sacerdotum. Solo autem Canone illo, Episcopi 26, q. 5 niti; et verba urgere, non sententiam, nec ad ipsa quidem verba satis attendere, totamque canonis seriem, sed frustulatim

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offered the foresaid judges his abjuration. This document contained, among everything else, the information that when this Master Guillaume was introduced into the said sect, the Devil kept saying that Master Guillaume could, if he wanted, perfectly well increase this evil spirit’s tyranny, and commanded Master Guillaume to preach that this particular sect was nothing but an illusion, saying that he should preach this in order to keep the people quiet in the country in which Master Guillaume was living at the time. I who am writing this knew Master Guillaume and saw him on very many occasions before he was suspected of this crime.’ (Thus Jacquier, The Scourge of Heretics and those Who Cast the Evil Eye, chapter 4.) In our own time, Dr Flade, one of the Prince Elector of Trier’s councillors, was maintaining the same thing very forcibly indeed, but Peter Binsfeld strongly opposed him in a learned written confutation of his error, his published disputation on the confessions of women who practise harmful magic [maleficarum].52 Flade was arrested and finally confessed his crime and deception and, like Adeline, was burned in a savage fire. This piece of circumstantial evidence rests upon a clear presumption of the law, Lex Carolina on private prisons etc. error 84. (Pierre Le Loyer tells us this in Spectres Book 2, folio 526, as do the Jesuit Louis Richeaume in his book Three Discourses, [Nicolas] Jacquier, [Sébastien] Michaëlis, [Nicolas] Rémy, [Jean] Bodin, [Pierre] Crespet, and others.)53 I should like to entreat judges who, I notice, erroneously babble things such as these, to deign to read these Investigations of mine, carefully examine each one, and refute those with which they are dissatisfied; and then let them lay aside their disdain and obstinacy and agree with those they cannot refute. Scoffing and despising, not reading and not being willing to understand—these [are marks] of vanity, not gravity, of stupidity, not intelligence, of buffoons, not priests of justice. Relying upon the canon Episcopi 26, question 5 alone and sticking to the words, not their meaning: not even paying enough attention to those very words and the whole sequence of the canon, but pulling it apart, bit 52

53

Dietrich Flade, (1534–1589), was caught up in a series of extensive witch-hunts in the borders of Trier in the 1580s. These increased in frequency and severity during the latter years of the decade and Flade was arrested on 22nd April 1589. Found guilty of large numbers of acts of harmful magic, he was garrotted and his body burned on 18th September 1589. Pierre Le Loyer (1550–1634) was a magistrate, known for his treatise Discours et Histoires des Spectres, Visions, et Apparitions des Esprits, Anges, Demons, et Ames se monstrant aux Hommes, which was published in Paris in 1605. Louis Richeaume (1544–1625) served as Provincial of the Society of Jesus in Lyon from 1586–1592. His Three Discourses on Behalf of the Catholic Religion was published in 1599. Sébastien Michaëlis (floruit late sixteenthearly seventeenth century) was a Dominican. He is best-known for his Pneumologie: Discours des Esprits which was published in 1587. Jean Bodin (1529/1530–1596) was procureur du roi and published his De La Demonomanie des Sorciers in Paris in 1580.

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enim discerpere, nec explicationem Theologorum, et Canonistarum doctissimorum admittere, nec iudicium suum communi omnium Europae Catholicorum saecularis et Ecclesiastici fori Tribunalium praxi, rerumque iudicatarum auctoritati submittere, sed unum malle Wierum, aut alterum, reprobae religionis hominem, sequi et cum scandalo audientium publice ista iactare: quid aliud est, quam Tribunalia omnia Catholica inscitiae, iniustitiae, crudelitatis damnare? Quam maleficis et eorum sceleri habenas permittere ad nocendum? Quam reip. et humano generi toti, et Deo optimo maximo tali conniventia patrocinioque teterrimae apostasiae, atrocissimam iniuriam inferre? Vide dicta sup. lib. 2, q. 16, et dicenda infra hoc eodem lib. 5, sect. 16, litt. W. ubi cap. Episcopi fusissime explicabo. Tertio, est cum sortiarii, ut plurimum etiam sint haeretici, eos qui scienter defendunt ipsos et errores eorum esse ipsis deteriores, proque sociis habendos qui nesciunt esse sortiarios, hi punendi non sunt, ut tales, nisi sua defensione iudicis officium impediant. Qui scientes esse sortiarios, non defendunt errorem, sed personam tantum, illi se valde | suspectos reddunt, et contra illos specialiter inquiri potest, et ob defensionem hanc sunt puniendi, ut et advocati et notarii, illi si scienter et sponte in iudicio patrocinantur, venia non petita, vel ad hoc a iudice non deputati; hi, si instrumenta scienter illis confecerint. Quod si iudices, vel Domini eos in suis iurisdictionibus, aut terris defenderint; primo sunt excommunicandi, et post pertinaciam officiis, dignitatibus, et bonis privandi, et in exilium mittendi, ut regiis Hispaniae et Siciliae constitutionibus iustissime cavetur; fallit haec tertio regula, quando sortiarii non sunt haeretici. Quarto, quod de defensoribus dictum, idem de fautoribus obtinet, qui verbis, factis, consilio, vel pecunia eos iuvant. Quinto, maiorem etiam praesumptionem de se praebent occultatores sive receptatores, eorum, si scienter hoc fecerint, vel non vi coacti. Quod, si contra occultatorem occurrat alia praeterea praesumptio, cogitur ipse vim vel ignorantiam probare, ut si sit amicus, vel consanguineus, neque hic cognatio excusat a poena in totum, sed tamen causa est lenioris multo punitionis; maxime si sit valde arcta necessitudo, ut coniugum, filiorum, fratrum. Haec quoque locum tantum habent, quando maleficium est iunctum cum haeresi.

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by bit: not accepting the explanation of very learned theologians and canon lawyers: not submitting one’s judgement to the common practice of all the Catholic tribunals of Europe, secular and ecclesiastical, and the authority of their judicial decisions, but preferring to follow one Weyer or another, (a man of spurious religion), and vaunting these notions in public to the scandal of those who hear them—what else is this but to find all Catholic tribunals guilty of stupidity, injustice, and cruelty? To allow workers of harmful magic and their criminal behaviour full rein to do harm? To do the most appalling damage to the whole human race and to Almighty God by conniving at such extraordinarily foul apostasy, and protecting it? (See what I said earlier in Book 2, question 16 and what I am going to be saying later in this Book 5, section 16, letter W, where I shall explain the canon Episcopi in great detail.) (3) Since casters of lots [sortiarii] are, for the most part, heretics, those who knowingly defend them are worse than they are and should be considered as their associates. Those who do not know they are lot-casters, however, should not be punished as such unless, by defending them, they stop a judge from carrying out his duty. Those who know they are lot-casters, and do not defend the error, but the person, render themselves highly suspect, and a specific investigation can be made into them. As for advocates and notaries, if they knowingly and of their own accord defend them without first having sought the court’s permission, or without having been assigned by a judge to perform this function, and if they knowingly make themselves tools of the accused, and if judges or landowners defend these people within their own jurisdictions or territories, they should first be excommunicated and then, if they persist in their conduct, be deprived of their offices, titles, and property and sent into exile, as most justifiably happens in Spain and Sicily in accordance with their royal constitutions. (None of this applies if the lot-casters are not heretics.) (4) What I have said about their defenders also obtains in the case of those who promote their interests and assist them with words, actions, advice, or money. (5) Those who conceal or shelter these people put themselves under a greater presumption [of collusive guilt] if they have done so knowingly and without being compelled to do so. If there happens to be some other presumption against the concealer, it is incumbent upon him to prove he acted under compulsion or out of ignorance: the person may, for example, be a friend or a relative. This relationship does not completely excuse him from being punished, but it is a reason for imposing a much lighter punishment, especially if the demands made by the relationship are particularly compelling, such as those between a husband and wife, or children or brothers. (This is also true only when malefice is conjoined with heresy.)

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Sexto, tenentur omnes, si maleficium sit coniunctum cum haeresi, maleficium denunciare (quod extra confessionem cognoverint), et iudicibus indicare, et qui hoc non faceret merito praesumitur socius, argumento fautorum ac receptorum. Sed quaeritur V. debeat hoc casu praemitti correctio fraterna? Si constaret maleficium non esse coniunctum cum haeresi, nemo dubitat esse correctionis fraternae servandum ordinem, sed quia hoc est de plane raro contingentibus, quoad striges et sortiarias et veros magos daemoniacos: ideo quoad hos, omnino censeo hac in re idem dicendum, quod de haereticis, de quibus dd. sollicite disputarunt. Imprimis, si haereticus est dogmatista; protinus debet iudicibus deferri, ut cautum lege divina Deuteron, cap. 13 et 17; ratio quia nulla moraliter spes suppetit tales admonitione corrigendos, et iuxta D. Paullum: “mali homines et seductores proficient in peius errantes et in errorem mittentes” (2 Tim. 3): unde consequitur quotiescumque probabiliter constat non redituros admonitione ad sanam mentem, statim denunciandos, quia periculum est ne sermo eorum, ut cancer serpat; quare commune bonum praeferendum est unius privatae famae; et cum talis iudicio suo plusquam iudicio Ecclesiae tribuat, stultum sit sperare quod privati hominis admonitionem auscultaturus et crediturus. Et hoc verum de omnibus, quos constat malatia errare; nam hi solent esse pertinaces; huiusmodi ergo tenetur quisque sub mortali deferre. 2. Si constat aliquem ex ignorantia errare, et certum sit moraliter, sive firmiter creditur post admonitionem emendandus, et correctio profutura: tunc praemittenda est admonitio fraterna. 3. Si dubium sit utrum correctio profutura necne, et utrum ex malitia an ex ignorantia peccet, hoc est si dubitetur probabiliter de eius pertinacia: tunc res est dubia; quidam censent tunc prius legitime admonendum, quam denuntiandum, et legitime admonere vocant, quando quid admonetur ab habente auctoritatem praelationis, iudicii et eruditionis; ita ut teneatur illi credere, nam non est dicendus admonitionem contempsisse, qui non credidit ei, cui credere non

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(6) If malefice is conjoined with heresy, everyone is obliged to denounce the malefice, (provided they have learned about it outwith the confessional) and alert a judge to it. Anyone who does not do this is quite properly presumed to be an associate because of the blame attached to those who support and shelter [malefactors]. But the question is whether, in this case, brotherly admonition should be made beforehand. If it were agreed that the malefice had not been conjoined with heresy, no one has any doubt that it is the task of brotherly admonition to preserve the [social] order. But because this refers to contingent circumstances which are obviously rare as far as witches [striges], female lot-casters [sortiarias], and genuine demon-possessed magicians [magos daemoniacos] are concerned, then I think exactly the same should be said with respect to these people as is said in the case of heretics, about whom scholars are punctilious in their arguments. (i) If the heretic is someone who spreads his doctrines, he should be denounced to judges forthwith, as we have been cautioned by divine law in Deuteronomy chapters 13. [1–5] and 17. [2–5], because there is no hope of correcting such people’s morals by means of admonition, and according to St Paul, ‘Wicked men and seducers will make things worse, falling into error and sending [others] into error,’ 2 Timothy 3. [13]. Consequently, it follows time and time again that the likelihood is they will not return to their right mind by being admonished, and so they should be denounced at once, because the danger is that what they say may gradually creep along like a cancer. So, the common good should be preferred to the personal reputation of a single individual, and since such a person pays more attention to his own judgement than to that of the Church, it is silly to hope that he will listen to and believe the admonition of a private individual. This is true of them all, too, since it is generally agreed that they err because they are wicked. These people are not usually steadfast, and so each person of this kind must be denounced under pain of mortal sin. (ii) If it is agreed that someone is erring because of ignorance, and it is morally certain or firmly believed that he will be amended by being admonished and will benefit from being corrected, then he should be offered fraternal admonition. (iii) If there is any doubt about whether correction will do any good or not, and whether he is sinning out of wickedness or ignorance—that is, if there is any probable doubt about his steadfastness—then the situation is dubious. A number of people think that, under those circumstances, he should be legally admonished before being denounced. By ‘legally’ admonished, they mean when the admonition is given by someone who has the authority of a feudal lord, a judge, or a scholar, with the result that he is bound to believe him, because if he did not believe a person he was not obliged to believe, he

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tene|batur. Haec sententia est valde aequa. Reip. tamen videtur utilior sententia contraria, nempe hoc casu deferendum Ecclesiae, argumenta pro sententia haec sunt: tum quia in re dubia non est resp. Christiana in discrimen adducenda; semper enim subest periculum morae et subvesionis aliorum, et lege naturae bonum commune particulari praeponendum; tum quia si reus ille non erat bonae famae, parum refert eam iuste laedi? Si vero erat, hoc ipso magis nocere reip. potuisset, cuius bonum praferendum eius existimationi; tum quia vel errabat ex mera malitia, et tunc iustissime delatus fuit, aut errabat ignorantia, et tunc iudices vel eum non comprehendent, vel comprehensum absolvent, et utroque casu salva erit eius fama. Ex his infero in Magiae crimine (quia lamiae semper sunt valde pertinaces, et vix fieri potest ut ex ignorantia peccent; et semper mora est damnosa aliis): ideo semper sub Mortali unumquemque teneri confestim eas denunciare, etiamsi cum haeresi non sit coniunctum earum crimen; et ideo qui non revelant hoc crimen, extra confess. sacramentalem, acceptum indicium contra se, saltem ad inquisitionem etiam specialem praebere, quod miror dd. non observasse. Opinor omisisse, quia comprehendebant sub crimine haeresis, ut Sancta Inquisitio facit in Hispania. Deinde sagae revelandae sunt, quia delictum earum non censetur commissum, sed committendum; et damna impendent proximo, et reip.: ideo in conscientia quis non potest tacere; hoc enim in genere Doctores communiter de conscientiae foro recipiunt in quovis crimine committendo. Peccabit ergo hoc non faciens, sed contra charitatem, non contra iustitiam, idque omittendo non committendo; ideo non tenebitur ad restitutionem, ad damna et interesse partis, nisi sit talis qui ex iuris praescripto revelare tenebatur.

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could not be said to have disdained the admonition. This opinion is entirely fair, but the opposite opinion seems to be fairer to the state. Certainly, in this case the matter should be referred to the Church. The reasons for this opinion are as follows. In a case of doubt, a Christian state should not be brought into the decision-making process, because there is always the danger of its being delayed and overthrown by other considerations: and by the law of Nature the common good should be given precedence over the individual: and if the accused was not someone of good reputation, does it matter very much if his reputation is justly damaged? (If this was so, a person whose good was preferred to what people thought of him could, by that very fact, have done more harm to the state.) So, he was either going astray because of sheer wickedness, (in which case he was most justly delated), or he was erring through ignorance, in which case the judges will either not understand him or will find him not guilty when they do. So, in both cases his reputation will be safe. From these points, therefore, I deduce that in the crime of magic,54 because witches [lamiae] are very stubborn and it is scarcely possible they sin out of ignorance, every single person, under pain of mortal sin, is always bound to denounce these women at once, even if their crime is not conjoined with heresy, and therefore those who do not reveal this crime, (provided they have got to know about it outwith the sacrament of confession), provide circumstantial evidence against themselves which at least warrants a specific investigation, and I am astonished that scholars have taken no notice of this. I think they have failed to do so because they did not include [magic] under the heading ‘crime of heresy’, as the Holy Office does in Spain. Secondly, wise-women [sagae] should be revealed because their offence is considered to be one, not of past but of future commission, and they will pay damages to the person most concerned and to the state. Therefore no one can, in all conscience, keep silent because, in general, scholars are united in including this [as something to be dealt with] in the court of conscience, regardless of what crime is being committed. So, the person who does not [disclose the identity of magical practitioners] will be committing a sin—against charity, not against justice—by failing to do what he should not fail to do. Consequently, he will not be obliged to make restitution and pay compensation for the losses of the [injured] party, unless he is someone who was bound to make the revelation by order of the law.

54

Here Del Río draws the reader’s attention to his point by adding ‘take note’ in capital letters in the margin.

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7. Indicium sumitur ex mendacio rei, quod semper sufficit ad inquirendum; non vero sufficit ad torturam, nisi sit adiutum aliis praesumptionibus. Intellige mendacium facere indicium, si concurrant sequentia, nempe si sit circa qualitates et circumstantias substantiales, sive proximas delicti (ut circa tempus vel locum delicti) non circa remotas (ut locum originis rei), et circa ea quae, si vere dixisset, reo praeiudicassent in hac causa; et reus non habet pro se ullum indicium innocentiae, ut puta unum testem, bonam famam, vel quid simile, et mendacium evidenter est probatum. 8. Est rei variatio adiuta aliquo alio praeiudicio, idque circa qualitates et circumstantias proximas delicto (ut dictum de mendacio) et ea quae immediate rei defensionem respiciunt. Reus variat, qui modo dicit unum, modo aliud; haec variatio facit indicium ad torturam, cum emanat ante torturam in examine; et ad ulteriorem torturam, cum contingit in tortura, et ad novam, quandoque post praecedentem contingit; dummodo praecedens tortura facta sit ex indiciis legitimis, et dummodo praecedentia indicia non sint satis per torturam expurgata, nam si forent expurgata sufficienter, non posset amplius interrogari super delicto; non noceret etiam variatio si nata esset ex oblivione, vel alia causa probabili, verbi gratia, si se corrigendo reus variasset; his enim causis deest doli omnis suspicio. 9. Est vacillatio et titubatio, quando quis loquitur tremens, trepidans, timens, vel pollens, vel sudans prae angustia timoris; et notarius illud indicium scri|psit: tunc volunt hoc esse idoneum indicium ad torturam cum variatione praecedentis numeri, Bart. et alii; fundamentum huius sententiae est, quia oculus et vultus solent esse animi indices, ut ex sacris litteris et prophanis scriptoribus probat Simancas, sed adhuc existimo istud indicium non esse sufficiens cum

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(7) If the accused lies, this is a piece of circumstantial evidence which is always sufficient to warrant an investigation, although it is not enough to warrant torture, unless it is supported by other presumptions. Now notice, a lie constitutes circumstantial evidence if it is accompanied by the following, especially if it concerns substantive conditions and circumstances, or if it concerns those which are most closely connected with the offence, (such as the time or place of the offence), and not those which are not so connected, (such as where the accused came from), and [if it is accompanied by] those things which, had he spoken the truth, would have prejudged him guilty in this case and the accused does not have any evidence to speak for his innocence, (such as, for example, one witness, a good reputation, or something similar), and the lie is clearly proven. (8) This concerns inconsistency in the accused, aided by some other prejudicial point, what is said about the substantive conditions and circumstances most closely connected with the offence, (as I said in connection with the lie), and those things which are of immediate relevance to the person’s defence. The accused is inconsistent if he says one thing on one occasion and something different on another. This inconsistency creates circumstantial evidence warranting torture when it arises during examination before torture, further torture if it happens during torture, and fresh torture when it happens after preceding torture, provided the preceding torture has been carried out because of pieces of circumstantial evidence recognised by law, and as long as the preceding pieces of circumstantial evidence have not been satisfactorily cleared by the torture, because if they have been so cleared, the accused cannot be questioned further about the offence. The inconsistency would not be damaging [to his case], however, if it arose from forgetfulness or some other probable cause—for example, if the accused were inconsistent in the course of correcting himself. In such cases, there is no reason to suspect trickery. (9) This concerns vacillation and hesitancy, when someone trembles and quivers while he is speaking, exhibits fear, turns pale, or sweats in an agony of fright, and the clerk has made note of this piece of circumstantial evidence. Under those circumstances, Bartolo [da Sassoferrato] and others think this is a piece of circumstantial evidence, (along with the inconsistency I mentioned in no. 8), to warrant torture.55 The basis of this opinion is that the eye and the face are usually indications of [what is going on] in the mind, as [Diego de] Siman-

55

Bartolo da Sassoferrato (1313–1357) was a distinguished jurist. A collection of his legal writings, Consilia, Quaestiones, et Tractatus, was published in Lyon in 1547.

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variatione, quia nimis est fallax et dubium, et debile, quia multis hoc contingit, dumtaxat sollicitis de proprio honore, et metuentibus potentiam adversariorum, aut iudicum asperitatem, quamvis innocentissimi sint; adeo ut plerumque nesciant prae perturbatione, quid dicant, ut bene Novel. Paris, et alii apud Farinac. 10. Si cum instrumento magicae noxae visus esset de loco exire fugiens, pallensque, in quo loco inventus est aliquis laesus vel res maleficiata; hoc indicium omnino puto esse propinquum et sufficiens ad torturam per se solum, ut in simili fatentur omnes de exeunte timido et pallido cum gladio cruento et ex domo ubi occisus inventus; immo communiorem et veriorem sententiam esse volunt hoc sufficere ad condemnationem, maxime si alia accedant indicia. Sed quicquid hi dicant, ego sequor Gandin. Boër. et Ioan. And. contrarium volentes; nempe nec sic quidem esse sufficiens incidium ad condemnationem. Miror autem Farinac. fateri hoc non esse verum de domo habente duo ostia, et tamen putare verum de via publica vel agro, cuius haud dubie plures sunt loci egrediendi et ingrediendi. Facilius admiserim sententiam illam communem in poena dumtaxat pecuniaria, non vero in ordinaria, vel extraordinaria corporali; nihilominus etiam quoad pecuniariam, quia Farinacius, cum Claro, fatetur iudicem non teneri eam infligere, sed tantum posse si velit; semper sim auctor, ex hoc indicio ne procedat ad ullam condemnationem.

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cas proves from Holy Scripture and non-religious writers.56 But I still think that this piece of circumstantial evidence, accompanied by inconsistency, is not sufficient because (a) it is extremely misleading, dubious, and feeble, and (b) because this happens to many people who are merely anxious for their personal honour, fear the power of their opponents, or the harshness of the judge, (even though they are completely innocent), to such an extent that for sheer nervousness they very often do not know what they are saying, as [Agostino] Novello, Paride [del Pozzo], and others quoted by Farinacci say.57 (10) If the accused was seen running away from a place, pale-faced, with a piece of equipment used in harmful magic, and someone was found there who had been hurt, or an object used in the practice of harmful magic [res maleficiata], I think this is definitely a relevant piece of circumstantial evidence and sufficient on its own to warrant torture, as in a similar case in which everyone says they saw the accused, fearful, pale-faced, and carrying a blood-stained sword, leaving a house in which a murdered man has been found. Indeed, people say that the more commonly held and more accurate opinion is that this is sufficient to warrant his being found guilty, especially if there are other attendant pieces of circumstantial evidence. But, regardless of what they say, I follow [Alberto] Gandino, Nicolas Bohier, and Giovanni d’Andrea who think the opposite58—that the circumstantial evidence is certainly not sufficient to find the person guilty. But I am amazed that Farinacci says this is not even true of a house with two doors, and yet thinks it is true of the public highway or [public] land where there are undeniably several places people can leave and enter. I should find it easier to grant general opinion in [a case carrying] a penalty which is simply pecuniary, but not in one which carries either the standard physical punishment or one which is not standard. Nevertheless, as far as one with a pecuniary penalty is concerned, Farinacci, along with [Giulio] Claro, says that a judge is not obliged to inflict it, but can certainly do so if he wishes, and I hope I shall always be an author [who says] that this piece of circumstantial evidence should not lead to anyone’s being found guilty.

56

57

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Diego de Simancas (died 1583) held bishoprics in the 1560s, 1570s, and 1580s. His Institutiones Cathollcae was published in 1552, and De Republica Recte Instituenda post mortem in 1909. The Blessed Agostino Novello, (1240–1309), studied canon and civil law before entering the Augustinian Order. Paride del Pozzo’s treatise on forensic evidence, De Syndicatu Officialium seems to be the work to which Del Río is referring here. Alberto Gandino, (1245/1250–1310), wrote a treatise on acts of harmful magic (‘Tractatus de Maleficiis’) in 1299. Nicolas Bohier, (1469–1539), known especially for his Decisiones Burdegalenses, and Giovanni d’Andrea, (1270/1275–1348), were both renowned canon lawyers.

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11. Est conversatio cum malis hominibus infamatis de eodem delicti genere, eaque stricta et continua; sed hoc indicium est valde generale et remotum, tendens potius ad diffamationem, quam ut per se sit indicium; egimus de illo praeced. sectione. 12. Si commisso maleficio quis confestim veniat ad curiam, ut sollicitet inquiri et procedi de auctore criminis, cum hoc ad eum non pertineat sollicitare; haec enim ingestio et sedulitas suspectum facit, et saepe exemplis hoc deprehensium, sed hoc etiam est leve, et debet bonis praesumptionibus aliis roborari ut sufficiat ad torturam. Quod multo magis tenendum de illo, qui sponte cum non tenetur malefactorem denunciat, nam qui tenetur denunciare, et non denunciat, vel tarde denunciat, hic praebet suspicionem contra se taciturnitate sua. 13. Si inventus fuerit veneficio occisus vel laesus aliquis in hospitio seu domo, posset esse indicium contra hospitem seu dominum domus; argumento eorum quae censent doctores de invento mortuo in domo alicuius; nam delictum in domo factum, praesumitur factum per existentes in domo, qui poterunt torqueri tanquam testes, si non probatur eos in domo tum non fuisse, idque nullo alio indicio concurrente, tanquam rei principales autem, aliis praesumptionibus concurrentibus: intellige nisi sint bonae vitae ac famae, tunc enim non poterunt torturae subiici ut rei principales, nisi si tacuerint et caelaverint mortuum, vel nisi constet homicidium non potuisse committi ab aliis, quam in domo existentibus; hoc autem difficulter potest constare, et in eo iudex potest labi | (ut patet exemplo pulcro quod narrat Farinac. n. 111), quare non facile hoc credendum iudici, nisi sint personae viles et de crimine simili suspectae: vide Farinac. a n. 98 usque ad n. 119, qui n. 120 bene addit hoc indicium nunquam sufficere ad condemnationem.

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(11) This is keeping close, continual company with wicked people who have a bad reputation for this kind of offence. But this piece of circumstantial evidence is very imprecise and has only a remote connection [with the offence]. It is inclined to be defamation of character rather than circumstantial evidence in itself. (I dealt with this in the preceding section.) (12) If someone comes straight away to a law-court after an offence has been committed to urge that the author of the crime be investigated and proceedings be taken against him when such urging is none of his business, his selfimportant assiduity makes him suspect, and this has often been discovered as a result of examples of it. It is, however, a slight piece of evidence and ought to be corroborated by other worthwhile presumptions if it is to be enough to warrant torture. It tends to be a much better piece of evidence, however, in the case of someone who lays information against a malefactor when he is not obliged to do so, because someone who is obliged to do so and does not or takes his time before he lays information against him, furnishes suspicion against himself by his silence. (13) If someone is found to have been murdered by a poisonous substance,59 or has been injured in a guest-house or a private house, this could be circumstantial evidence against a guest or the master of the house, in accordance with the argument which scholars put forward with regard to a dead person’s being found in someone’s house, that is, that an offence committed in a house is presumed to have been committed by those who live in the house, and that they will be able to be tortured as witnesses at any time unless it is proved they were not in the house at the time, and that this [can be done] without any other concurrent circumstantial evidence. But if there are other concurrent presumptions, [they can be tortured] as the principal suspects unless, of course, they are of good life and reputation because, under those circumstances, they will not be able to be tortured as principal suspects unless they have remained silent and have concealed the dead person, or unless it is agreed that the murder could not have been committed by anyone other than those who were present in the house. This, however, can be difficult for people to agree about and under those circumstances a judge can make a mistake, as is clear from the fine example Farinacci gives in number 111. So, it is not something which is easy for a judge to believe, unless those involved are people of a low sort and suspected of a similar kind of crime. (See Farinacci, from number 98 to number 119. In number 120 he adds quite rightly that this piece of circumstantial evidence is never sufficient to warrant finding them guilty.)

59

Veneficio, which could also mean ‘by an act of poisonous magic’.

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14. Adhuc levius indicium est, si mortuus reperitur in via prope domum alicuius; eadem enim tunc suspicio est de domino sic inquilinis domus illius: hoc sufficit ad torturam, si sit repertus valde contiguus domui, et dominus vel domestici habuerunt inimicitiam cum defuncto, vel alias sint malae famae in similibus, vel si concurrant aliae praesumptiones fortes: Farina., a n. 120. Sic memini processum Madriti anno 1573 contra quandam famosam meretricem prope cuius domum repertus asininus pullus excerebratus, quae confessa in tormentis se usam cerebro ad philtrum, et flagellata in exilium missa. 15. Est incidium viciniae, quia in praedictis casibus etiam est praesumptio contra vicinos, quae idem operatur quod praecedens, et etiam eliditur, si vicini sint bonae famae, vel mortuus extra viciniam habebat inimicos, a quibus potuit occidi: Farinac. a n. 127. 16. Si quis tempore maleficii, vel incontinenti post, inveniatur in loco delicti, vel loco propinquo valde, et quasi contiguo cum armis seu instrumentis maleficii; tunc etiam si alias fuisset bonae famae, quia duo concurrunt (locus et instrumentum), posset subiici torturae, sine aliis adminiculis, quia tunc est indicium valde propinquum; si vero sit inventus sine instrumentis, tunc ad torturam necesse est concurrant aliae praesumptiones: vide Farinac. a n. 133. 17. Est quando quis frequentat locum vel viam, ubi maleficium commissum, vel visus est immediate ante in illo loco vel via ambulare: tunc si iste malae famae in similibus, poterit statim subdi torturae; si sit bonae famae, non nisi accedentibus aliis praeiudiciis. Intellige de eo qui alias non erat solitus locum vel viam illam frequentare, nec tunc habebat aliam iustam causam illac transeundi, ut quia volebat accedere domum suam, Ecclesiam, vel quid aliud: Farinac. a n. 138.

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(14) An even slighter piece of circumstantial evidence is if a dead person is found in the street near someone’s house, because then there is the same suspicion about the master of the house and the lodger. This is sufficient to warrant torture if the body was found right next to the house, if the master or the members of the household were at enmity with the deceased, or if there had been evil talk in a similar situation on another occasion, or if there are other concurrent strong presumptions. (See Farinacci, from number 120.) I remember the trial of a notorious prostitute in Madrid in 1573. A young donkey was found near her house. It brains had been removed and the woman confessed under torture that she had used them in a [magic] philtre. She was flogged and sent into exile.60 (15) This is circumstantial evidence of proximity, because in the foresaid cases there is a presumption against those living in the neighbourhood [of the crime]. This operates in the same way as the preceding, and even nullifies it if the neighbours are of good reputation, or the dead person had enemies outwith the neighbourhood who could have killed him. (Farinacci, from number 127.) (16) If, at the time of the malefice or immediately afterwards, someone is found where the offence took place, or very near it—‘next door to it’, so to speak—and if he is carrying weapons, or apparatus to carry out a malefice, then because there are two supporting pieces of circumstantial evidence— time and place—even if he is otherwise of good reputation, he can be subjected to torture without any other corroborative evidence because, under these circumstances, the circumstantial evidence is near at hand. If, however, he was found without implements, other presumptions must concur if torture is to be applied. (See Farinacci, from number 133.) (17) This is when someone haunts a place or a street where a malefice has been committed or has been walking there immediately beforehand. Under those circumstances, if he has a bad reputation because has done similar things [in the past], it will be possible to have him tortured at once; but if he is of good reputation, he cannot be tortured unless there are other attendant circumstances prejudicial to him. This, of course, applies to someone who has not been in the habit of frequenting that place or street and did not have some other good reason for passing that way, such as wanting to get to his own house, or a church, or something else. (Farinacci, from number 138.)

60

Del Río and his brother had matriculated at the University of Salamanca on 1st December, 1572. The distance between Madrid and Salamanca is c.135 miles, far too far for casual visiting, so Martín is most unlikely to have heard the story in Madrid at this time. He was there, however, in 1575 and early 1576, and this may be the most likely time for him to have heard about the incident.

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18. Desumitur ex illo Cassii, cui bono, nam praesumitur deliquisse qui causam habuit delinquendi gravem, et deliberatam, non subitam tantum vel levem, et sufficit hanc causam fuisse existimatam talem a reo, maxime si sit pronus in illam causam (ut in amorem vel odium), et dummodo appareat alium neminem hanc causam habuisse, et haec causa sit in specie iudicialiter probata, neque haec omnia sufficient ad torturam, nisi mala fama aut aliud indicium accesserit: Farinac. n. 144 cum seqq. ex Casono optime de hoc loquente, lib. De Indic. tract. 2, cap. 1 et cap. 3. 19. Acclamatio aut vociferatio in domo iniuriam patientium, et tum fugiens seu exiens ex domo visus, nam tunc quasi duo concurrunt indicia, quorum prius indicat delictum, posterius delinquentem, et unum iuvatur ab alio, ut sufficiat ad torturam, est indicium remotum, et per duos testes legitime probandum: Farinac. a n. 157. 20. Ex communi opinione Doctorum, et Iudicium, si cadaver positum coram reo sanguinem emittere inciperet, vel ex vulnere, vel ex ore, vel ex naribus: hoc indicium quidam magni faciunt, et | de eius causa alias a me disputatum hoc eodem opere. Ego istud indicium numquam existimarem sufficere ad torturam, quidquid graves, dd. quidam in contrarium dixerint. Moveor quia vere est indicium remotum, de quasi prodigiosum, de cuius causa non constat, et incertissimum, quod nullo iure vel causa iuridici probata nobis constat, et tortura maximi est praeiudicii, quare nisi accedant fama, minae, inimicitiae vel simile adminiculum, numquam ad torturam ex hoc indicio Deum timenti iudici procedendum, affirmavit: Farinac. n. 156 post Anton. Gomez fuse et prudenter hoc

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(18) This I have taken from Cassius’s ‘Who benefits?’ because the person who had a serious and deliberate reason, not simply an unexpected and trivial one, for committing the offence is presumed to have committed it;61 and it is sufficient for the accused to have thought that the reason was of such a kind, especially if he was prone to think like that, (because of love or hate, for example), and as long as it appears that no one else has had this reason [for committing the offence]; and this reason must have been specifically proved by a judge’s decision. None of this will be sufficient warrant for torture unless bad reputation or another piece of circumstantial evidence can be added to it. (Farinacci, number 144 and what he says next, which is based on [Francesco] Casone who speaks very well indeed about this in his book on circumstantial evidence, treatise 2, chapters 1 and 3.)62 (19) If people call out or shout when they are being hurt in a house and then someone has been seen running away or coming out of the house. In this case, two pieces of circumstantial evidence are running in tandem, so to speak, the one indicating the offence, the other the offender, and one is assisted by the other so as to make it sufficient to warrant torture. This is a piece of circumstantial evidence which is not directly connected with the offence and has to be proved legally by two witnesses. (Farinacci, from number 157.) (20) According to an opinion commonly held by scholars and judges, if a corpse is put in front of the accused and begins to bleed from a wound, or the mouth, or the nostrils, some people think this is an important piece of circumstantial evidence. I have disputed this elsewhere in this treatise. It is my opinion that this piece of evidence could never be sufficient to warrant torture, whatever eminent scholars have said to the contrary. I am prompted to say so because this is a piece of circumstantial evidence which does not directly prove that the accused must be guilty, and it smacks, as it were, of the marvellous. There is no agreement about what causes it. [As evidence], it is most unreliable and I am not convinced of it by any law or any reason which has been judicially proven; and torture is highly prejudicial [to the accused] because, unless reputation, threats, hostility, or some other corroborative evidence are added to it, a God-fearing judge should never proceed to torture on the strength of this piece of evidence. (Farinacci, number 156, following Anto-

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According to Cicero, Pro Roscio Amerino 84, Lucius Cassius Longinus Ravilla, (2nd century bc), formulated the question ‘who benefits?’ (cui bono?) in relation to a criminal offence. Francesco Casoni, (1500–1564), published Two Treatises on Circumstantial Evidence and Torture (‘De Indiciis et Tormentis tractatus duo’) in 1557. See further John Jeffries Martin, ‘Francesco Casoni and the rhetorical forensics of the body’, Journal of Mediaeval and Early Modern Studies 45 (January 2015), pp. 103–130.

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discutientem d. tom. 3, cap. 13 a num 15 et Marsi in Pract. § diligenter n. 181, Masc. et alios. 21. Sumunt quidam ex mala physiognomia et malo nomine, item si occulos in terram defigant; de malo nomine est sententia Marsilii, Bruni et multorum, sed haec meo iudicio prorsus est inanis praesumptio, quando nomen impositum puero a parentibus, si impositum viro aut adolescenti a moribus, ut solent malefici nomina invicem mutare, tunc haberem pro idoneo indicio ad probandum esse malum hominem in genere, non vero ad probandum speciale delictum aliquod, nisi ipsum nomen delictum illud significaret, sed tamen ad torturam solum hoc non sufficeret. Quoad oculorum in terram defixionem, hoc levius adhuc est; potest enim ex pudore oriri; nec est proprium unius in specie delicti, ac ne in genere quidem delicti sufficiens argumentum. Ut nec physionomia mala: quare de his omnibus indiciis prudenti iudici parum curandum est, quod non adverterunt duo I.C. haeretici, his nimium tribuentes, ut fortassis etiam Martin. de Arles. nec obstat quod directorum inquisitorum (in 3 part. in cap. De signis exterior. per quae Nicomantici haeretici dignoscuntur et magi haereticantes) scribit eos communius habere torvum visum et obliquum, ex visione, et appatione, et collocutione malorum spirituum; non enim illic ponit indicia sola ad torturam, sed etiam generalia quaedam ad dignoscendum personas, in quas formanda inquisitio, et haec ponit tantum, ut praeambula quaedam indicia ipsorum indiciorum ad torturam.

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nio Gómez who discusses this point at length and with good sense in Volume 3, chapter 13, from number 15; ‘Marcus’ in Practices, paragraph ‘carefully’, in number 181;63 [Giuseppe] Mascardi, and others.) (21) Some people think there is circumstantial evidence in an ugly physiognomy and an ill-omened name: likewise, if a person keeps his eyes fixed on the ground. ‘Ill-omened name’ is the opinion of [Ippolito] Marsili, [Giordano] Bruno, and many others. But in my judgement, this is an absolutely ridiculous presumption, since the name is given to a child by its parents. If it was given to him when he was an adult or an adolescent to please other people, (as workers of harmful magic are in the habit of changing their name for another one), then I should consider it a suitable piece of circumstantial evidence to prove that he is, (speaking generally), a wicked man. It would not be sufficient, however, to prove any particular offence, (unless the actual name were to signify the offence), and it would still not be sufficient, of itself, to warrant torture. As for keeping the eyes fixed on the ground, this is an even flimsier piece of evidence, because this can arise from modesty. It is not indicative of one offence in particular and is not even a sufficient proof of [someone’s having committed] an offence in general. Nor are ugly physiognomies, and so a sensible judge will have very little time for any of these pieces of circumstantial evidence. Two heretical legal experts64 have not noticed this last point, because they attribute far too much to these ‘indications’, as perhaps did Martin of Arles, too, and this is not contradicted by what he writes in his Handbook for Inquisitors, (Part 3, the chapter on external signs by which heretical necromancers and magicians can be recognised),—that these people have in common a grim, sidelong way of looking because this is how they look at the evil spirits who appear to them and converse with them. He does not, however, say that these pieces of circumstantial evidence alone are enough to warrant torture. A number of general points, too, [he says] are needed so that one can recognise individuals one ought to investigate. He says that these are simply pieces of circumstantial evidence precursory to the actual evidence which is enough to warrant [bringing these people] to torture.

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Antonio Gómez here may be referring to the Spanish jurist, (c.1500–c.1570). ‘Marcus’ appears as ‘Marsi’ in Del Río’s text. It is not clear to whom he is referring, but if ‘Marci’ rather than ‘Marsi’ is correct, this may be Marco Gatenaria, (died 1496), a physician who taught at the University of Padua and published a ‘Practica’, among his other works. A marginal note reveals he means Johann Gödelmann and Jean Bodin. Clearly Del Río did not put much faith in Bodin’s nominal adherence to the Catholic faith.

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22. Aeque leve indicium est, si quis natus sit ex mala patria et in qua multi tales criminosi; hinc enim nimis generalem suspicionem gigni patet, ut opt. docet Simancas; idem censeo de parentibus, quamquam sit indicium nonnihil propinquius, et magis immineat periculum ab his, quam a patria; et faveat suspicioni experientia, maxime quando mater est malefica, et magis adhuc si etiam avia fuit, hoc, ut certum admisere Godel. et Bodin., sed hoc etiam indicium, ut incertum reiiciunt, nisi iuvetur vehementibus praesumptionibus aliis, Catholici et prudentiores scriptores; magis urgeret hac in re conversatio et educatio cum tam malis parentibus, ad quam reduco praecedentem suspicionem; puto enim, si a talibus parentibus ortus, et ab his educatus fuerit, gigni suspicionem ad inquirendum, quando non est bonae famae reus; si aliud indicium praeterea accedat, posse torqueri. 23. Si quis inimicorum obiectione, vel amicorum admonitione insimulatus taceat, et quasi contemnat silentioque eludat, quidam putant idoneum indicium, quos citat Binsfeld., sed merito eos non sequitur, est enim leve et incertum indicium, indigens admiculo aliorum, etiam ad spe|cialem inquisitionem. 24. Si quis consueverit scelerata iuramenta, vel blasphemias, vel obscaenissima verba proferre, aut daemonem saepe nominare, seque aliosque illi frequenter devovere: verbi gratia, do te daemoni, auferat te diabolus, etc., si quis alia gravissima scelera specie differentia a Sortilegio committat, eum sortilegii suspectum censet Binsfeld., indic. 11, eo quod graves scriptores tradant huiusmodi suspectos esse de haeresi. Sed observa hoc indicium ad malam famam reduci, et dumtaxat solum sufficere ad inquirendum, ad torquendum non, nisi praesumptiones aliae adminiculentur. 25. Si dum torquentur, nullas emittant lacrymas, nam censent dd. quidam eas flere non posse, si velint, et ideo hoc indicium ponunt Sprenger. Grill. Bodin. Sed hoc merito alii inane et frivolum signum reputant, nam si loquuntur de lacrymis ex poenitentia vel devotione, illae non sunt spontaneae, sed a Deo cui

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(22) It is an equally slight piece of circumstantial evidence if someone was born in a wicked part of the world where there are many criminals of this type, because this clearly gives rise to an extremely generalised suspicion, as [Diego de] Simancas explains very well. I think the same can be said of his parents, although it may be a piece of circumstantial evidence in which there is a certain degree of truth. But there may be more danger from [his parents] than the part of the world [he comes from]. Experience may be in favour of the suspicion, most especially when his mother is a worker of harmful magic [malefica], and even more so if his grandmother was one as well. [Johann] Gödelmann and [Jean] Bodin allowed this to be reliable, too, but Catholic and more sensible writers reject this piece of circumstantial evidence as unreliable unless it is corroborated by other very strong presumptions. A person’s way of living and the way he has been brought up by such evil parents would count for more in relation to this business, and I relate the suspicion I mentioned to this. I also think that if someone has come from parents such as these, and has been brought up by them, it gives rise to a suspicion which ought to be investigated when the accused does not have a good reputation. Moreover, if it is accompanied by another piece of circumstantial evidence, he can be tortured. (23) If someone has been accused because of a charge laid by his enemies or an admonition by his friends, but he remains silent, as though he is being contemptuous and trying to escape by staying silent, a number of people think this is a piece of circumstantial evidence. [Peter] Binsfeld cites them but quite rightly does not follow them because, as evidence, this is slight and unreliable and needs the support of other pieces of evidence, even for a specific investigation. (24) If someone has been in the habit of uttering profane oaths, blasphemies, or very obscene words, or often naming an evil spirit and frequently making himself and others over to it—for example, ‘I give you to the evil spirit’, ‘May the Devil carry you off’, etc.—and if anyone commits other very serious crimes different in kind from witchcraft [sortilegio], Binsfeld regards him as suspect of witchcraft because important writers record that people of this kind are suspected of heresy. Notice, however, that this piece of evidence comes back to bad reputation and is simply sufficient to warrant investigation. It is enough to warrant torture only if other presumptions support it. (25) It is a piece of circumstantial evidence if they shed no tears while they are being tortured. A number of scholars think these women [eas] cannot weep, even if they want to, and therefore [Jakob] Sprenger, [Paolo] Grillando, and [Jean] Bodin take this as circumstantial evidence. Others quite rightly regard this as a useless and frivolous indication, because if people are talking about tears arising from repentance or devotion, those do not spring from the indi-

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lubet dantur; si de lacrymis propter sensum doloris, fieri potest ut sit talis quarumdam constitutio corporis, novi pueros, quos citius flagris discidisses, quam vel unam lacrymulam excussisses; e contra Picardorum haereticorum genus in Bohemia, quod Flentes vocant, aiunt ubertim flere quandocumque lubet. An ergo hi nequeunt esse striges? 26. Si vagae sint, saepe habitationem et domicilium mutantes, maxime post diffamationem, vel complices captos, hoc indicium est bonum indicium, sed commune omnibus criminosis, vim habet ad torturam, quando alia accedunt indicia; fallit si sit bonae famae, quia haec illud purgat; item si migrandi iustam causam probet. 27. Si singularitatem quandam prae se ferant impietatis vel religiositatis ostentatione, quoad diuturnas in templo moras, habitum etc., sic Binsfeld., ut verum tamen fatear, hoc indicium valde lubricum et leve est, hypocrisim potius probans, sortilegium vero, non nisi remotissime. 28. Quidam sagas volunt dignoscere ex eradicatione chrismatis in fronte, alii ex stigmate impresso, sed utrumque merito improbat Binsfeldus, nam quoad eradicationem illam, ridiculum hoc est; chrisma enim nihil visibile vel sensibile relinquit in vertice uncti, quoad stigma non omnibus illud inurit, sed iis tantum quibus diffidit eos constantes fore, ut iam alii observarunt; praecipuis non inurit; aliquando etiam delet cum capti sunt; et quando non delet, id relinquit, ut hanc superstitionem iudicum fovear, et sic nonnumquam innocentes plectantur, nec enim facile verum signum dignoscas a macula, vel naevo, vel clavo, vel impetigine naturali, tum quia non eadem est forma signi; aliquando est simile leporis vestigio, aliquando bufonis pedi, aliquando araneae, vel catello, vel gliri,

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vidual but are given by God to anyone He pleases. If they are talking about tears caused by these women’s feeling pain, it can happen that such is their physical constitution that they do not cry. I have known children you could have cut to pieces with a cane and still not wrung a single tear out of them. By contrast, there is a group of heretics in Bohemia, the Picards, who are called ‘Weepers’, and people say they cry copiously whenever they want.65 So are we saying these heretics are witches [striges]? (26) If people are nomadic and frequently change their habitation and place of abode, especially after they have been given a bad reputation, or after their accomplices have been arrested, this is a good piece of circumstantial evidence, and in common with all criminal cases it has sufficient power to warrant torture when other pieces of circumstantial evidence are added to it. It is useless [as evidence] if the person is of good reputation, because the one cancels out the other, and the same is true should it prove they have a good reason for wandering about. (27) [Peter] Binsfeld says it is a piece of circumstantial evidence if people behave with remarkable irreverence, or with a display of religiosity, such as staying in church for a long time, the way they conduct themselves, etc. But, to speak the truth, this is a very hazardous and slight piece of evidence which proves hypocrisy rather than witchcraft [sortilegium] and is more or less entirely irrelevant. (28) Some people have the notion that witches [sagas] can be recognised from the eradication of the baptismal oil from their forehead. Others [say they can be recognised] from a mark imprinted on them. Binsfeld rightly rejects both because (i) the eradication of the baptismal oil is a ridiculous idea, since the oil leaves nothing visible or perceptible on the crown of the anointed person’s head, and (ii) [the Devil] does not burn his mark on all of them, only on those he does not trust to remain faithful [to him]. (Others have already noted this.) He does not brand it on places which can easily be seen. Sometimes he even destroys it when they have been arrested, and when he does not destroy it, he leaves it in place so that it can encourage judges’ superstition—occasionally so that innocent people can be punished because of it. It is not easy, you see, to recognise a genuine mark from a blemish, a mole, a wart, or a natural scabby eruption on the surface of the skin. This is because the shape of the sign is not always the same—sometimes it is like a hare’s footprint, sometimes like a toad’s foot, sometimes like a spider, a small chain, or a dormouse—and because

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Picards were communities of highly unorthodox heretics found in Bohemia from the fourteenth century onwards.

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tum quia non idem locus; in virorum enim corpore saepe visitur sub palpebris, sub labiis, sub axillis in humeris, in sede ima; foeminis, etiam in mammis, vel muliebribus locis, tum etiam quia non omnium stigma est insensibile, ut docet experientia. Et si advertant se pungi, fingere dolorem possent, etiam quem non sentiant. Quamobrem Michaelius, Pneumalog., schol. 5, monet Iudices cum acu vel pugiunculo iubent stigma pungi, id tam caute fieri debere, ut striges non advertant; solere enim illas cum advertere fingere, se vehementer stimulatione hac cruciari. Plerumque etiam aliis ex causis sunt cicatricosae, quia sic in suos non raro daemon saevit | ut os totum lacerum ac dilaniarum relinquat, et perpetua inhaereant vestigia, ut de Rosa Gerardina testatur Remigius, cap. 13. Quamquam ex his ipsis cicatricibus aliud rursus, sed incertum nascitur indicium. 29. Longe certius indicium est, sequens: in Hallo villa Diocesis Traiectensis, foemina quaedam misera, die quadam pedes suos pelvi imponens, et extra illam retrorsum saltans, sic ait: hic salto de potestate Dei, in potestatem Diaboli; quam Diabolus mox rapiens, et in aera sustollens multis qui aderant in villa, sive extra villam videntibus, ultra altitudines nemorum transtulit, ita ut usque in hodiernum diem nusquam compareat: sic Caesar. lib. 11, cap. 60, et praecedenti capite, aperte indicavit hanc magicis artibus institisse. Sane huiusmodi dictum factumve, indicium urgentissimum et proximum putarim. Haec de indiciis, quaedam addamus de denunciatione. sectio v De denunciatione et testibus. Quid operetur denunciatio sive testimonium complicis ostensum luculenter Sect. 3. Nunc tantum addenda breviter quaedam de denunciatione et testimonio aliorum, qui teneantur denunciare, et testari, iam vidimus Sect. superiore. Nunc addo praxi receptum; per regulam qua leges dicuntur spectare ea quae frequentius contingunt, ut quae in haeresis crimine testimonia probationesque

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it is not always in the same place. In men’s bodies, it is often seen beneath the eyebrows, the lips, or right at the bottom of the underpart of the arm where it meets the shoulder, while in women it appears on the breasts as well, or in their private parts. Then again, everyone’s mark is not impervious to pain, as repeated testing tells us, and if they notice they are being pricked, they could pretend to feel pain even when they do not. Consequently, in scholion 5 of his Pneumology, [Sébastien] Michaëlis advises judges to have the mark pricked with a needle or a poniard and says that this should be done so warily that the witches [striges] do not notice, since when they do notice, they usually pretend they are being violently tortured by this pricking. Very often, too, the women are covered in scars for other reasons, because not infrequently the evil spirit vents his rage against his own people this way, with the result that he leaves their whole face torn and lacerated, and these marks are there permanently, (as [Nicolas] Rémy testifies of Rosa Gérardine in [Book 1], chapter 13.) Nevertheless, these very scars do produce another piece of evidence, although it is not a trustworthy one. (29) The following is a far more reliable piece of circumstantial evidence. One day, in the town of Hallum in the diocese of Utrecht, a wretched woman put her feet in a basin and then jumped out of it, saying ‘Here I am, jumping out of God’s power into that of the Devil!’ Whereupon the Devil snatched her away, lifted her up into the air, while many people both within and outwith the house were looking, and carried her beyond the tree-tops: and to this day no one has seen her anywhere. (Caesarius [of Heisterbach], Book 2, chapter 60.) In the preceding chapter, Caesarius openly declared that this had been done by magic. I should think that a word or an action of this kind would certainly be a most compelling piece of circumstantial evidence, and one which would be entirely relevant. So much for circumstantial evidence. Now let me add a number of remarks about laying information. Section 5 (i) Laying information against someone, (ii) witnesses What laying information, or the testimony of an accomplice, should do has been set out clearly in section 3. Now I simply need to add a few brief remarks about laying information and the testimony of other people who are obliged to lay information and testify. This we have seen already in an earlier section. Now I add what is done in practice in accordance with the legal principle whereby the laws are said to take notice of those things which are quite frequently relevant, such as the testimonies and proofs which are accepted in the crime of

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recipiuntur, eadem locum habeant in crimine Lamiarum, ratio, quia Lamiae semper suspectae sunt de haeresi, et raro haec suspicio fallit; semper enim earum facta fere sapiunt haeresim manifestam. Secundo, receptio testium debet ab ipsismet iudicibus seu inquisitoribus fieri; nec est deleganda, nisi magna ex causa, et prudenti ac probo viro; recipi possunt etiam ante litis contestationem, et etiam ratificatio testimoniorum fieri poterit extra tempus praestitutum ad probandum, si iusta et probabilis aliqua causa id exegerit; semper autem erit ratihabitio testium adhibenda, etiam si reus se habere illos pro ratificatis profiteretur. Publicatio quoque testimoniorum reo praebenda est, ut contra queat excipere; nomina testium vero non sunt in hoc crimine simul publicanda, quia periculum fere evidens hinc imminet variis ex causis testi, et negotia fidei sic retardarentur, metu perculsis testibus; consultum tamen, ut (quod fit in Hispania) iudices diligenter exquirant a reo num quos habeat inimicos, et testes suspectos in genere, quibus credi nollet, et quare? Confrontatione ergo testium et rei in hac materia non utendum, nisi magna ex causa, et omni periculo cessante, ut cessat quando complices deposuerunt. Et possunt testes super iisdem articulis etiam prorsus contrariis, facta iam publicatione, audiri: post multos Siman. supra n. 3. Tertio, possunt in hac causa iudicibus maxime Ecclesiasticis (ut sunt inquisitores) quaelibet personae egregiae, etiam quilibet consanguinei, compelli, ut se coram ipsis sistant, et testimonium perhibeant, quod fidei favore receptum. Ut autem in hoc crimine illustres coguntur, sic etiam infames alias personae, ut complices (de quibus actum) excommunicati, et similes; non ut plena eis fides | sicut aliis non famosis, sed quanta prudenti iudici videbitur, circumstantiis consideratis, praebeatur. Valet etiam testimonium auriti testis, qui se ex ipsomet reo dicit audivisse, non qui ex aliis sic intelligendus D. Chrys. Hom. 30 in Gen., cum negat ex auditu iudicandum, nec exceptio in hac causa contra testes admittitur, nisi quae testem penitus refellat, ut capitalis inimicitia,

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heresy. These have a place in the crime carried out by witches [lamiarum], the reason being that witches [lamiae] are always suspected of heresy; and this suspicion is rarely mistaken because what these women [earum] do always smacks of manifest heresy. (2) Listening to witnesses should be done by the judges or inquisitors themselves. It should not be delegated except for good reason, and [should then be delegated] to an experienced man of good character. Witnesses can also be heard before being called to give testimony in court, and it will also be possible for ratification of their testimonies to take place outwith the time set aside for proving them, if some just and credible reason demands it. But ratification of witnesses will always need to be done, even if the accused were to say he considers them to have been ratified. Their testimonies should also be made known to the accused so that he can know what is being said against him, but in this crime the names of witnesses should not be made known at the same time, because it is fairly clear that, for various reasons, there will be danger to a witness, and the business of believing what they have to say, too, would be hindered if witnesses were a prey to fear. This has been done so that, (as is the case in Spain), judges can press the accused about whether he has enemies, and whether his enemies are generally suspect, and whether he would be unwilling to believe them, and if not, why not. Witnesses and the accused should not, therefore, be confronted in connection with this subject unless there is a good reason and because there is no longer any danger, (such as happens which the witnesses have given their evidence). Once their testimony has been furnished, witnesses can also be heard in connection with that same evidence, even if it is completely contradictory. ([Diego de] Simancas, supra 3, following many people’s opinions.) (3) In this case judges, especially ecclesiastical judges, as inquisitors are, can compel any distinguished individuals to appear before them and furnish testimony, which is then heard with a predisposition to believe it. But just as, in the case of this crime, illustrious people are forced to appear under penalty of excommunication, so too are individuals who are ill-spoken of in other circumstances, (such as accomplices, with whom I have dealt already), and similar persons. This does not result in their being entirely believed the same way one believes others who do not have a bad reputation, but to the extent that an experienced judge decides they should be believed, after he has taken circumstances into account. The testimony of an aural witness who says he heard it from the accused himself, not from others, can also be heard. (This is how one should interpret St [John] Chrysostom in sermon 30 on Genesis when he says a case cannot be judged on aural evidence.) Objection to the witnesses is not admitted in this case unless there is something which rebuts the witness

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coniuratio, subornatio; caeterae tantum elevant fidem, non tollunt. Sed isti testes inhabiles, infames et non integri, tum demum admittendi, quando alii haberi nequeunt, ut in crimine isto ex natura rei et actus ut plurimum cotingit. Coactio autem illa fieri potest, non per incarcerationem (etsi quidam iudices hoc perperam faciant), sed exacto iureiurando se testimonium dicturos; item per excommunicationem; denique indicta mulcta, et captis pignoribus: lib. si quando C. de testibus, cap. 1.2. et ult. de testibus cog. Franc. Vivius in comm. opin. verbo testis citatus. Et cogi potest etiam qui iuravit se non revelaturum: cap. intimavit. de testibus et d. cap. ult. Vivius lib. 2, verb. confessionem. Quarto, quantumvis multiplicentur depositiones personarum infamium et complicum, non est procedendum iudici ex his solis ad condemnationem; scio contrarium communius teneri et in praxi obtinere, saltem ut poena puniatur extraordinaria, argumentum eorum est, non lex aliqua aut ratio urgens, sed generale brocardicum; ex multiplicatis indiciis debilibus resultare indicia indubitata. Sed hoc argumentum valde debile est, nec in rigore verum; numquam enim quae natura sua sunt dubia, possunt rem facere indubitatam, sicut nec multa venialia peccata unum mortale; nec multa aegra unum sanum, nec multa non alba unum album, nec multa tepida unum calidum etc., quando res non sunt subordinatae ad unum finem natura sua, sicut una depositio natura sua non subordinatur alteri. Deinde totum illud nihil fundamenti habet, nisi praesumptionem. Praeterea quis neget, quamvis rarum id sit, fieri tamen nonnumquam posse, ut uno casu plura concurrant indicia ad crimen non verum, quam ad verum? Esto sit probatio criminis admodum laboriosa, progrediatur hoc ergo ad torturam; si ad necem insontis extendis, nonne durus et saevus merito dicare? Sit crimen atrox natura: quid tum, si revera non commisit? Sic aliqui noxii elabentur, praestat decem elabi, quam unum innoxium condemnari;

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entirely, such as deadly enmity, conspiracy, or suborning of witnesses. Anything else merely detracts from believing them, it does not remove belief altogether. Disqualified witnesses who have a bad reputation and are not irreproachable can be admitted when others are not available, as very often happens in this crime because of the character of the accused and his actions. The compulsion I mentioned, however, should not be made by putting [the witnesses] in prison, even if a number of judges do actually do this, but by making them swear they will give their testimony, imposing a fine on them, and taking things as security. (Read ‘if when’ from [Justinian’s] Codex on witnesses, chapters 1, 2, and the last. On compelling witnesses, see Francisco Vivio in his Common Opinions, witness cited verbally).66 Someone who has sworn he will not reveal what he knows can also be compelled, (chapter ‘he has intimated’, [Codex, loc. cit] and Vivio in the last chapter of Book 2, ‘verbal confession’.) (4) However often the depositions made by accomplices and people of bad reputation may be multiplied, a judge should not proceed to find the accused guilty simply on the strength of these. I am aware that the opposite opinion is the one more commonly held and is the one which obtains in practice, at least when the punishment inflicted is not the usual one. Their argument is not any law or pressing reason, but the general rule that reliable evidence springs from weak pieces of circumstantial evidence which are frequently repeated. This argument, however, is very feeble and not strictly true, because things which are open to doubt by their very nature can never make something indubitable. Many venial sins, for example, do not make one mortal sin, having many illnesses does not amount to one person’s being healthy, many non-white things do not make one thing which is white, many warm things do not make one which is hot, etc. because things are not subordinated to a single end by their very nature, just as one temperament is not subordinated to another by its own nature. Secondly, that whole argument has absolutely no foundation except presumption. Moreover, who can deny that, even it is uncommon, it is sometimes possible for more pieces of circumstantial evidence in one case to agree that a crime has not taken place than that it has? Well, grant that this proof of a crime is very troubling and therefore that it is followed by torture. If you go as far as the murder of an innocent person, wouldn’t people quite rightly say you were harsh and savage? Suppose the crime were by its nature atrocious, what happens if he did not actually commit it? This way, some guilty people will escape, but it is better that ten such escape than that one innocent person 66

Codex 4.20. ‘If when’ = 4.20.19 preface. Francisco Vivio, (c.1532–1616), an Italian jurist, published his book on the common opinions of doctors of both civil and canon law, to which Del Río is referring, in 1565.

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si tortus fuit innoxius, potest ei solatii aliquid impendi; si damnatus et necatus, quod tu mortuo praebeas cataplasma? Denique ratum illud et receptum, etsi ad torquendum minora probationem adminicula sufficiant; ad damnandum necessaria esse luce meridiana clariora, nonne hoc illi ipsi fatentur dd., quibus Bodinus et alii contra sentientes sententiam suam confirmant: Marsil. Pract. crimin. § diligenter., n. 3, Chassaneus Supra Consul. Burg. rubr. 1 § 5, n. 123, Anton. Gabriel. D. concil. 7, n. 7, Iul. Clar. q. 21, n. 9, ubi hoc confirmat arrestis Burdegalens. et Parisiensibus Blanch. De iudic., n. 384, Monticella Reg. crim. 4, n. 6, Osascus Cons. 65, lib. 1, Farinacius, q. 43, n. 39, 62 et 73. Quos omnino hac in re puto iudici sequendos. Quinto, si testes isti complices, postquam aliquem, in tortura et concurrentibus caeteris necessariis, denunciarunt, et confessionem denominationemque hanc ratam habuerunt, et confirmarunt ad bancum, ut oportet, et ante sententiam; postea post sententiam, in loco supplicii, morte instante, | innocentiam denominatorum a se protestati iudici populoque fuerint, vel ipsis denunciatis coram omnibus dixerint se illos habere pro probis et inculpatis; sententia receptior est, iudici parum curandam esse huiusmodi palinodiam, tum quia raro sub mortem aeque sibi mente constant, ut ante illud tempus, quando confessio ratificatur, tum quia solent importunitate eorum qui denunciati fuere, vel admonentium de animae salute, vehementer rei sollicitari, et perturbari in extremo illo vitae puncto, tum quia haec recantatio non est facta adhibi-

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be found guilty. If the person tortured was innocent, he can derive some kind of comfort from this. If he was found guilty and executed, what poultice can you provide for a dead man? Thirdly, it is established and accepted that even if lesser pieces of supporting evidence are sufficient to warrant torture, these must be clearer than noonday to warrant finding someone guilty. Don’t the very scholars on whom [Jean] Bodin and others who think the opposite confirm this opinion? ([Ippolito] Marsili, Practice, paragraph ‘carefully’, number 3; [Barthélemy de] Chasseneuz, Customary Practices in the Duchy of Burgundy, rubric 1, paragraph 5, number 123; Antonio Gabrielli, Conclusions 7, number 7; Giulio Claro, question 21, number 9 where he confirms this with judgements from Burgundy and Paris; [Marco Antonio] Bianchi, Judgements, number 384; ‘Monticella’, Rules of Criminal [Practice] 4, number 6; [Ottaviano Cacherano d’] Osasco, Advice 65; Farinacci Book 1, question 43, numbers 39, 62, and 73.)67 I think a judge should follow them entirely in this matter. (5) If these witnesses are accomplices and, after laying information against someone during torture and any other necessary concomitant circumstances, they hold to this unalterable confession and giving up of names, and confirm them in front of the bench, (as they must), before being sentenced: and if later on, after sentencing, at the place of execution and when they are about to die, they bear witness to the judge and the people the innocence of those they have named or, after they themselves have been denounced in front of everyone, they say they consider themselves honourable and blameless, the more usual opinion is that the judge should take little notice of this recantation, partly because they are rarely as level-headed at the point of death as they were before, when they ratified their confession: partly because, as a result of the persistent demands of those whom they denounced, or those who are warning them about the salvation of their soul, guilty people are usually extremely agitated and disturbed at that last moment of their life: partly because this recantation has not been made under the circumstances usually present at his

67

Barthélemy de Chasseneuz, (1480–1541), was a French jurist. His book on the customary practices of Burgundy was published in 1517. Antonio Gabrielli, (died 1555), was a canonist and Dean of the Papal Consistory. His Common Conclusions and Opinions was written in seven Books. Marco Antonio Bianchi, (c.1498–c.1548), was a Doctor of both Canon and Civil Law from Pavia. He does not seem to have written a book with the title ‘Judgements’, so this may be a reference to his Treatise [drawn] from Various Interpreters of the Law, which was published in Lyon in 1549. ‘Monticella’ seems to be a misprint. Giovanni Maria Monticelli (floruit sixteenth century) published a new edition of his Important Summary concerning Witnesses in Civil and Criminal Cases in 1575, to which was added Twenty Rules of Criminal Practice. Ottaviano Cacherano d’Osasco, (died 1589), published his Advice and Replies (‘Consilia et Responsa’) in Venice in 1595.

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tis solemnitatibus, quae adfuere primae confessioni, ideo praevalet prior; tum quia ista est extraiudicialis, prior iudicialis. Confessio quidem non perseverans habetur pro nulla, sed demum, quando revocatur ante sententiam latam, non postea. Moriens praesumitur memor salutis, quando est animo imperturbato, et sibi bene praesens, nec tamen omnes morituri, maxime sortiarii, sunt Sancti, quare haec praesumptio levior est, quam qua nititur prior confessio, his argumentis hoc tenuere nonnulli; qui vero in terminis contrarium scripserit scio nullum. Confirmant qui docent rectissime dictum morientis non esse idoneum testimonium, ut alius torturae subiiciatur, nec in homicidio, nec in iudice dicente se tulisse falsam sententiam, nec in furti crimine, nec in aliis ullis, ex communi et in praxi recepta sententia. Cavendum ergo iudici, ne post denominationem factam, et lata iam sententia umquam permittat partes ad reum accedere; hoc enim ad nihil utile fuerit, nisi ut reum molestent, frustra quidam, si is non revocet; si revocet, damnosum id futurum, quia gignitur praeiudicium non exiguum iudicio, quod Sacrosanctum et indubitatum esse deceret; et ipsi quoque reo, qui falsum dixisse, vel falsitati consensisse sese in iudicio, ubi veritas dicenda, fatetur. Sexto, quando malefici isti complices suos produnt, et postea ex intervallo variant; idem servandum quod in causa haeresis solet servari; est enim eadem ratio huius criminis, et eadem praxis. In haeresi res non certa, nam sunt qui censeant standum illi testimonio quo haeresis revelatur, et ideo si primo testimonio haeresis revelatur, standum primo; si posteriore revelatur, standum posteriori; etiamsi alterum iuramento foret confirmatum; ratio est, favor fidei et religionis, qui ut facit, ne hoc crimen in perniciem Christianae religionis maneat occultum; etiam facit ut in dubio quis praesumatur haereticus quantum ad condemnationem poenitentiae in foro Ecclesiae imponendae, pro utilitate ani-

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first confession, (and in consequence the former [statement] is the one to take note of): and partly because the recantation is extrajudicial and the confession judicial. Indeed, a confession which is not steadfast is considered worthless— but only when it is revoked before sentence is passed, not afterwards. A dying person is presumed to be mindful of his salvation, at a point when his mind is undisturbed and he is recollected, but not all those who are about to die, especially diviners [sortiarii] are in a state of holiness.68 Consequently, this presumption is more slight than the one on which the person’s earlier confession rests. Several people have believed this because of these arguments, but I am not aware of anyone who has written that the opposite is true in the last moments of life. Those who provide the most correct instruction confirm that what a dying person says is not testimony sufficient to warrant having someone else tortured. Nor, according to commonly received opinion and practice, is a judge’s saying in a case of murder or theft or any other crime that the sentence he has passed is a mistake. A judge must therefore be careful not to allow the [contending] parties to approach the accused after he has been named and sentence has already been passed, because this will be of no use at all, except to annoy the accused. Indeed, this will be to no purpose if the judge does not recall him, and if he does recall him, it will do him no good because it gives rise to no small prejudice in regard to the judge’s decision, and it would be better for this to be sacrosanct and have no doubts attached to it. [It also gives rise to prejudice] against the accused himself, too, when he says he has said something which is not true, or that he has agreed to a fallacy in the judgement, when he should speak the truth. (6) When workers of harmful magic [malefici] betray their accomplices and change their story some time later, this should stand, because it usually does stand in a case of heresy, and the same reason applies, and the same practice is observed in this crime. In heresy the situation is not fixed, because there are those who think that testimony whereby heresy is uncovered should stand, and therefore if heresy is uncovered by someone’s first testimony, that first testimony should stand, but if it is uncovered by a later testimony, the later testimony should stand, even if the earlier one were to be confirmed by an oath. The reason is that it favours faith and religion, and when someone makes sure that this crime, which is intended to overthrow the Christian religion, does not remain hidden, he also makes sure that, in as much as someone is indisputably presumed to be a heretic, he is sentenced to a penance which will be

68

Given the possible flexibility of many Latin terms for magical practitioners, this could also refer to witches.

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mae. In primis observo forum Ecclesiae duplex esse, unum publicum, ut est inquisitorum; aliud privatum et secretum, ut est poenitentiariorum seu confessorum, quoad secundum facile admiserim hanc sententiam tot dd.; nullum enim haec praesumptio damnum, immo et commodum adfert poenitenti. Quoad prius forum, quia res est maximi praeiudicii, et solent inquisitores vel bracchio saeculari tradere, vel alia etiam corporis afflictiva poena, cum publica ignominia, reum afficere; valde haesitare me fateor. Sane nec Iac Simancas Episc. Pacensis, et postea Zamorensis, hoc simpliciter admittit, cuius haec sunt verba, de hac testimonii correctione loquentis: “nec audiendi sunt qui putant eo dumtaxat casu id accipiendum esse, cum posterius testimonium (scilicet, revelans, quando primum non revelabat) est con|tra reum in favorem fidei. Nam licet eam speciem lex expresserit, mens tamen legislatoris aliud proculdubio vult; aequalitas enim iustitiae servanda est inter accusatorem et reum, quinetiam reis favorabiliores esse debemus, et ad adsolvendum, quam ad condemnandum proniores.” Quid ergo dicemus? Utique censeo si utrumque testimonium confirmetur iudiciali iureiurando, et aeque probabilibus nitatur coniecturis ac rationibus, priori potius standum, sive revelet, sive non. Nam favor fidei ad tam magnum praeiudicium rei porrigi non debet. Si utrumque confirmatum sit iureiurando, sed unum iudiciali, alterum spontaneo et extraiudiciali, standum illi quod iudiciali nititur. Et quia prius semper coram iudice solemniter perhibetur, posterius vel raro vel numquam; semper tum standum erit priori, accedit quod quando iurat in posteriore, eo ipso iam declarat se piriurum, qui prius falsum iurarit; priore quoque testimonio iam ius quaesitum, quod idem testis non potest auferre; posterius denique semper laborat suspicione subornationis, ut teste Simanca Demosthenes Lampidi obiecit. Uno tantum casu puto standum poste-

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imposed in a Church court for the good of his soul. I notice particularly that a Church court has two parts to it, one public, (such as a court of inquisitors), the other private and secret, (such as that of penitents or confessors.) In respect of the second, I can easily grant this opinion held by so many scholars, because this presumption brings no loss to the penitent: indeed, it brings him advantage. As far as the first court is concerned, because the situation is one of very great prejudice, and inquisitors are accustomed to hand over [the heretic] either to the secular arm or to have some other physical punishment inflicted on him, and the accused is affected by public humiliation, I admit I am very hesitant. Certainly Jacopo Simancas, Bishop of Badajoz and later of Zamora, admits this straightforwardly. The following is what he says about the person who corrects his testimony. ‘Those who think this should be accepted only in this case ought not to be given a hearing when their later testimony,’ (namely, the one which uncovers [the heresy] when it did not uncover it in the first place), ‘is opposed to the accused and in favour of the Faith, because although the law describes this kind of situation, the legislator’s intention is undoubtedly something different, since equality should be preserved between the accuser and the accused. Indeed, we ought to be more favourably inclined towards those who are accused and more prone to acquit them than to find them guilty.’69 So, what am I going to say? Certainly, I think that if each testimony is confirmed by a judicial oath and relies on conjectures and arguments which are equally likely to be true, the former testimony should stand, whether it uncovers [the crime] or not, because the Faith’s favour ought not to be extended to such great prejudice to the accused. If both are confirmed without an oath, but one is given judicially and the other spontaneously and extrajudicially, the one which was given judicially should stand. This is because the first testimony is always given in solemn form in front of a judge, the latter rarely or never, and under those circumstances one will always credit the former testimony because the fact is that when [a witness] swears to the latter testimony, he makes it clear by doing so that he is perjured, since he swore a false oath the first time, and under these circumstances a right has been sought which the same witness cannot take away by means of his earlier testimony. Lastly, the second testimony always labours under the suspicion that it has been suborned, as Simancas tells us was the case when Demosthenes objected to Lampis.70 I think that in one case only should the later testimony stand, whether it was sworn or 69 70

Del Río seems to be confusing two people. The Bishop of Badajz and Zamora was Diego de Simancas. Jacopo Simancas (floruit sixteenth century) was a distinguished canonist. See Demosthenes, Orations: Against Phormio 21.

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riori, sive iuratum sit, sive non; quando apparet manifestis indiciis testem non levitate aut odio, non prece aut precio, sed iusta omnino ex causa testimonium correxisse. Quod vero idem Simancas putat maiorem praesumptionem adhuc fore pro testimonio posteriore, si reus moriens illud pro exoneratione suae conscientiae perhibuerit, quia tunc nemo praesumitur peierare, vel salutis suae immemor esse, ex D. Chrysost., Homil., 5 in 2 ad Timoth. Roman. Igneo et Mars.; id iam supra docui non procedere, quando iis quae iuravit, contradicit post sententiam latam, in tali etiam haec praesumptio cessat. sectio vi De iis quae loco accusationis esse solent in hoc crimine, et de accusatione ipsa. Accusatio, quae aliquando sequitur incarcerationem, aliquando praecedit solemnior est, quam denunciatio; est enim maleficii alicuius apud iudicem, ad vindictam publicam solemniter facta delatio; sed in praxi querela successit in locum accusationis, quare ubi iudex non potest procedere ex officio contra delinquentem, nemine querelam proponente (quod in non multis locis est, plerisque enim potest iudex ex officio, in quocumque delicto procedere, et ideo in plerisque locis inquisitio successit in locum accusationis) ibi contra querelam omnia possunt obiici, quae contra accusationem. Quoad personam, in hoc crimine admittuntur omnes alias inhabiles, quia est crimen exceptum, ut communiter omnes fatentur, et ideo in hoc crimine laicus poterit accusare clericum; admittitur etiam minor viginti annis, etiam si suam vel suorum non prosequatur iniuriam; admittitur mulier, admittuntur infames et criminosi, et

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not—when it appears, as the result of clear circumstantial evidence, that the witness corrected his testimony, not out of light-mindedness or hatred, and not because he had been begged or bribed, but for an entirely good reason. Simancas, however, thinks it will be a still greater presumption in favour of the second testimony if the accused furnishes it while he is dying, in order to clear his conscience, because it is presumed that under those circumstances no one commits perjury or is unmindful of his salvation. (See St [John] Chrysostom’s fifth sermon on 2 Timothy, [Lodovico] Romano, [Jean] Feu, and Marsilio].)71 I said earlier that this does not take place when he contradicts what he has sworn after sentence has been passed. In such a situation, this presumption also ceases. Section 6 Things which usually take the place of an accusation in this case, and the accusation itself An accusation, which sometimes follows imprisonment and sometimes precedes it, is more formal than a denunciation, because the delation of any worker of harmful magic [malefici] is made formally in front of a judge in order to protect the public. In practice, however, a complaint takes the place of an accusation, and so when a judge cannot proceed ex officio against an offender and no one is making a complaint—this does not happen in many places because in most of them a judge can proceed ex officio against any offence at all, and therefore in most places an investigation takes the place of an accusation—in that case any objection which can be made to an accusation can also be made to a complaint. With regard to the person: anyone who would otherwise be disqualified is allowed to offer evidence in this crime because this is a crime which falls outwith the normal legal rules, as everyone in general acknowledges, and therefore in this crime a lay person will be able to accuse a cleric. Someone under the age of twenty is admissible, too, even if he is not prosecuting a harm which has been done to himself or to his family. A woman is admissible, and so are those of bad reputation—criminals, even an accomplice

71

Lodovico Pontano, also known as Romano, (1409–1439). See further T. Woelki, Lodovico Pontano (c.1409–1439): Eine Juristenkarriere an Universität, Fürstenhof, Kurie und Konzil, Leiden & Boston: Brill 2011. Jean Feu, (1477–1549), published his Commentaries on a Number of Princes’ Constitutions (‘Commentarii in Aliquot Constitutiones Principum’) in 1541. ‘Marsilio’ may refer to Marsilio Mantighelli, a canonist from Bologna, active at the end of the thirteenth century, or to Ippolito Marsili, (1450–1529), a lawyer and physician.

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etiam socius criminis; etiam excommunicati, excommunicatione maiori; soli repelluntur ab accusando inimici capitales. Quod receptum de capitali inimico, quia est impedimentum iuris naturalis. Quoad excommunicatos excommunicatione maiori, licet illi actores esse non | possint, nec illis possit ius dici, et videantur illos excludere Clarus, q. 14, n. 16, et Farinac. supra n. 32; verius tamen est eos non excludi in hoc crimine, sicut nec in haeresi, ut fatetur ipse Farinac. n. 56, ubi praeter inimicum dicit nullum inhabilem in exceptis criminibus excludi, nec puto hoc Clarum voluisse negare. Quo pacto enim complices admittantur, qui fere omnes sunt excommunicati? Ad rationem contrariam respondeo, non ipsis ius dici tunc, sed Deo, cuius directe causa agitur, quando fides defenditur. Secundo, debet accusator crimen iudici proponere cum indiciis et argumentis suspicionum, et idonee cavere de damno resarciendo, si succumbat, et incarcerari donec caveat. Calumniator tenetur ad damna, expensas, et interesse calumniati, et iure communi ac constitutione Pii v ad poenam talionis; plerisque in locis ex iure consuetudinario, poena arbitria, pecuniaria, vel corporali: vide Farinac., d. q. 16. sectio vii De apprehensione, et carcere. Quamvis nemini liceat auctoritate sua maleficos occidere, licet tamen cuique in manifesto crimine deprehensos comprehendere, et iudici offerre: ut explicanda lib. ult. De malef. iuxta Binsfed., nam si lex illa, generaliter accipiatur, esset rixarum seminarium, quia maleficus merito se defenderet, et aperiretur occasio petulantibus innoxios comprehendendi, addo praeterea requiri, ut vel

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in the crime, and excommunicates. The only people prevented from bringing a charge are mortal enemies, and this is accepted in the case of a mortal enemy because it is contrary to natural justice. As for those who have been excommunicated by major excommunication,72 even though these people cannot be plaintiffs, and legal judgement cannot be given in their favour—and [Giulio] Claro, (question 14, number 16), and Farinacci (supra, number 32), seem to exclude them [from the legal process]—it is more accurate to say that they are not excluded in this crime, just as they are not excluded in a case of heresy, as Farinacci himself acknowledges in number 56 where he says that no one who is disqualified, (apart from an enemy), is excluded in crimes which fall outwith the normal legal rules; and I do not think Claro wanted to deny it, because how can accomplices be admitted when they have almost all been excommunicated? My answer to the argument against this is that under those circumstances, legal judgement is not being given for them, but for God whose cause is being dealt with directly when the Faith is being defended. Secondly, the plaintiff ought to put his case to the judge with circumstantial evidence and proofs [to support] his suspicions and be suitably on his guard about having to make good the damage if he loses and being imprisoned until such time as he does so. A slanderer is obliged to make good the damages and pay expenses and compensation to the person he has slandered and, according to general law and Pius v’s constitution, to suffer retaliatory punishment. By customary law this means a punishment decided by a judge, pecuniary punishment, or corporal punishment. (See Farinacci, op.cit. question 16.) Section 7 Arrest and imprisonment Although no one is allowed to kill workers of harmful magic [maleficos] on his own authority, anyone is allowed to arrest those who have been caught committing what is obviously a crime, and bring them before a judge, as is explained, according to [Peter] Binsfeld, at the end of the law on workers of harmful magic.73 If that law were generally accepted, it would be a seed-bed of quarrels because the worker of harmful magic [maleficus] would quite rightly defend himself, and this would open up an opportunity for individuals who 72 73

I.e. absolute and complete excommunication, as opposed to exclusion from the sacraments, but not from membership of the Church. The reference is to Justinian’s Codex 9.18, ‘Works of harmful magic, astrologers, and all the rest of this kind of thing’, (De maleficiis, et mathematicis et ceteris similibus.)

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sortilegus sit fugitivus, vel desit copia iudicis, vel bellum fuerit indictum talibus, ut de haereticis contra Goffredum et Alberic. docet Simanca, vel etiam nisi maleficus ille sit bannitus; alias, qui non habens merum imperium et non existens in maiori magistratu caperet et incarceraret, iniuste faceret. Potest autem capi quovis loco, et tempore, et cuiuis carceri includi, quia exutus est omni privilegio, neque illa procedunt in criminibus atrocissimis, quare etiam possunt detineri in compedibus, manicis, cippis; possunt pro poenna teneri in carcere obscuro et tetro, in quo intra paucos dies moriantur, sed hoc intellige postquam crimen confessi, vel convicti, et damnati, de crimine mortem merente. Capi tamen non poterunt nisi praecesserit informatio aliqua, post indicia legitima; ex aequiore sententia: legitima vero ad capturam esse eadem, quae sunt ad instituendam inquisitionem generalem, videtur velle Menoch. lib. 1 De praesumpt., q. 88, n. 1, de quo haesito; immo Simancas vult in crimine haeresis neminem capi, nisi iudices compererint plusquam semiplenis probationibus reos urgeri; ratio quia sola etiam captura in crimine haeresis vehementer infamat; verum haec sententia, nec satis fundata est, nec satis tuta reip. quam privatim misericors in reos, tam publice noxia, et in commune vergens periculum. Nam semiplenae probationes omnium iudicio ad quaestionem etiam in criminibus minus reip. noxiis sufficiunt. Deinde, quo crimen est atrocius, et in commune perniciosus, hoc levioribus iudex indiciis fretus potest ad capiendum procedere. Sed et personarum habenda est ratio, ut facilius procedatur

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were merely petulant to have innocent people arrested. I add further that the law requires either that the diviner [sortilegus] be a fugitive,74 or that the judge not have an opportunity to act, or that war have been proclaimed on such people, (as [Diego de] Simancas tells us in the case of heretics against [Cardinal] Goffredo and [Fra] Alberico),75 even if the worker of harmful magic has not been banished. Otherwise, a person who did not have complete authority and did not hold one of the more important magistracies, and then arrested and imprisoned [the magical worker], would be acting unjustly. But [a magical worker] can be arrested anywhere at any time and imprisoned because he has been stripped of every privilege, and privileges do not count in the most dreadful crimes. Therefore [magical workers] can also be detained in fetters, manacles, and stocks, and held by way of punishment in a dark, noisome prison where they can die within a few days. (Be aware, however, that this should happen after they have confessed to a crime deserving of death and have been found guilty and sentenced.) But, according to more equitable opinion, one will not be able to arrest them unless some kind of information has been laid against them first, followed by legally acceptable pieces of circumstantial evidence. It seems, however, that [Giacomo] Menochio thinks that the things which are legally required for someone to make an arrest are the same as those needed to set up an investigation, (Presumptions Book 1, question 88, number 1). I am not sure about this. Simancas certainly means that in the crime of heresy no one is arrested except [in a case where] the judges find out later that the accused was brought to their notice because of incomplete evidence. His argument is that, in the crime of heresy, an arrest merely brings someone into serious disrepute. But this opinion is neither sufficiently well founded nor a sufficient safeguard for the state, and while in the individual case it is merciful to the accused as far as the public is concerned, it is harmful and verges upon being a danger to everyone, since incomplete evidence is, in everyone’s judgement, enough to warrant an investigation, even in crimes which are less harmful to the state. Secondly, the worse the crime and, generally speaking, the more destructive, the more a judge, relying upon fairly slight pieces of circumstantial evidence, has the power to proceed to have [the perpetrator] arrested. But one has to take [the

74

75

Again, Latin actually distinguishes between the maleficus and the sortilegus, although here the context appears to suggest that both terms simply refer to a magical practitioner. The first implies that he specialised in working harmful magic, the second that he specialised in divination—‘he’ because both terms here are masculine. A reference to an incident which took place in Lombardy in 1232–1233. Fra Alberico had just been appointed inquisitor there in 1232.

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contra vilem, et pauperem, et plebeium, quam contra nobilem, bonae famae, et locupletem. Forte opinionum diversitas quam | Pacensis Episcop. hac in re inveniebat, in praeceps eum egit; nam si octo enumeratis a Farinacio, addas aliam Gomesii, et commemoratam Simancae, iam decem numerabis. Illis praetermissis, primum statuo iudici de delicto commisso constare debere, ut vult Gomesius, sed id intelligo, quando de actu extrinseco et damno dato agitur. Deinde statuo iudicis arbitrio permitti, quando sine, vel cum quibus indiciis, capere reum debeat; verumtamen eum oportere legibus, ratione, et aequitate hoc suum arbitrium moderari, considerata criminis, et personarum qualitate, quare ad simplicem querelam sive delationem numquam sim auctor, ut ad capturam, ne vilium quidem personarum, se iudex accingat, nisi delator summarie probet reum esse suspectum de fuga, et idonee caveat per fideiussores, aut si persona sit locuples, se suaque obliget, pro refusione impensarum, damnorum, et interesse, casu quo querelam suam non probaret. His enim concurrentibus Castrens. Bald., et aliorum veterum sententia recipi poterit, alias certe nimis rigida. Poterit eodem modo iudex procedere, quando ad delationem accedit nominatio seu indicium ab ipso infirmo periculose laborante (verbi gratia, defertur ad iudicem a medicis, Petrum esse maleficio laesum; iudex ex officio mittit Notarium ad Petrum, qui interroget quem putat auctorem maleficii, Petrus nominat Ioannem, qui iam delatus fuerat ab alio); ratio praxis est, quia talis infirmus adhuc sensibus et iudicio integer animo imperturbato, praesumitur merito salutis suae memor, et huiusmodi infirmitas habetur pro quadam specie torture; ideo iste torto comparatur; nec dici

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status of] the individual into account, the consequence being that it is easier to proceed against the low-born, the poor, and the working-class than it is against the well-born, the reputable, and the rich. Perhaps the diversity of opinions the Bishop of Badajoz found in this subject drove him to say what he did, because if you add one of [Antonio] Gómez’s opinions to the eight recorded by Farinacci, and the one mentioned by Simancas, you get ten.76 That said, first I think it is generally agreed that, as Gómez says, a judge ought to deal with the offence which has been committed, but I interpret this to mean when one is dealing with an act done by someone other than oneself and the resulting damage. Secondly, I think it ought to be left to the judge’s discretion when he should arrest the accused without circumstantial evidence, or to decide what that circumstantial evidence is, but that he must temper this decision of his by means of the law, reason, and equity, after giving consideration to the character of the crime and the people involved. Consequently, I hope I am never the instigator of a simple complaint or delation which results in a judge’s preparing to make an arrest—not even of low-born individuals. Unless the accuser gives a summary of the proof which makes him suspect the accused will run away, [the judge] must take proper care to have sureties [to prevent it] or, (if the individual is rich), make sure he is obliged to make good expenses and damages, and pay compensation if he does not prove his complaint in this case. Provided these points are concurrent, one can accept the opinion of [Paolo di] Castro, Baldo degli Ubaldi, and other earlier writers which would otherwise be much too inflexible.77 A judge will be able to proceed in the same way when someone suffering from a dangerous illness provides a name or circumstantial evidence in his accusation. (For example, physicians tell a judge that ‘Peter’ has been injured by an act of harmful magic [maleficio]. Ex officio the judge sends a notary to ‘Peter’ who asks who he thinks is the author of the malefice, and ‘Peter’ names John who had already been accused by someone else.) The reason is practical, because a person who is ill in this fashion, and still has his senses and judgement unimpaired and a cool mind, is rightly presumed to be mindful of his salvation. An illness of this kind is considered to be a kind of torture, and therefore the person is compared to someone who has been tortured. Nor can the

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Antonio Gómez (c.1501–c.1572) published Commentaria Tripartita in Salamanca in 1554. Del Río’s marginal note identifies this Gómez as Antonio and the reference to vol. 3 suggests the Commentaria Tripartita as Del Río’s reference here. Paolo di Castro, (died 1441), was a pupil of Baldo degli Ubaldi in Perugia. His readings on the Digest of Justinian were well known and his writings were published in eight volumes in 1593.

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potest spontaneus delator, neque hic locum habent alia illa impedimenta, quae recensuimus contra nominationem sortiarii in ultimo supplicio deponentis. Optarem tamen hoc casu hanc nominationem infirmi nudam non esse, sed ornatam causis opinionis sive suspicionis, cur illum credat auctorem. Denique notandum quod socii unius denunciatio, indicium sufficiens praebeat ad capturam, si aliud indicium accedat. Sic post multos Menoch. lib. 2 De arbitr. iudic., cent. 474, n. 25, Mascard. vol. 3 De probat. conclus. 1311, n. 10 et 11. Porro ad solam informationem extraiudicialem in scripta non redactam, sive quae non sit in actis et apud acta, quicquid nonnulli censuerint, non arbitror capere licere, nisi duae saltem a Claro requisitae conditiones concurrant, scilicet ut delictum sit enorme (quale est crimen maleficorum) et periculum sit, ne reus aufugiat, interea dum informationes in actis recipiuntur, quod periculum cum semper fere sit in maleficis, quae ut plurimum sunt viles personae proclives in fugam, vix accidit ut iudici non liceat post nudam huiusmodi extraiudicialem informationem, vel post querelam, qualem diximus, incarcerare. Prosper Farinacius addit tertiam conditionem, ut iudex securus sit, quod post captum reum venient testes deposituri, sed cum Salyce. Claro, et Cavense, quos ille citat, puto priores duas sufficere. Illud optime idem Prosper admonuit: “malefacere iudices illos, qui lucri causa multos penes se habent exploratores, et ad simplicem unius illorum relationem reos in carcerem compingunt. Haec enim praedicta damnabilis est (inquit) nec in iudiciis per principes toleranda.” Quoad personas nobiles, et honestiores genere vel dignitate; etiam coniuges respectu marito|rum, eas sub fideiussoria, immo et iuratoria cautione relaxandas censuit Godelmant. et multos citavit, sed in primis illi dd. non loquuntur

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accuser be said to be acting of his own accord, in which case the other impediments I reviewed against the naming of a magical practitioner [sortiarii] who is on the point of being executed have no place. In this case I should like this naming by the sick person not to be simple and unadorned, but to be accompanied by his reason or suspicion for believing that [the person he has named] is the author [of his illness]. Lastly, it should be noted that the accusation of a single accomplice can furnish circumstantial evidence sufficient to warrant an arrest, if it is accompanied by another piece of evidence. This, following many others, is what [Giacomo] Menochio says in his [Questions] depending on a Judge’s Decision Book 2, century 474, number 25, and [Giuseppe] Mascardi in Proofs Vol. 3, conclusion 1311, numbers 10 and 11. Indeed, whatever several people think, in my opinion it is not permissible to arrest someone merely on the strength of a piece of extrajudicial information which has not been put in writing, or which is not contained in additions to written documents made and sworn to in front of officials, unless at least two conditions, (required by [Giulio] Claro), coincide: namely, that the offence be a very serious one, (as the crime of workers of harmful magic is), and that there is a danger the accused may run away while the information is being recorded in documentary form. Since there is always this danger in the case of workers of harmful magic who are, for the most part, worthless people who have a tendency to run away, it hardly ever happens that a judge is not allowed to imprison such a person, following extrajudicial information of this kind, or after a complaint such as I have described. Prospero Farinacci adds a third condition—that the judge be confident that after the accused has been arrested, witnesses will come to lay their evidence before him. But I think, (along with [Bartolomeo] Saliceto, [Giulio] Claro, and [Pietro Mangrella] della Cava, whom he cites), that the first two conditions I mentioned are enough.78 Prospero speaks about this very well. ‘Those judges who pay to have many spies under their control and lock up accused persons on the simple say-so of one of these people, are doing a wicked thing because it is a damnable practice,’ (he says), ‘and princes should not tolerate it in their law-courts.’ As for people who are well-born and rather respectable because of the family they come from or the social position they hold, [Johann] Gödelmann thought that, out of respect for their husbands, even their wives should be released

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Bartolomeo de Saliceto (1330–1412) was a jurist, best known for his commentaries on Justinian’s Codex and Digest. Pietro Mangella (floruit late fifteenth—early sixteenth century) was both a jurist and a theologian. His name tends to be associated with that of Bartolo da Sassoferrato, the eminent Mediaeval jurist, in the titles of his published work which consists largely of commentaries on Sassoferrato.

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in terminis et expresse de nostro crimine. Deinde nec in genere, quando venit infligenda poena mortis, id verum est in aliis criminibus, si rei alias ex carcere fugerint, vel si delictum sit notorium, vel in flagranti crimine sint reperti, vel ad torturam iam adiudicati. Praeterea requiritur ut iudex reum reperiat innocentem, vel saltem valde dubitet, et utroque casu cautio illa non admittitur, nisi finito proccessu et completo. Denique certum est non cogi iudicem dimittere, sed hoc totum, ab eius arbitrio, prudenter perpensis circumstantiis omnibus, dependere; nec facilis esse debet in nostro crimine, quod, sicut haeresis, omni privilegio et dignitate reum penitus spoliat. Numquam sane dimitterem sub iuratoria cautione tantum (quo modo qui Deo periuri, mihi iusiurandum servent!) sub fideiussoria vero, non nisi urgentibus gravissimis causis, et quando fideiussores se ut custodes obligarent, quo casu multo melius prospicitur reip. quam si ut fideiussores tantumque; vae cautela a Soare accepta placuit Menochio eam explicanti. Capi sortiarios seu maleficos etiam in Ecclesia posse, puto ex multiplici capite, tum quia crimen est atrocissimum, tum quia sunt sacrilegi, tam quia blasphemi, tum quia venefici et homicidae deliberati et proditorii, tum quia sunt ut plurimum haeretici et apostatae, nam nullis istorum suffragatur immunitas loci sacri, ne ibi quidem ubi viget; et in casu quo non valet immunitas, volunt multi etiam non requisito Episcopo reum extrahi per iudicem saecularem posse; alii tamen volunt ab Episcopo veniam peti; prior opinio de iure verior et receptior erat ante bullam Gregorii xiv optimi et laudatissimi Pontificis, qua expresse cautum: “ne liceat saecularibus iudicibus sine Episcopi licentia aliquem ex Ecclesia extrahere, etiam in casu alias permisso, nisi si

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under surety and sworn bail, and he cites many [authorities]. But, in the first place those scholars are not talking specifically and expressly about the crime I am discussing, and secondly, when it comes to inflicting the death penalty, this is not generally true in other crimes if the accused escapes from prison [and goes] elsewhere, or if their offence is well known, or they have been discovered actually committing the crime, or have already been condemned to be tortured. Moreover, the judge has to find the accused not guilty, or at least have serious doubts, and in both cases the bond we are discussing is not granted unless the trial has been finished and completed. Lastly, it is certain that the judge is not forced to release [the accused]. This depends entirely on his decision, after he has discreetly and carefully taken into account all the circumstances. He ought not to be easy-going in the crime we are talking about because, just as in the case of heresy, it strips the accused completely of every privilege and honour. I should certainly never release him simply under a sworn bond—how can those who break their word to God keep their word to me?— but under surety, except in the most serious and pressing cases, and provided the guarantors of the surety obligate themselves to act as custodians, in which case the prospects for the state are much better than if they were merely guarantors. (It’s such a shame that Menochio was happy with the warranty he was explaining, and which had been accepted by [Francisco] Suárez!)79 For a variety of reasons, I think casters of lots [sortiarios] or workers of harmful magic [maleficos] can be arrested even in a church, partly because their crime is absolutely appalling, partly because they are sacrilegious, partly because they are blasphemers, partly because they are deliberate, traitorous murderers and workers of poisonous magic [venefici], and partly because they are for the most part heretics and apostates. The sanctuary of a sacred place should not be afforded any of them, not even where sanctuary is held in high esteem, and in a case in which sanctuary does not apply, many people think an accused person can be removed by a judge without asking [permission] from the Bishop. Others, however, say that permission can be sought of the Bishop. The former was legally the more accurate and the one more commonly held before the Bull of the most excellent and most esteemed Pope Gregory xvi, in which it is expressly warned that, ‘it is not permissible for secular judges to take anyone out of a church without the Bishop’s permission, even when permission has been granted on other occasions, unless perhaps the Bishop refuses to 79

Francisco Suárez (1548–1617) was one of the eminent Jesuits, along with Roberto Bellarmino, Juan Maldonado, Luis de Molina, Gabriel Vasquez, and Del Río himself, criticised by the Dominican, Tommaso Malvenda, as Del Río points out in his Apologia attached to Book 1 of the Disquisitiones.

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forte Episcopus talem licentiam dare recusaverit, et tunc reos sic extractos debere ad carceres Ecclesiasticos conduci, ut illic detineantur, donec per Episcopum, vel ab eo deputatum, cognitum fuerit, an crimen sit tale, ut gaudere non debeant immunitate Ecclesiastica.” Ubi tamen haec bulla non obligaret, ibi posset extrahi casu dicto, sed modeste et cavendo tumultum et offensionem personarum Ecclesiasticarum, et dummodo postea, comperto quod non debuerint extrahi, statim Ecclesiae restituantur, et in iisdem locis, valebit ius praeventionis in eo, ut si reus nondum sit extractus, ad Ecclesiasticum iudicem, si iam sit extractus, ad saecularem pertineat iudicare, num immunitate gaudere debuerit, necne. Indebite carcerati, malefici, etiamsi carcerem effregerint, propter talem fugam nec puniendi erunt, neque pro confessis habendi, neque ad carcerem redire tenentur, etiam si redire iuraverint, neque tenebuntur ad poenam conventionalem ipsi vel fideiussores, si quos dederunt, neque ad torturam propter huiusmodi fugam rapi possunt (ut possent si carcer fuisset iustus), etiam si animo non revertendi fugissent. Sed an in foro conscientiae peccet fugiens ex iusto carcere, quaestio est difficilis, neque hic tractanda. Peccare censet Farinac., n. 90, cum Covarr., sed non peccare censuit Maior, et Felin. cum antiquis aliquot Canonistis, et ex recentioribus Lopezius, Instruct., cap 66, immo et teneri fugere, si tuto possit voluit | Victor. Relect. de homic. Breviter nihil hic peculiare est, quoad sortiarias, ideo de hac quaestione in genere tam pro sor-

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give his permission. Under those circumstances, the accused persons should be removed and taken to church prisons so that they can be detained there until the Bishop, or someone deputed by him, has determined whether the crime is of such a kind that they ought not to enjoy the Church’s protection.’ But in those places where the Bull’s writ does not run, he could be removed in the said case, but discreetly, avoiding disturbance and giving offence to ecclesiastics, and provided that afterwards, should it be found that they ought not to have been removed, they be restored to the Church at once. In these places, too, the right of interventionary action will prevail to the extent that if the accused has not yet been removed, he has the right to appear before a Church judge, and if he has been removed already, before a secular judge, [to determine] whether he should enjoy sanctuary or not. Even if those workers of harmful magic who have been imprisoned without just cause break out of prison, they should not be punished for escaping this way, should not be considered to have confessed their guilt by doing so, and should not be obliged to return to prison, even if they have sworn to return. Neither they, nor those who have given sureties for them, (supposing they have done so), should suffer the standard punishment, and they cannot be subjected to torture because of an escape under these circumstances, (as they could be had their imprisonment been justified), even if they ran away without any intention of coming back. But whether someone who runs away from a just imprisonment commits a sin in the court of conscience is a difficult question, and is one I need not deal with here. Farinacci, (number 90), thinks he does and so does [Diego de] Covarrubias, but [John] Mair thought he does not, as did Felino [Maria Sandeo], along with several ancient canonists and López from among the more recent commentators, (Instructions, chapter 66);80 and [Francisco de] Vitoria actually thought he is obliged to run away if he can do so safely, (Reflections, reflection on murder). To be brief, there is nothing here which deals particularly with women who practise magic and divination [sortiarias], and so if you want more about this question in general in connection

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Diego de Covarrubias (1512–1577), Variarum Resolutionum ex Jure Pontificio, Regio, et Caesareo. John Mair (1467–1550) was a Scottish historian and theologian. Felino Maria Sandeo, (1444–1503), was a canon lawyer and later Bishop of Lucca. ‘Lopez’ may refer to Gregorio López, (1496–1560), who annotated a thirteenth-century legal code, publishing it under the title Seven Parts (‘Siete Partidas’) in 1555.

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tiariis, quam reliquis; si vis, lege, Covarr. Supr. Sot., ad 2.2, q. 69, ar. 4, Navarr. Manual. cap. 25, Victor. d. relect. Lopez d. cap. 66, Binf. in Enchirid. et Brunor. supr. In ipsa captivitate quaedam sunt iudici observanda; primo, ut statim perquirantur omnes areae et anguli domus accurate; num inveniantur prixides, unguenta, pulveres, et alia instrumenta maleficiorum; neque rei permitti debent iterum ingredi domum, ne capiant taciturnitatis medicamenta. Sic Petr. Gregor. lib. 13, De replib., cap. 30: superstitiosum autem est quod quidam addunt, curandum lictoribus, ut sublimes de domo tollantur, ne antequam in carcerem detrudantur, terram contingant, credo verentur isti, ne sint de genere Antaei. Libyci, cui contacta terra vires de novo sufficiebat, iuxta fabulas. Tale etiam illud, detrahere omnem illis vestem, et induere eas sola quadam interula, quae uno die neta, texta et consuta, superstitiosum non foret, sed utile eas omnibus suis vestibus spoliare, et aliis vestire, ea gratia, ne quid lateret in vestibus maleficii. Sane hae diligenter excutiendae et scrutandae. Valde etiam mihi suspectum, quod quidam graves auctores scribunt, admonendos iudices ne patiantur se a maleficis tangi super nudam iuncturam manuum et brachiorum, cur quaeso? Si ne veneno inficiant, certe possunt etiam infici aliis partibus tactis, ne fascinent? De me venenum, et partium istarum nulla erit fascinatio.

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with women who cast lots and work magic, and the rest of them, you can read Covarrubias, op.cit. 80 at 2.2, question 69, article 4; [Martín de Azpilcueta =] Navarre, Manual, chapter 25; [Francisco de] Vitoria, op.cit. ‘reflection’; [Antonio] López, op.cit. chapter 66; [Peter] Binsfeld in his Handbook [of Pastoral Theology], and Brunoro [Sole].81 The judge should observe certain things with regard to the arrest itself. First, all the floors and corners of the house should be searched thoroughly at once in case they find little boxes, ointments, powders, and other instruments used in harmful magic. The accused should not be allowed to return to the house in case they take drugs which will help them remain silent. (Pierre Grégoire, The State Book 13, chapter 30.)82 But the requirement which a number of people add—that the officers of the law should take care to lift them high up when they leave the house so that they cannot touch the ground before they are thrust into prison—is superstitious. I believe they are afraid such people may be like Antaeus of Libya, whose strength, according to legend, used to be restored by contact with the earth.83 It is similarly superstitious to remove all their clothes and dress these women only in a shift which has been spun, woven, and sewn in a single day, although it would not be superstitious but advantageous to strip them of all their garments and dress them in others in case, for example, there is some [instrument of] harmful magic concealed in their own. These women must be searched and probed with very great care, but I find it very suspicious when a number of important authors write that judges should be advised not to let workers of harmful magic touch them on their uncovered wrists or elbows. Why? If it is so that they cannot cast the evil eye on them [ fascinent] by smearing them with poison, [the judges] can certainly be infected by being touched on other parts of their body as well. Remove the poison and there will be no evil eye cast upon them ( fascinatio.)84

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Francisco de Vitoria (1483–1546) was a distinguished theologian and jurist. Binsfeld published his Enchiridion Theologiae Pastoralis in 1591, and Brunoro Sole (floruit sixteenth century) his Advice in Criminal Cases (‘Consilium Criminale’) in Frankfurt in 1575. Pierre Grégoire (c.1540–1597), a law professor, published De Republica in Lyon and Pontà-Masson in 1596, with a second edition the following year. Antaeus was a giant who forced all strangers passing through Libya to wrestle with him. Each time he was thrown, he derived fresh strength from the touch of the earth, and so proved invincible See Apollodorus, Bibliotheca 2.5.11. Like other Latin terms associated with magic, fascinatio refers to a specific magical activity, but also comes to be used more loosely, too. Here, the women practise harmful magic—they are maleficae—but are seen principally as doing so by casting the evil eye which literally transfers a poisonous substance from the women’s eyes to their victim.

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Simile est quod addunt iidem, producendas ante iudicem maleficas tergo adversas, quia putant, si iudices ante alios, maleficae advenientes adspexerint, eos fascinari visu, et fieri mitiores ac faciliores ad absolvendum, nonne hae sunt naeniae pueriles? Quid virium habet aspectus maleficae, eo quod primo vel secundo loco iudicem viderit? Deinde quomodo haec cohaerent, maleficae cognitioni iudicum addictae, statim vim maleficiorum amittunt, quod iidem asserunt auctores, et fascinant nihilominus modis praedictis an quod fascinant ante caeptam cognitionem post captivitatem, post caeptam vero cognitionem non amplius? Ostendant diversitatis huius causam, si nos credere sibi postulant. Deinde communior est rumor, statim atque incarceratae sunt nocere eas amplius non posse. Nec defuere qui sollicite causam quaerentes, tandem duas reddidere homines non Catholici. Primam quod commode illic venena sua habere non possint, quasi vero Diabolus ea nequeat adferre, et nequeant illa ab eo accipere nisi per manum commentariensis, ut illi falso supponunt. Secundam, quod libere cum suo magistello communicare non audent, et maxime metuunt, ne a iudice colloquentes deprehendantur, quasi nesciant nocturni temporis multum sibi ad hoc superesse, et nequeant occulte daemonem, etiam aliis praesentibus alloqui, surdaster credo Satan est, et eget clamoribus. Refelluntur hi ipsa experientia, nam constat a Satana illas vehementer saepe in carceribus affligi (ut de nonnullis testatus Remigius lib. 1, cap. 13); constat etiam in ipso carcere aliquando illi commisceri, et posse grandine agros laedere; cumque haec damna inferant per ipsum daemonem, solo nutu possent illi

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Likewise, when those same writers add that when female workers of harmful magic [maleficas] are brought before a judge, they should have their backs turned towards him because they think that when these women look at judges before looking at anyone else, the judges fall prey to the evil eye [ fascinari] because of their look and become more lenient and more ready to find the women not guilty.85 Isn’t this childish drivel? What power does the look of a worker of harmful magic have merely because she has looked at a judge once or twice? Secondly, how does this story hang together? (Female) workers of harmful magic who have been brought to the attention of judges immediately lose their power to work harmful magic, as these same authorities tell us. [Are they saying] that, nevertheless, these women do cast the evil eye in the ways I have mentioned, or that they really did cast it before their trial began and after their imprisonment, but that once their trial has started, they can do so no longer? Let them explain the cause of this anomaly, if they demand we believe them. Next, it is quite commonly rumoured that as soon as (female) workers of harmful magic have been imprisoned, they can no longer do any harm. There has been no lack of people who have looked carefully into the reason for this, and non-Catholics have produced the two following explanations.86 (i) (Female) workers of harmful magic cannot conveniently have their poisons in prison—as if the Devil cannot bring these to them and they cannot receive them from him except via the hand of the prison governor, as these authors wrongly suppose! (ii) They dare not communicate with their ‘Little Master’ and are extremely afraid lest the judge catch them having a conversation with him—as if they do not know he is present to them for this purpose for much of the night, and cannot speak secretly to the evil spirit, even when other people are present! I do believe Satan is rather hard of hearing and needs to be shouted at! These authors are refuted by experience itself, because it is generally agreed that these women are often serious injured by Satan while they are in prison. ([Nicolas] Rémy has given evidence to this effect about several of them in Book 1, chapter 13.) It is also generally agreed that sometimes they have sex with him in prison, and that they can damage fields with hail. (Since they do this damage by means of the Evil Spirit himself, they can give him a sign merely

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The word ‘workers of harmful magic’ now commonly appears in the text in its feminine form. This does not mean, however, that male workers of harmful magic would not be able to cast the evil eye. It means simply that Del Río is using a gender-based noun to suggest that the majority of such people who appear in court are women. According to the references given in the margin of his text, Del Río means Lambert Daneau and Johann Gödelmann.

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significare, et ipse, illis vinctis, id exsequi per sese. Anno 1597, cum Stabuletum proficiscerentur, Leodio Quaesitores, Oranus, et alii in | via plana subito currus deiectus fuit, et mirifice per medium confractus, omnibus tamen illaesis, pedibus ergo, quibus equi non aderant, reliquum iter confecerunt, cum Stabuleti in carcere invisissent Ioan. illum del Vaulx, cuius causa eo profecti fuerant; is statim illis, bene (ait) in via expalluistis, nec satis vobis omnia prospere successerunt. Et dissimulantibus illis, casum narravit, addiditque se id a suo daemone accepisse, damnum tamen ab alio quodam daemone illatum, iniussu suo, voluisse daemonem amplius nocere, sed non licuisse. Hinc causam habetis, posse per daemonem nocere, si Deus permittat; raro Deum permittere ne iustitiae executio in maleficos impediatur: Plura videte supr. lib. 3, part. 1, q. 3. Utilior ergo est monitio ne iudices illos diu detineant in carceribus, sed vel fontes velox poena consumat, vel innoxii reperti liberentur maturius, et ut observentur, ne qua secum ferant, vel ne qua inferant alii, quibus sibi necem queant inferre, et eadem de causa, ne diu solae permittantur esse; nihil enim Diabolus diligentius conatur, quam ad mortis consilium illas inducere. Sed cur eas carceribus non eripit? Grilland., q. 9, scribit quosdam iudices saepe expertos an solita inunctione Magi capti per daemonem efferrentur, et nullum umquam sortilegia tum effectum sortita. Unde multos tenuisse, quod captae a daemone eripi non possint, et rationes reddit duas, primam quia Diabolus mavult illas in professione sua statim mori. Secundo, quia Deus non permittit daemones exercere potentiam suam, ne id fiat in scandalum ipsorum iudicum, et Dei ignominiam. Nam videretur plus posse Diabolus in suis ministris strigibus, quam Deus in suis, qui sunt Iudices, quae ratio posterior est D. Thom. Confirmatur, quia Pompeiopoli existens Inquisitor permisit cuidam Malefico

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by nodding and, because they are in chains, he carries out the task himself.) In 1597, while inquisitors, [Jean] D’Heur, and others were making their way to Stavelot from Liège, their carriage was suddenly overturned on a level stretch of road and broke in two in the most extraordinary way. No one was hurt, however, and so those who did not have horses finished the rest of the journey on foot. In the prison in Stavelot, they visited Jean del Vaulx because of whom they had made the journey. Straight away he said to them, “You turned remarkably pale on the way here. Everything didn’t go as well for you as it might have done!” They pretended they did not know what he was talking about, so he told them about the accident and added that he had heard about it from his evil spirit. Their problem, he said, had been caused by another evil spirit who had done this without his instructions. That evil spirit had wanted to do more harm, but he (Del Vaulx) had not let him do it. So here you have the explanation. An evil spirit can do harm if God gives him permission, but God rarely does give him permission, so as not to hinder the execution of justice against workers of harmful magic.87 More useful is the advice that judges should not keep these people in prison for a long time, but that punishment be carried out swiftly on prisoners if they are guilty, or that they be released at the earliest opportunity if they have been found innocent. They should also be watched in case they bring with them, (or others bring to them), anything with which they can commit suicide. For the same reason, these women88 should not be left along for a lengthy period because the Devil makes every effort to persuade them to kill themselves. But why does he not rescue them from prison? In question 9 [Paolo] Grillando writes that a number of judges have often tested whether magicians [magi] who have been arrested smear themselves with ointment, according to their usual practice, and will be carried off by an evil spirit, but he says that no one has ever managed this by taking a chance on this kind of lottery. Consequently, he says, many people have believed that the women who have been arrested cannot be snatched away by an evil spirit, and he gives two reasons for this. (i) The Devil prefers them to die at once while they are still in his service; and (ii) God does not allow evil spirits to exercise their power, so as not to cause a scandal to the judges themselves, and disgrace to God, since it would look as though the Devil has more power over his servants, the witches [strigibus] than God has over His, the judges. This second reason is that of St Thomas [Aquinas]. It is corroborated because at Pamplona there was an inquisitor who allowed a

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Maleficos. In other words, against any workers of harmful magic, male or female. Del Río reverts to feminine pronouns again.

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capto ut se inungeret, et licentiam dedit evolandi si posset, et ille statim sublatus fuit in aerem. Cum Legione in Hispania degerem legi litteras ad Doctorem quendam Canonicum datas, quibus hoc inter caetera narrabatur. Ergone hoc tunc accidit, quia cessabat ratio praedicta, nec daemon poterat videri contra iudiciariam potestatem praevaluisse? Suaderem tamen Iudicibus abstinere ab huiusmodi experientiis, in quibus plus est curiositatis, quam pietatis. Punitae morte Iudicum curiositatis ego alias ex Cumano exemplum dedi, quod idem ex Silvestro Prierate Crespetus narravit, lib. 1 De odio Satanae discur., 15. Posterior autem illa D. Thomae ratio quanti sit momenti dictum iam, lib. 3. part. 1, q. 5. sectio viii De accusatione in iudicio post incarcerationem. De hac sufficiunt iam a nobis dicta, sup. sect. 6; si quis plura volet, legat Pros. Farinac. q. 12, et 16, Clar. § fin. q. 12 cum mul. seq. sectio ix De tortura. Ad hanc iam diximus quae sufficiant indicia: sup. sect. 3 et sect. 4. Nunc videndum nobis qualis esse debeat, quando iteranda, decernendave, et quae hac in re superstitiosa sint vitanda. | Quoad primum, secundumque sunt enim valde commista, quae de iis dici possunt, scienda sunt sequentia. Imprimis poterit iudex instituere interrogationes ad formulam illam a Grillando traditam:

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(male) worker of harmful magic whom he had arrested to anoint himself, and gave him permission to fly, if he could; and straight away the man was lifted up into the air. (While I was living in León in Spain, I read the story in a letter which contained much else and had been given to a Doctor of Canon Law.)89 So, did this happen because the [second] reason was ceasing to be true, and the evil spirit was able to give the appearance of having prevailed over the power of the court? I should urge judges to abstain from this kind of experiment in which there is more inquisitiveness than religious devotion. I have given elsewhere an example, which I took from Bernardo da Como, of judges’ inquisitiveness being punished with death. ([Pierre] Crespet, relying on Silvestro da Prierio,90 has told the same story in his Satan’s Hatred Book 1, discourse 15, but I have already said earlier, (in Book 3, part 1, question 5), how important is the second reason given by St Thomas [Aquinas]). Section 8 Accusation in court after imprisonment I have said enough about this earlier in section 6. If anyone wants more, he can read Prospero Farinacci, questions 12 and 16, and [Giulio] Claro in the final paragraph of question 12, along with much of what follows that. Section 9 Torture I have already addressed the question, what pieces of circumstantial evidence are sufficient to warrant this, (above, sections 3 and 4)? Now I have to examine what kind of person should be liable to torture, when torture should be repeated and decided upon, and what superstitions need to be avoided in connection with this. In the case of the first of these, there are all kinds of things which can be said. The following are worthy paying attention to. First, a judge will be able to institute inquiries according to the form proposed by [Paolo] Grillando.

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Del Río studied at the Jesuit college in León between 1581 and 1584. Silvestro da Prierio (c.1456/1457–c.1527) was a Dominican who wrote more than one treatise on magicians, the best-known being The Marvels of Witch-Magicians and Evil Spirits (‘De Strigimagarum Daemonumque Mirandis’), published in 1521.

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“Quid sit illa professio quam faciunt cum daemone, et quibus modo ad ordine ad illam accedant, et quibus caerimoniis et solemnitatibus in ea utantur? Ad quid se obligent daemoni? Sub qua forma verborum fiat ipsa obligatio? Quae sint ab eis servanda et ad quae teneantur? Quae praemia habeant et quae habere sperent ab earum Principe Daemone? Ex quibus rebus simplicibus vel mixtis componant unguenta, quibus liniant corpora sua dum vadunt ad ludos? Cum quibus etiam rebus faciant alia venefica maleficia? Quem ordinem teneant, quando accessurae sunt ad ludos praedictis? Sitne verum quod vadant corporaliter, vel illa sit illusio sive visio quaedam in apparentia, in mente et intellectu? Casu quo accedunt corporaliter, an ambulent pedibus propriis, vel aliter deferantur, et quomodo, et per quem? Item quomodo et qualiter celebrent sacrificia, offerant preces et munera daemon? Item quae sint illis in praecipua observantia in dicta professione?” Et alia huiusmodi quae iudici ex praecedenti inquisitione, vel denunciatione videbuntur exquirenda; postea poterit interrogare de singulis, num haec, et quando, et cum quibus, etc. fecerint? In his utile erit a levioribus, quae facilius confitentur, ad graviora progredi, ideoque ultimo demum loco de copula cum daemone interrogare (Sprenger., part. 3 Mallei, qq. 14 et 15). Abstinendum iudici tormentis, si possit abstinendo veritas haberi: quaestio, enim, res fragilis est, et periculosa, et quae saepe veritatem fallit, saepe fit ut innocens pro incerto scelere certissimas luat poenas, frequenter tamen cogitur iudex quaestionem adhibere,

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‘What is the profession they make to an evil spirit? In what way do they come to make that [profession], and what social ranking do they observe while doing so? What ceremonies and rituals do they employ during it? What do they bind themselves to do for the evil spirit? Under what form of words is the obligation itself made? What must they pay attention to, and what are they obligated to do? What rewards do they have and what do these women hope to get from their prince, the evil spirit? From what things, compounds and noncompounds, do they make the ointments they smear on their bodies when they go to their assemblies?91 With what kind of thing do they make other poisonous instruments of harmful magic? What kind of social ranking do these women observe when they are about to go to the foresaid assemblies? Is it true they go there physically, or is it some kind of illusion or counterfeit vision in their mind and understanding? In the case of their going there physically, do they walk on their own two feet, or are they taken there in some other way, and if so, how and by whom? Likewise, how and in what fashion do they offer sacrifices, say prayers, and make offerings to the evil spirit? Likewise, what are the particular tokens of respect they show while making their said profession?’92 There are also other things of this kind arising from the judge’s preceding investigation, or from the accusation, which it will be clear he must investigate. After this, he will be able to ask questions about specific details: did they do this? When? With whom? etc., and in these it will be useful to progress from the less important things, which they confess quite readily, to things which are more serious, and therefore at the very end to ask about their copulation with the evil spirit. ([Jakob] Sprenger, Hammer Part 3, questions 14 and 15.)93 A judge should refrain from ordering torture if it is possible to get hold of the truth without doing so because, ‘examination by torture is something which is hazardous, can easily fall apart, and very often fails [to discover] the truth.’ It frequently happens that ‘an innocent person pays very particular penalties for a crime it is not certain he committed.’ Often, however, the judge is forced to

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Ad ludos, literally, ‘to their games’ or ‘to their schools’. The former may be derived from the notion of ludi as private diversions, or public entertainments centred upon killing in the arena, or stage-plays; the second, from that of ludus as a place of exercise or a school for rudimentary education. Grillando, De Sortilegiis, Question 7, section 17, (not ‘7’ as in the margin of Del Río’s text). More often than not, Del Río attributes the Malleus Maleficarum to Sprenger alone, although he is aware of Heinrich Institoris as author as well. The question of single or double authorship is one which is still debated. See, for example, W. Behringer, G. Jerouschek, and W. Tschacher (eds.), Der Hexenhammer: Malleus Maleficarum, München: Deutscher Taschenbuch Verlag 2000, pp. 31–37, and C.S. Mackay (ed. and trans.), Malleus Maleficarum, Vol. 1, (Cambridge: Cambridge University Press 2006), pp. 103–121.

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cum qui se negant crimine quo accusantur teneri, torquentur, ut facinoris veritas, quae indice voce non promitur, dolore corporis exprimatur, teste B. Cipriano, et est Theolog. sententia communis. Torturae modus iudicis arbitrio committitur, sed debet illud moderari prudentia et aequitate, primo ut praecedant indicia sufficiencia, de quibus egimus Sectione 1. 2., ut constet prius de corpore delicti, quod ibidem probavimus. Tertio, ut reo sit data indiciorum copia, et precessus contra ipsum iam formati, et tempus ad se defendendum sufficiens. Quarto, ut reus nec sit confessus, nec convictus. Quinto, ut per interlocutoriam reum iam damnarit ad quaestionem, expressis in sententia causis, cur, et reus non appellarit, aut frivole et calumniose appellarit. Appellationi enim non frivolae aut calumniosae deferendum est, adeo ut contra eam tortus et confessus nequeat condemnari. Si constet iudici frivolam vel calumniosam esse, potest eam contemnare; poterit autem credere talem esse, quando in processu erunt indicia legitima ad torquendum, quae reus in termino sibi concesso non sufficienter expurgavit. Si de hac re iudex dubitaret, omnino deberet appellationi deferre, et a tortura supersedere. Sexto, debet iudex postquam reus cibum vel potum sumpsit, propter periculum vomitus, ut minimum quinque vel sex horis, a quaestione abstinere. Septimo, debet pro gravitate delicti, certitudine indiciorum, et qualitate personarum, etiam qualitatem et gravitatem tormentorum remittere vel acuere. Modus autem et gradus torturae recte proponit Farinacius; debet etiam iudex, licet istud delictum sit atrocissimum, eum modum et diuturnitatem quaestionis | in eo servare, ut corpus rei maneat vel illaesum, vel modice laesum, salvum innocentiae vel supplicio; illaesum dico, quod ad carnis lacerationem, aut ossium vel nervorum fracturam, nam quoad discompaginationem, sive disiunctionem iuncturarum et ossium non immoderatam, vix in tormentis ea potest evitari. Hic merito cunctis sequenda foret (extra tormentum in somniae) Paulli iii bulla lviii, quae vetat reum in tortura ultra horae spacium detineri. Debet

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apply torture, ‘since those who say they are not guilty of the crime of which they are accused are tortured so that the truth of the offence which is not produced by what an informer has said can be expressed via physical pain.’ (This is what St Cyprian says,94 and is the opinion commonly held by theologians.) The method of torture is left to the judge’s decision, (although he ought to temper it with common sense and fairness), (i) when there are sufficient preceding pieces of circumstantial evidence, (I dealt with these in section 1); (ii) when there is prior agreement about the factual evidence relating to the offence, (I examined this is in the same section); (iii) when a great deal of the circumstantial evidence and the grounds for the legal proceeding which has been prepared against him already has been given to the accused, and there is enough time for him to defend himself; (iv) when the accused has not confessed or been found guilty; (v) when, via a formal statement which explains the reasons for his decision, the judge has sentenced the accused to be tortured, and the accused does not appeal against it, or makes a frivolous, misleading appeal. (One should grant an appeal which is not frivolous or misleading, so much so that someone who has been tortured and has confessed cannot be convicted of anything which says the opposite.) If it is clear to the judge that the appeal is frivolous and misleading, he can ignore it, and he will be able to believe it is frivolous or misleading when, during the course of legal proceedings, there is legitimate circumstantial evidence for having [the accused] tortured and the accused has not satisfactorily cleared himself in the time allowed him. If the judge were to have any doubts about this, he should grant the appeal and refrain altogether from having him tortured. (vi) After the accused has taken food or drink, the judge ought to refrain for at least five or six hours from having him tortured because of the danger of his vomiting. (vii) He should also lessen or increase the nature and severity of the torture in accordance with the seriousness of the offence, the reliability of the circumstantial evidence, and the social standing of the people involved. (Farinacci correctly sets out the methods and stages of torture.) Even when the offence is very serious, the judge ought to pay attention to the method and length of the torture in the case, so that the body of the accused either remains uninjured or only moderately injured, (save in the case of his being innocent.) I say ‘uninjured’ by the torture, meaning tearing the flesh or breaking bones or sinews because, when it comes to disjuncture, it is scarcely possible to avoid pulling apart joints and bones rather a lot during torture. On this point, it would be a good idea for everyone to follow the Bull of Paul iii which forbids torturing an accused for longer

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Ad Demetrianum 13.

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etiam iudex abstinere novis, et in sua provincia inusitatis torquendi modis; sed utatur solitis in hoc crimine, ut tormento funis, tenuioris et affusione aquae frigidae in tergum appensi, vel etiam additis ad pedes ponderibus, vel ut baculo inter pedes inserto nequeat iungere; vel tormento vigiliae omnium optimo et tutissimo, quando non additur simul membrorum extensio, hoc optime nobis descripserunt Flamin. Cartar. et Farinac. et eo potissimum utendum quoad mulieres, maxime honestiores, ut sunt moniales, etc. haec in inferenda quavis tortura. Quoad iterationem quaestionis, servandum primo, ne umquam etiam urgentissimis indiciis supervenientibus, reus torqueatur ultra tertiam vicem, etiamsi varius sit in confessione; quod si semper constanter negaverit, non posset ultra duas vices torqueri, licet contrarium servetur in praxi; secundo, non est repetenda eodem die quaestio, sed unus saltem dies inter singulas est interiiciendus, ut terror ille et dolor resideat; tertio, numquam est iteranda, nisi superveniant indicia nova, et diversi generis, et prioribus evidentiora, et nisi reus sit adeo fortis ac robustus, ut animo et corpore in priore tortura perduraverit; item nisi priores torturae nimis lenes et insufficientes fuerint, quod diiudicare pendet a iudicis arbitrio, quarto, si reus in tormentis confessus, sequenti die non vult ad bancum (quod aiunt) confessionem suam ratificare extra torturam, dicatque se dolore tormentorum falsa fuisse confessum, poterit absque novis indiciis de novo subdi quaestioni, ut perseveret. Si tunc reus in secunda quaestione pergit negare, primam confessionem expurgat, et est dimittendus, nec poterit tertio torqueri, nisi tamen prima tortura fuisset insufficiens et indicia valde urgerent, tunc ad tertiam posset deveniri. Quod si in tertia adhuc negat, omnino dimittatur, si in tertia sicut in prima iterum confitetur, et post

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than an hour, except in the case where the torture consists of his being prevented from sleeping.95 The judge should also refrain from having the accused tortured in novel ways which are not usually employed in the district for which he is responsible. When it comes to this crime, he should make use of customary methods, such as torture with a very thin rope; pouring cold water on to his back while he is suspended, or adding weights to his feet, or inserting a stick between his feet so that he cannot bring them together; or—the best and safest of them all—the torture of being kept awake, since no parts of the body are being stretched at the same time as well. (Flaminio Cartari and Farinacci have given us very good descriptions of this,96 and it should be used especially in the case of women, particularly the more respectable of them, such as nuns, etc.) These [methods] can be used whenever any kind of torture has to be applied. As for repeating the torture, one should bear in mind that (a) even when very pressing pieces of circumstantial evidence turn up, the accused must never be tortured more than three times, even if he is inconsistent in his confession, because if he always kept on denying [his guilt], he could not be tortured more than twice, (although the contrary is done in practice.) (b) Torture must not be repeated on the same day. At least one day should intervene between individual sessions so that the terror and pain of it can stay with him. (c) It should never be repeated unless new pieces of circumstantial evidence, different in kind and clearer than the earlier ones, turn up, and unless the accused is so robust and strong that he has survived the previous torture mentally and physically; likewise, unless the previous torture was too light and was insufficient. The decision about this rests with the judge. (d) If the accused has confessed under torture and the following day is unwilling to ratify his confession ‘before the bench’, (as they say), outwith torture, and says he made a false confession because of the pain of the torture, [the judge] will be able to submit him to torture once again without fresh circumstantial evidence, so that he can continue [in what he has to say]. If the accused then proceeds to deny [his guilt] during this second session of torture, he clears himself of his first confession and cannot be tortured a third time, unless the first torture session was inadequate and the circumstantial evidence is particularly pressing. Under those circumstances, he could be sent for a third session. If, however, he continues to deny his guilt during the third session, he must undoubtedly be released. If he con-

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Del Río refers the reader to Bull 58 in part 1 of the Bullarium Magnum, a collection of Papal Bulls published in 1586. Flaminio Cartari, (1531–1593), was a jurist from Orvieto and published his Four Books on the Theory and Practice of Interrogating Accused Persons, cited by Del Río, in Venice in 1590.

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torturam ratificet quaestionem omnino est puniendus; si tertia in tortura iterum confitetur, sed post torturam negat, non poterit quarto torqueri, sed est absolvendus, quia cuncta indicia priora purgavit, et ultimum istud solum ad quaestionem non sufficit, estque tandem finis aliquis quaestionibus imponendus. Sic Simanc. sup. n. 43 et alii illi sup. citati. et praeterea Boss. Blanc. Carer. et Farinac. eos sequens sup. n. 99 et 105; vide Marsil. in Repetitione lib. reperi. D. de quaestion.: Et quod tunc simpliciter et absolute sit dimittendus liber volunt Eymeri, in 3, part. director. et Pegna d. comm. 31, Anton. Gomez d. cap. 13, n. 28, solvens argumenta contraria. Damhaud. in Prax. crim., cap. 40, et alii apud Binsfeld. lib. 7 De malef. C. q. 1, conclus. 16. Estque non illepidum quod narrat Marsil. habuisset se Mediolani quendam insignem nebulonem, qui in tortura fatebatur, et in auditorio post torturam cuncta iterum negabat; tandem rogatus quare sic faceret, renidens respondit, quia melius iudico millies torqueri in brachiis, quam | semel in gula. Quare? Quia multos reperias chirurgos, qui norint sua in loca reponere et coaptare ossa brachiorum, nec unum invenias, qui norit reaptare gulam, et similibus sibi illudentem Hippol. Mars. coactus fuit liberum dimittere. Porro qui dimittendus, eum censeo dimittendum absolute et simpliciter, sine fideiussoribus, idque ex receptiore sententia, neque causam indecisam relinquendam. Si tamen indicia non forent per reum sufficienter purgata, vel etiamsi verisimiliter exspectarentur indicia nova et clariora praecedentibus,

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fesses again during the third session as he did in the first, and ratifies it while he is being tortured, he should certainly be punished. If he confesses again during the third torture-session, but takes it back after torture, he cannot be tortured a fourth time but must be acquitted, because he has cleared himself of all the earlier circumstantial evidence. This last [piece of evidence] alone is not sufficient to warrant his being tortured and an end must be made at last of torturesessions. (This is what [Diego de] Simancas says, supra number 43, as do the other [authorities] cited there, especially [Egidio] Bossi, [Marco Antonio] Bianchi, [Lodovico] Careri, and Farinacci who follows them, supra numbers 99 and 105. See Marsili in his discourse on torture, reading D. That [the accused] should then be simply and entirely released as a free man is said by [Nicolas] Eymeric in the third part of his Guide, and [Francisco] Peña’s commentary, no. 31. [Luis] Gomez resolves the arguments against this, [Commentaries], chapter 13, number 28. [Joost] Damhouder in his Practice in Criminal Trials, chapter 40, and others cited by Binsfeld, Confessions of Workers of Harmful Magic Book 7, question 1, conclusion 16.)97 Marsili tells a not unamusing story. In Milan he had a well-known scoundrel who would confess during torture and then deny everything during the hearing after the torture-session. In the end he was asked why he kept doing this and, beaming with pleasure, replied, ‘I think it’s better to have torture inflicted a thousand times on my arms than once on my throat.’ ‘Why?’ ‘Because you can find a good many surgeons who know how to put bones back in place and join them together again, but you can’t find one who knows how to fit the throat back together’; and Ippolito Marsili was forced to set him free while he continued to make fun of him in similar ways. When it comes to someone who should be released, I certainly think he should be released simply, without reservation, and without sureties, and that this should be done because it is the more usually accepted opinion, and because the case should not be left undecided. But if the accused has not adequately cleared himself of the circumstantial evidence, or even if it is likely that new pieces of evidence, clearer than the earlier ones, were expected to

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Ippolito Marsili discussed various methods of torture in his Tractatus de Quaestionibus which was published in 1524. Nicolas Eymeric, (c.1320–1399), Dominican Inquisitor General of Aragon. His discussion of magic and other occult practices occurs largely in part 2. His Directorium was published in 1578 with an extensive commentary by Francisco Peña. Joost Damhouder, (1507–1581), was a Flemish jurist. His Praxis Rerum Criminalium was first published in Louvain in 1554 and rapidly became an authoritative text, reprinted and translated many times.

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tunc ex multarum Cariarum praxi posset reus dimitti data fideiussione de se repraesentando, cum iterum a iudice accersetur; et tunc, cum ista indicia nova supervenerint, reus iterum examinatur, haec dimissio tunc non est absoluta, sed stantibus tantum rebus, prout tunc se habebant: ut bene post Boer. et Caravita Clarus q. 62, et Damhaut. sup. Praxis vero illa quam Sprengerus ponit, part. 3, Mallei, q. 14, ut damnetur non ad torturam iterandam, sed ad eandem alio die continuandam, et hoc posse fieri non ortis novis iudiciis, mihi callidior, quam verior; et crudelior, quam aequior videtur. Nec enim decet huiusmodi verborum captiunculis saevitiam intendere, quid prodest vocare continuationem, quae revera est iteriatio? Quam durum etiam est, per continuatos dies quaestionem exercere? Absint a piis iudicibus huiuscemodi commenta. Quod dixi, secunda vel tertia vice iterari tormenta posse, id procedit quando reus dumtaxat causatur dolore quaestionis se victum fuisset, sed si contenderet erroneam fuisse confessionem, et se paratum probare suum errorem, et adsint aliqua indicia pro revocatione facientia, tunc non posset iterum subiici quaestioni, sed deberet ei spacium tribui probandi erroris, et interea latius haberi, et admitti ad eum advocati ac procuratores, ut possit cum iis conferre. Haec de reo non convicto. Caeterum si reus sit convictus, consultius est iudici non subiicere eum quaestioni, quia tortura solet indicia praecedentia purgare, immo et plenas probationes; et ideo reus etiam convictus in tortura, et post eam constanter persistens, foret liberandus, ut ex communi dd. sententia docet Farinac. Et licet multi gravissimi iuris interpp. existiment, adhuc huiusmodi posse condemnari, et sic Parisiensis Curia, teste Paponio, aliquoties iudicarit; contrarium tamen, quod dixi, communius et verius esse, cum Cartario censuit Farinac. saltem

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turn up, under those circumstances, according to the practice of many courts, the accused could be released after providing surety that he would re-appear when summoned again by the judge; and under those circumstances, when these new pieces of evidence do turn up, the accused can be examined again. So, under those circumstances, the release has not been absolute, but only conditional as things stood and as they were for the time being. ([Giulio] Claro puts this well in question 62, following [Nicolas] Bohier and [Prospero] Caravita, and [Joost] Damhouder supra.)98 But the practice which [Jakob] Sprenger proposes in Hammer Part 3, question 14, that he should be sentenced, not to a repetition of the torture, but to a continuation of it on another day, and that this can be done even though new pieces of evidence have not made an appearance, strikes me as being more adroit than proper, and more cruel than fair, because it is not decent to inflict savagery by means of this kind of verbal sophistry. What is the good of calling it a ‘continuation’ when in fact it is a repetition? How harsh it is, too, to use torture over successive days! God keep devout judges from fabrications of this sort! I did say that torture can be repeated a second and a third time. This happens when the accused simply pleads that he had been overcome by the pain of the torture. But if he were to maintain that his confession contained a mistake and that he was prepared to prove his mistake, and there is some evidence in favour of its being corrected, under those circumstances he could not be subjected to torture again, but ought to be given time to prove his mistake. Meanwhile he should have more liberty, and advocates and defence counsel be admitted to him so that he can confer with them. This applies to an accused who has not been found guilty. If, however, the accused has been found guilty, the judge will do well not to subject him to torture because torture usually clears him of the earlier evidence and, indeed, the complete proofs [of his guilt], and therefore even an accused who has been shown to be guilty while under torture, and afterwards steadily persists [in what he has said], must be set free, as Farinacci, following the common opinion of scholars, tells us. Although many very important interpreters of the law think someone like this can still be sentenced, and the High Court of Paris, as [Jean] Papon testifies,99 has given this judgement on several occasions, the opposite, as I said, is the more common and more accurate [opinion]. As far as the usual fixed penalty is concerned, at any rate, Farinacci

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Prospero Caravita, (died 1580), qualified in both canon and civil law, published a commentary on the procedures of the Vicarial Court of the Kingdom of Naples in 1557. Jean Papon, (1505–1590), was a notable jurist and at one time Master of Requests to Catherine de Médicis.

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quoad poenam ordinariam, ut ea infligi non possit; extraordinariam non corporalem fatetur infligi posse, quando convictus tantum fuit praesumptionibus urgentissimis, quod si convictus fuerit plenis probationibus, tunc posse infligi poenam corporalem extraord. etiam triremium. Sunt tamen aliqui casus, quibus tortura reum convictum non eriperet punitioni ordinariae. Primo, si non detur super delicto, de quo quis fuit confessus, vel convictus; sed ad notitiam aliorum delictorum. Secundo, quando datur tantum pro habenda ulteriore veritate qualitatum aggravantium. Tertio, quando irrogator ad habendos complices, fautores, receptatores, et alios participes. Quarto, si iudex decernit eam cum protestatione, id se facere sine praeiudicio probatorum, et revera haec protestatio non appareat contraria facto, ut appareret, si reus interrogaretur super principali delicto, etiam oretenus et non scribente notario. Sed utrum iudex possit | reum testibus plene convictum torquere? Nav. in Man., cap. 18, n. 59, respondet iudicem qui hoc facit ad impediendam rei appellationem, peccare Mortal. nisi constet calumniosam ac frivolam fore appellationem. In illis locis ubi necessaria est rei confessio, non habet locum Navarr. sententia, ubi non est necessaria, procedit quoad tormenta ad hoc instituta, ut delictum illud, de quo convictus est, fateatur; non quoad complices nominandos, aut circumstantias delictum aggravantes, de quibus non est plene convictus. Quoad personas torquendas crimen istud est exceptum, ideo privilegio suo omnes spoliantur, diversimode tamen. Nam qui sunt privilegiati ratione dignitatis vel ordinis; illi plane spoliantur, etiam clerici et monachi etiam non infamati; mitius tamen sunt torquendi isti, quam alii ut docet Simancas. Quoad eos qui sunt excepti ratione aetatis, puto si sint minores annis xiv, tantum esse

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thought, (as did Flaminio Cartari.)100 that, it cannot be inflicted. He maintains that a non-physical punishment which is left to the judge’s discretion can be inflicted when the person has been found guilty, only upon the most pressing presumptions. If he has been found guilty by full proofs, a physical punishment dependent on the judge’s decision can be inflicted on him, even that of [being sent to] the galleys. There are, however, some cases in which an accused who has been found guilty as a result of being tortured could not escape the ordinary fixed penalty. (1) If it is not given in respect of the offence of which someone has been found guilty or to which he has confessed, but because it is known he has committed other offences. (2) When it is given simply in order to get a more accurate idea of the circumstances which are making things worse. (3) When it is inflicted in order to find out the names of accomplices, patrons, those who gave him shelter, and other participants. (4) If the judge comes to a decision and declares that he is doing this without prejudice to what has been proved, and this declaration does not actually appear to run contrary to fact, with the result that if the accused were interrogated about the principal offence, it would clearly agree with what he was saying and not what was written by the clerk of the court. But can the judge torture an accused who has clearly been convicted by what the witnesses have said? The answer of Navarre, in his Manual, chapter 18, number 59, is that a judge who does this in order to impede an appeal by the accused is committing a mortal sin unless it is agreed that the appeal will be misleading and frivolous. In those places in which a confession by the accused is necessary, Navarre’s opinion has no place. In those places in which it is not necessary, one proceeds in accordance with the torture which has been instituted for this purpose—not to get the accused to name accomplices or circumstances which worsen the offence of which he has clearly not been found guilty, but so that he may confess the offence of which he has been found guilty. In the case of persons who are to be tortured, this crime is one which falls outwith the normal legal rules and therefore they are all stripped of their exemption [from being tortured], but in different ways. Those who have been exempt by reason of their official position or rank are clearly stripped of it, even clerics and monks, and even those who do not have a bad reputation. However, as [Diego de] Simancas tells us, these people should be tortured more lightly than others. In the case of those who are exempt because of their age—namely, those below the age of fourteen—they should simply be frightened and given

100

Flaminio Cartari, (1531–1593), published his Practice and Theory of Interrogating those who have been Accused in 1590.

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terrendos, etiam terrore reali, ut nudando, ligando, et ad eculeum adducendo, non tamen imponendo. Si minores tantum viginti quinque annis ingressi saltem decimum quartum, torquendi, sed mitius, quam maiores; senes vero, pro cuiusque viribus minus tamen acriter, quam viri. Idem de caeteris privilegiatis ratione debilitatis, qui torqueri poterunt moderatius, dummodo absit mortis omne periculum; excipiendae semper praegnantes, favore partus, donec pepererint, et periculum illud evaserint; quoad alias mulieres, nihil peculiare est, nisi quod honestatis, quam in viris, adhuc maior habenda ratio, maxime si virgines, aut sanctimoniales sint. Quoad tertium dubium, sciendum multos maleficos contumacissime tormenta perferre, munitos (ut ipsi vocant) remedio sive maleficio Taciturnitatis, quod maleficium tradunt componi ex corde, vel aliis membris infantuli non baptizati, violenter necati, et in pulverem redacti, quibus cineribus corpori inspersis, vel occultatis, silentii hanc vim consequantur. Certum est in tormentis multos hoc silentium retinere, ut scriptores plerique testantur, et quotidiana narrat experientia. Fit autem hoc artificio Diaboli multis modis, quorum quosdam observat Binsfeld. Etenim multiplex est causa huius silentii, vel enim tacent quia dolorem non sentiunt, vel quia loqui non possunt; etiam si sentiant, vel quia nec sentiunt, nec loqui possunt, ut quando profundo somno opprimuntur (somnum hunc concliat daemon caussis mere naturalibus, ut medicamentis soporiferis et similibus), vel sane quia licet sentiant et loqui possint, robusti tamen atque fortes omnia tolerant, et obstinato animo cruciatum interrogationesque omnes contemnunt. Ut non sentiant, solet daemon efficere per quaedam naturalem vim obstupefaciendi sensus habentia, quibus fit ut vel dolorem non sentiant, vel lenior et tolerabilior dolor videatur, de qua re actum superius lib. 2, q. 21. Aliquando pondera appensa ipse levat, et corpus ipsum sublevat, funes quoque quibus ligati et extensi laxat, aliquando vero ea quae corpori infligi, vel infundi videntur; ipse alio avertit, aut vim eorum priusquam corpus contingant tollit, aut aliquid medium densum et solidum; quod simul facit ne abstantibus sit conspicuum, interponit. Aliquando denique corpus ipsum malefici ex eculeo tollit, et aliud subsituit, quae cuncta cum

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a real fright such as being stripped naked, tied up, and brought to the rack, but not put on it. If they are under the age of twenty-five but aged at least fourteen, they should be tortured, but more lightly than those who are older; and old people should be tortured, too, but less harshly than [mature] men, in accordance with each person’s strength. The same applies in the case of everyone else who has been exempt because of weakness. They can be tortured fairly moderately, as long as there is no danger at all of their dying. Pregnant women are always exempt for the sake of the unborn child, until they have given birth and have escaped the danger inherent in that. In the case of other women, there is no difference between them and men except for the question of their respectability—a rather important reason under the circumstances, especially if they are virgins or nuns. As far as a third doubt is concerned, one needs to be aware that many workers of harmful magic endure their tortures in a most obdurate fashion, fortified with what they themselves call a ‘remedy’, or a ‘malefice of keeping silent’. They say this malefice is composed of the powdered heart or other body parts of an unbaptised infant who has been killed in a violent way. They sprinkle these ashes, or conceal them on their person and acquire this power of keeping silent. It is a fact that many of them do remain silent during their torments, as a very large number of writers testify and as everyday experience tells us, but they do so because of this cunning device of the Devil, which works in many ways. ([Peter] Binsfeld notes a number of them.) There are several things which cause this silence. Either these people are silent because they do not feel the pain, or because they are unable to speak even if they do feel it, or because they can neither feel the pain nor speak—as when they are overcome by a very deep sleep: the evil spirit procures this sleep by means which are entirely natural, such as soporific drugs and the like—or because, in spite of the fact that they do feel the pain and are able to speak, they are sturdy and strong enough to tolerate everything and obstinately defy the torture and all their interrogations. The evil spirit usually makes them unable to feel the pain by making use of certain things which have a natural power to stupefy the senses, and these things enable them either not to feel the pain, or to make it seem quite light and quite bearable. (I have dealt with this already in Book 2, question 21.) Sometimes he lifts the weights which have been attached to them and holds up their body. He also loosens the ropes with which they have been bound and stretched, but sometimes he uses another object to turn aside the things which appear to be inflicting the pain or pouring liquid on the body, or he puts something fairly thick and solid between them, making sure this is not obvious to the bystanders. Sometimes he removes the actual body of the worker of harmful magic from the rack and replaces it with something else. As long as God gives His per-

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Deus permittit, illi facillima sunt, rarius tamen hanc super | positionem corporis alterius contingere puto, frequentius aversionem illam sive depulsionem, item interpositionem (quam dixi.). Et vel vehementer fallor, vel plane id factum id Lycanthropo illo Westphalico annis superioribus, de quo, ut, ex ore, Sereniss. Electoris Ernesti, Bavariae Ducis, Carolus Billheus, Vir Clar., mihi narravit, ista ferebantur: homines vicies (en, iudicum clemens arbitrium, quo se porrigat in illis partibus Aquilonaribus) saevae quaestioni subditum, nihil fassum, sed renidenti ridentique similem cuncta supplicia pertulisse, tandem carnificem reo poculum quoddam medicatum praeparasse; et ipsum quidem purum putum vinum propinasse, bibisseque, reo vero exhibuisse potionem illam alteram, sic imposuisse, ecce tibi confestim reum omnia sua facinora narrantem; et inter caetera, lustrorum aliquot Lycanthropiam, et quae tum plurima perpetrarat; quaerentibus unde haec tam subita mutatio, respondit pactum secum daemone, eumque sibi pollicitum, hanc indolentiam cum taciturnitate in tormentis, et omnia supplicia, quae carnifex ipsi infligeret, in se illum suscepturum (hoc scilicet, ut dixi, adversionis, et interpositionis modo, stultus enim sit qui existimet ipsum antoprosopos daemonem torqueri potuisse) mox vero ut illud (nescio quid) bibisset, daemonem abscessisse vel invitum, vel pacti contemptorem, ideo se nolle amplius torqueri, malle sponte profiteri. Silentium etiam solet Diabolus inducere occupatione corporea malefici, praeclusis illi interius faucibus et ore, ea moderatione, ut non praefocetur, loqui tamen non queat; interdum etiam organo auditus sic obstructo, ut iudicis voces interrogationesque non exaudiant rei, quorum omnium exempla suggerit Nicol. Remigius. Aliquando dumtaxat prope adsistit et dehortatur a confessione, adhortaturque, ut brevia haec tormenta, spe vitae praetentis longioris, et aeternae cum illo beatitatis, fortiter ferant; demum addit minas et intentat

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mission, all this is very easy for the evil spirit. However, I do not think such a switch happens very often. More frequently, in my opinion, the evil spirit distracts people’s attention, or turns it in another direction. (He does the same thing, too, by interposing an object [between them and the accused], as I said.) Either I am very much mistaken or that is clearly what happened in the case of the Westphalian werewolf some years ago, about whom people used to tell this story.101 (His Most Serene Highness, the Elector Ernst, Duke of Bavaria, described the incident to Karl Billheus who then told it to me.) The man was subjected to savage torture twenty times—now there’s a merciful decision by the judges, according to which someone in those northern climes can be racked!—yet he said nothing and bore all the tortures with something like a beaming face and a smile. Finally, the executioner prepared a drugged drink for him and one of unadulterated wine for himself. This he drank, showed the other to the accused, and made him drink it. Look what happened then! The accused immediately gave an account of all his misdeeds, among which he admitted that for several years he had been a werewolf, and that under this guise he had done all kinds of things. In answer to their asking him why there had been such a transformation in him, he said he had made a pact with an evil spirit who had promised him insensibility to pain and the ability to remain silent in the midst of torture and said he would take upon himself all the tortures the executioner might inflict. (Here is an example of distraction and interposing, as I said, because it would be silly of someone to think that the evil spirit himself could have been tortured in his own person.) However, as soon as the man had drunk the potion, whatever it was, the evil spirit vanished, either reluctantly or out of contempt for the man who had made the pact. So, said the man, he was unwilling to be tortured any more and preferred to speak of his own free will and accord. The Devil is also in the habit of inducing silence by occupying the body of the worker of harmful magic and blocking his throat and mouth from the inside, and this arrangement means that the person does not suffocate but cannot speak. Sometimes he also obstructs the organ of hearing so that the accused cannot hear what the judge is saying or the questions he is asking. (Nicolas Rémy gives examples of all these.) Sometimes, however, he stands nearby and discourages them from making a confession, urging them to bear these brief torments in the hope of a longer life in this world and one of eternal blessed101

This is a reference to the case of Peter Stumpf of Bedburg, who was tortured, tried, and executed in 1589. See further the English translation of a contemporary Dutch pamphlet in C.F. Otten (ed.), A Lycanthropy Reader: Werewolves in Western Culture, Syracuse, New York: Syracuse University Press 1986, pp. 69–76.

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saeviora, si quid promant. Denique solet illis membranulas et alia instrumenta magica, variis notata characteribus, suppeditare, quibus in locis corporis secretissimis abditis, ex pacto sensum adimit doloris. Nonnumquam etiam per alias maleficas (ut ait Sprenger supra q. 15) maleficiantur quantumcumque remotas: “Prout malefica quaedam in Ispruch se iactare solebat, quod ubi ad minus filum ex vestimontis alicuius detenti haberet, tantum efficere posset, quod quantumcumque tormentaretur, etiam usque ad mortem, nihil fateri posset.” Sed hoc totum ex pacto Diabolus faciebat. Ut his iudices obvient quid non moliuntur, multa rite, multa perperam. Sunt qui prophanam frigidam ori infundant, id si in ipsa quaestione fiat, quia cruciatum adfert, et periculosam convulsionem, pars tormenti censendum, si post quaestionem, adhuc aestuante corpore, idem arbitror? Si diu post, quid operari queat, nisi ex pacto et malefice, non intelligo; minus si ante quaestionem, ut plerique solent: cavendum ergo. Qui benedictam aquam infundunt, sive ante quaestionem, sive in quaestione, si sic directe ad veritatem promendam putant eas adigi, vereor ne superstitiosi, sin indirecte, quod obsessas credant, vel daemonem prope adsistere, et ideo piacularem hanc umdam propinant, vel inspergunt, non ausim damnare. Probem magis. Catholicis enim constat, fugando | daemoni efficacem hanc lympham: quare fortassis etiam suadendum, ut citra superstitionem circumcirca equuleum aspergatur locus; et sit in loco quaestionis usui futura aqua benedicta. Examinemus nunc quaedam hac in re a Sprengero et sociis tradita. Primum suadent reum diligenter induci verbis et rationibus, spe dubia addita, quod forte non damnabitur ad mortem si confiteatur, ut veritatem non celet, et Deo det gloriam; haec diligentia laudabilis est. Nam mediato frequens (ut aiunt) et carceris calamitas, et multiplicata informatio proborum virorum, solent disponere ad veritatem eruendam. Et a nobis (addunt) expertum est

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ness with him, and later on he adds threats and holds out the prospect of greater savagery if they disclose anything. Finally, he usually provides them with small pieces of parchment and other instruments of magic with various characters drawn on them, which they hide in the most private parts of their body, and so, in accordance with their pact, he removes their sense of pain. Sometimes, too, (as [Jakob] Sprenger says earlier in [Part 3], question 15), they are subject to harmful magic [maleficiantur] by other female witches (maleficis), no matter how far away those women may be. For example, a female worker of harmful magic in Innsbruck was in the habit of boasting that when she had no more than a thread from the clothing of someone who had been accused, she could have such an effect on him that however much he (or she) was tortured—even to the point of dying—he (or she) would be unable to confess anything. The Devil, however, was doing all this because of their pact. What do judges not try to do in order to prevent all this? Much that is religiously acceptable, much that is not. There are those who pour ordinary cold water into [the accused’s] mouth. If this is done during the actual torture session, it should be considered as part of the torture because it causes great pain and brings the danger of [the accused’s] convulsing. If it is done after the torture session while the body is still quivering, do I think the same? If it is done a long time afterwards, I do not understand what it can achieve, unless it is done on purpose to cause distress. Still less do I understand it if it is done before the torture session, as a good many people are in the habit of doing. So, one must be wary of it. If, whether before the torture session or during it, those who pour holy water think these women are driven to produce the truth straight away by this method, I am afraid they are superstitious. If they do this, thinking that it will work indirectly because they believe the women have been besieged by an evil spirit or that an evil spirit is standing near them, and this is why they are pouring or sprinkling this atoning water, I cannot be so bold as to disapprove. More than that—let me approve of it, because Catholics agree that this water is effective in putting an evil spirit to flight. Consequently, perhaps one might also say that sprinkling the area round the rack is not actually superstitious and that holy water may be of use in the torture-chamber. Let me now examine a number of points [Jakob] Sprenger and his fellows have made in connection with this subject. (1) They earnestly persuade the accused to be seduced by their words and arguments, along with the addition of a false hope that perhaps he will not be sentenced to death if he confesses, does not conceal the truth, and gives glory to God. This diligence is praiseworthy because frequent meditation, (as they say), the shock of imprisonment, and numerous pieces of advice from trustworthy men usually dispose him to produce the truth. It is also our experience,

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quod per huiusmodi informationes maleficae taliter confortatae fuerunt, ut in signum resistentiae in terram spuentes, quasi in faciem Diaboli, dicerent: faciam quod iustum erit, et consequenter crimina sua fatebantur. Secundo ut dum ministri se parant ad torquendum, alii interea exspolient reum (si sit mulier, exspolianda fuerat a mulieribus aliis, antequam ad carcerem ducatur) ne quid in vestimentis (ut iam dixi) lateat maleficii. Tertio debent capilli capitis et barbae abradi, immo et per totum corpus etiam in partibus secretioribus; si feminae sint a faeminis, si viri a viris; et sic cavebitur inhonestas et invercundia, propter quam Inquisitores Germanici Sprengerus et socii non ausi fuerunt hoc uti remedio, ut ipsimet profitentur, addentes alibi hoc in usu esse. Tamen (inquiunt) in aliis regnis inquisitores talem per totum corpus abrasuram fieri mandant. Unde et Cumanus inquisitor nobis insinuavit quod anno elapso (qui fuit 1485) 41 maleficas incinerari mandasset, omnibus per totum corpus abrasis. Et hoc in districtu et comitatu Burbiae, in confinibus Archiducis Austriae versus Mediolanum. Et hoc remedium multum prodesse, inter alios duobus exemplis lectu dignissimis, sed propter prolixitatem nunc a me omittendis, quorum ipse testis occulatus et iudex fuit, confirmat Iud. Damhauderius. In hac tonsione illud moneo observandum, si fiat dumtaxat ne maleficium lateat foraminibus corporis insertum, vel criminibus inspersum, rite id fieri; eademque de causa putarem, ne qua unctio subesset, etiam totum corpus aqua calida prius diligenter abluendum, sed si tonsio fieret ex opinione, quod per eam robur corporis et animi fortitudo pereat, exemplo Samsonis (in quo totum id divina virtute contingebat) et etiam documento Apollonii Tyanaei; putarim serio hoc esse Magicum et supertitiosum. Addunt et quartam cautelam, si investigare (inquiunt, addo verba ne quid viris magnis videar affingere) affectat, an maleficio taciturnitatis sit involuta, an lachrymare coram eo queat stando, aut tormentis exponendo. Hoc enim ipsum pro certissimo signo, ex fide dignorum antiqua relatione, ut propria experientia

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(they add), that female workers of harmful magic have been so fortified by this kind of advice that they would spit on the ground as a sign of resistance [to the Devil], as though they were spitting in his face, and tell [the truth]. Let me grant that this will be a legitimate thing to do and that, as a consequence, they would confess their crimes. (2) While the torturers are getting themselves ready, others meanwhile strip the accused—if the accused is a woman, she will have been stripped by other women before being brought to the prison—in case, (as I said), he has some kind of malefice hidden in his clothes. (3) They should have their head and beard shaved—the whole body, in fact, even the more private parts of it. If they are women, [they should be shaved] by women: if they are men, by men. This way dishonour and immodesty will be avoided. The German inquisitors, [Jakob] Sprenger and his fellows, did not venture to make use of this remedy because of the immodesty involved, as they themselves acknowledge while adding that it was in use elsewhere. Inquisitors in other territories, they say, do give instructions for the whole body to be shaved. ‘Consequently, the inquisitor from Como also told us that the previous year, (which was 1485), he had ordered forty-one female workers of harmful magic to be burned, all of whom had had their entire body shaved. This was done in the jurisdiction and county of Bormio .... within the borders of the Archduke of Austria, in the direction of Milan,’ [Hammer Part 3, question 15]. Joost Damhouder, who was an eye-witness and judge in the cases, confirms, along with two other examples which are well worth reading, that this remedy is very effective, but because his examples are very long I have omitted them here. As far as this shearing is concerned, my advice is that if it is done simply so that a malefice cannot remain hidden in the openings of the body or scattered among the body’s hairs, it is done in conformity with religion, and I should think the same about carefully washing the whole body beforehand with hot water, so that no ointment is left behind. But if the shearing were done because it was thought that that destroys the strength of the body and the fortitude of the spirit, as in the example of Samson whose whole body was touched by divine power, and even as in the instance of Apollonius of Tyana, my serious opinion would be that this is magical and superstitious. (4) They [i.e. Sprenger and Institoris] also add a fourth precaution—(this is what they say: I add their words so that it does not look as though I am palming something off on important men)—that [the judge] endeavour to find out whether she has been enveloped [involuta] in a malefice to help her remain silent, or whether she can shed tears when she is standing in front of him, or being exposed to torture. This, you see, is an absolutely reliable sign. From what people worthy of belief in ancient times have told us, and as our own experi-

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docente, adeo compertum est, quod etiamsi ad lachrymandum coniurationibus hortetur et compellatur, si maleficia exsistit, hoc ipsum scilicet lachrymas emittere, non potest; dabit quidem flebiles voces, et ex sputo genas et oculos linire, ac si fleret, attentabit, super quo a circumstantibus caute adversantibus erit. Modus autem coniurandi ad lachrymas veras, si innoxia fuerit, et cohibere lachrymas falsas, talis vel consimilis in sententia practicari a iudice potest seu presbytero, manum super caput delati seu delatae ponendo: Coniuro te per amarissimas lachrymas a nostro Salvatore Domino, etc. Quis mire|tur sub ea tempora haereses invaluisse, quando huiusmodi, quae nec Scripturae sacrae, nec Conciliorum, nec Decretorum Pontificiorum, nec Patrum, nec Ecclesiae consuetudine introductae sunt formulae, ad superstitiosas observationes accedebant? Iam ante docui indicium istud lachrymarum prorsus esse fallax, et annumeranda haud dubie haec experiantia, superstitiosis aliis explorationibus, quas mox refellam. Formula ipsa nihil continet impii, sed formulas huiusmodi iudicibus praescribere mere arbitrarias, et fallaci dumtaxat innixas experientiae; non satis pium, neque religiosum est, et sapit tentationem Dei. Nec ratio etiam quam addunt est bona, scilicet hoc contingere, quia gratia lachrymarum, in poenitentibus donum est Spiritus Sancti; et Diabolo displicet, ideo illam conatur impedire. Age enim, si oratio illa efficax ad hoc donum a Spiritu Sancto impoenitenti et nolenti maleficae impetrandum, ad lubitum interrogantis latrunculatoris (quod quis credat?) sane Diabolus non magis poterit has lachrymas impedire, quam cordis poenitentiam; si non est ad hoc efficax, cur id Diabolo displiceat, cui fictae lachrymae non possunt non placere? Cur ergo per huiusmodi commenta, ab Ecclesia non approbata, via struitur similibus superstitionibus? Praeterea cur nequeat Diabolus lachrymas si velit elicere, quas muliebre ingenium cum lubet elicit, et superstitio Flentium Picarditarum?

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ence teaches us, it has actually been found that even if she is encouraged to shed tears, and rebuked with adjurations, if she is a worker of harmful magic, she cannot do this, (that is, shed tears.) Certainly, she will utter plaintive cries and try to smear spit on her cheeks and eyes as if she was weeping, and bystanders should watch out carefully for this. But the following method, (or one like it), of adjuring her to shed genuine tears if she is innocent and refrain from shedding false ones can be carried out by a judge or a priest by saying the following.102 He puts his hand on the head of the man or the woman who has been charged [and says], ‘I adjure you, by the very bitter tears [shed] by our Saviour, the Lord,’ etc. Who can be surprised that heresies were strong at that time, when this kind of language, which owes nothing to Holy Scripture, Church Councils, Papal decrees, the Fathers [of the Church], and the customary usage of the Church, was approaching that used during the observances of superstition? I have said before that this piece of circumstantial evidence involving tears is utterly mistaken, and that this experiment should undoubtedly be counted along with other superstitious methods of investigation which I shall confute in a moment. The form of words itself contains nothing irreligious, but prescribing formulae of this sort, (which are merely arbitrary), and which rest upon an experiment which is simply fallacious, is neither sufficiently respectful to the judges nor religious, and smacks of tempting God. The reason they give, too—namely, that this happens because the grace of tears is a gift of the Holy Spirit to those who are penitent and is displeasing to the Devil, which is why he tries to prevent the woman from crying—is not a good one. I mean, look here! If that prayer is effective in acquiring the Holy Spirit’s gift for an impenitent and unwilling female witch [malefica] at the will of the judge who is questioning her103— and who can believe that?—the Devil will certainly be no more able to impede these tears than he can genuine repentance. If it is not effective for this purpose, why should it displease the Devil who cannot be displeased by feigned tears? Why, therefore, should he be displeased by this kind of invention which has not been approved by the Church, or by something built on similar superstitions? Moreover, why can the Devil not elicit tears if he wants to, when women’s temperament and the superstition of the weeping little Picards elicits them whenever they wish?

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Translations which refer to ‘while passing sentence’ do not really make sense. What would be the point of getting the magician to cry after she or he had been found guilty and was receiving the sentence of the court? The judge is particularised as a latrunculator—one whose job is to try brigands.

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Quintam insuper adunt iidem scriptores, Tonsis capiliis capitis, cum calice aut scipho aquae benedictae, guttulam cerae benedicta immittendo, et invocatione Sanctissimae Trinitatis, ieiuno stomacho trinies in potu ministrando per Dei gratiam a plerisque taciturnitatis maleficium abstulimus. Caetera transire possunt, cavendum ne vis ponatur in numero illo ternario, aut in ieiuno stomacho; utrunque enim impertinens est ad effectum. Sextam ponunt de tollendo hoc maleficio per alias maleficas, sed hoc merito improbant, et de hoc postea agetur copiose libro sequenti: cap. 2, q. 2. Obiicitur factum Praesulis Ratisponensis: quod dum quidam haeretici propria confessione convicti, ut impoenitentes et defensores perfidiae morti fuissent adiudicati, accidit ut in rogo illaesi persisterent: proiiciuntur ergo in profluentem, sed nec aquis demerguntur. Nutare multi, et fidem illorum suspicere. Sollicitus de gregis salute bonus pastor, triduanum indicit ieiunium, et preces Deo fundendas; nondum expleto triduo, venit quidam, et denunciat hosce sub uno brachiorum habere maleficium insertum inter carnem et cutem invento et amoto, confestim illos vindex flamma concremavit. Hunc ergo inquiunt denunciatorem fuisse Necromanticum, et eius praesulem usum denunciatione. Sed qui narrat Sprengerus, dubius fuit an Necromanticus fuerit, necne. Potuit enim Deus bono illi praesuli id aliter revelare, in causa tam gravi et populo necessaria. Deinde nos non omnium hic facta defendenda, sed causarum ac gestorum pondera libranda suscipimus. Septimum ergo hinc eliciunt, devotas ad Deum orationes iunctas ieiuniis et bonis operibus; immo et populo indici poterunt preces publicae ad invocandum divinum auxilium in generali, et ut contra daemonum quascunque infestationes caelitum auxilia implorentur. Iuxta illud boni Regis Iosaphat: Deus noster ergo non iudicabis eos? In nobis quidem non est tanta fortitudo, ut possimus. | Huic multitudini resistere, quae irruit super nos. Sed cum ignoremus quid agere debeamus, hoc solum habemus residui, ut oculos nostros dirigamus ad te.

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(5) The same writers I cited earlier add, ‘After their head has been shaved, by the grace of God we removed the malefice enabling most of them to remain silent, by putting a little drop of blessed wax in a chalice or a cup and giving it to them to drink three times on an empty stomach.’ Everything else can pass muster, but one needs to be careful not to attribute power to the number three or the empty stomach, because neither of these has anything to do with the effect of the operation. (6) Their sixth point is removing this malefice by means of others, but they quite rightly disapprove of this, and I shall deal with it at length later in chapter 2, question 2 of the next Book. Something done by the Bishop of Regensburg is offered as an objection. Certain heretics, as a result of their own confession, had been found guilty of being impenitent and of being defenders of falsehood, and had been sentenced to death. It turned out that, while they were at the stake, they remained unharmed, and so they threw them into fastflowing water—and yet they were not drowned. Many people wavered in their opinions and started to admire those people’s faith. Anxious for the salvation of his flock, the good shepherd ordered them to fast for three days and pour out prayers to God. The three days were not yet complete when someone came and accused these people of having a malefice inserted between the flesh and skin of one of their arms. It was found and removed, and immediately the avenging flame reduced them to ashes. So, people said that the man who accused them was a necromancer and that the bishop had taken advantage of his denunciation. But [Jakob] Sprenger, who tells the story, had his doubts whether the man was a necromancer or not, because in such a serious situation, and one which could be helpful to the populace, God could have revealed this to the good bishop in other ways.104 Secondly, I am not going to undertake here to defend what everyone has done, but to weigh their actions and the reasons for those actions. (7) They conclude from this, therefore, that prayers should be offered to God, conjoined with fasting and good works; and public prayers can indeed be enjoined on the people to invoke God’s aid in general, and also to implore Heaven’s help against any kind of disturbance by evil spirits, in accordance with the saying of good King Josaphat: ‘Therefore, our God, will you not judge them? We do not have great enough courage to be able to put up a resistance against this large number of people which is attacking us. But since we do not know what we should do, this alone is left to us—that we turn our eyes towards you,’ [2Chronicles 20.12].

104

Malleus Maleficarum Part 3, question 15 (215A–215B).

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Octavo loco addunt quaedam, mihi quidem non parum suspecta, nempe quoad diem, ut infra missarum sollemnia et sacratioribus diebus, maxime sextis feriis quousque fit compulsus pro exspectatione Salvatoris nostri, maleficae interrogentur; item si sal aut aliae res benedictae cum septem verbis quae Christus protulit in cruce, in scedula conscriptis, simul colligatis, collo malefici alligentur; longitudo Christi benedicta super nudum corpus et extra circumcingantur. Ego (quicquid illi dicant de experientia) illi experientiae non fido. Reliquias Sanctorum appendi collo, aut quasvis res Ecclesiastico ritu benedictas, cereas effigies agni dei (ut vocant) salem benedictum, etc. probo, dum desit irreverentiae periculum; et scio quoad agnum Dei hoc multis feliciter cecidisse; de verbis certis scripturae, quid sentiam iam dixi libro 1 Quaest. de periaptis. De longitudinis Christi Domini mensura, quid illa operari idonea, novit Deus; sane cum benedici illam prius volunt, indicant; hoc benedictioni Ecclesiae tribuendum; in ipsa etiam circumdatione, aliquid vereor ne sit mendosi. Dierum illa observatio suspecta quoque non immerito. Sed et iura festis diebus abstinere iudicialibus iubent, nisi quando periculum esset in mora, ut patet ex lib. Provinciarum C. de feriis, ideo quod iure receptum, ut in atrocioribus criminibus quovis festo, etiam in Paschalibus, liceat torquere, sed ad Dei honorem (ut addunt dd.) id ego certe ad casum periculi lubenter restrinxerim. In genere tamen liquuntur (ex lib. nemo C. de Epist. audien. Bald. Spec. et alii quos sequuntur Clarus § fin. q. 64, n. 34 et Binsfeld. in. lib. 7, cap. de malef., q. 1, conclus. 18). Sed cum idem

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(8) In the eighth place they add things with respect to a day, which I certainly find rather suspicious. ‘Witches [maleficae] should be questioned while Mass is being celebrated and on the holier feast days. The [judge] has a particular obligation to do this on Fridays while the people are waiting for our Saviour’.105 Likewise, ‘If salt or other blessed objects, and the seven words uttered by Christ on the cross written on a piece of paper, are bound up together, they should be tied to the neck of the worker of harmful magic [malefici], and the blessed length of Christ should be wrapped round his or her naked body as well.’106 Whatever those people say about the experiment, I have no faith in it. I approve of relics of the saints, or any objects blessed by a Church rite, wax images of the ‘Agnus Dei’, as they are called, and blessed salt, being hung round one’s neck, as long as there is no danger of irreverence, and I am aware that, in the case of the Agnus Dei, this has turned out to be fortunate for many people. On [the use of] certain words of Scripture, I have already said what I think in Book 1, in the question on periapts. On the measure of the length of Christ the Lord, why that is appropriate for the effect they want, God knows. Certainly, since they want it to be blessed first, they indicate that this should be attributed to the Church’s blessing, but I am afraid there is something wrong about its being wrapped round [the body]. The observation of particular days they talk about is not undeservedly suspect, too, but they also tell law-courts not to meet on feast days unless there would be danger in a delay, as is clear from the chapter on feast days in the Book of Provinces.107 So even though it is accepted in law that in the case of the more dreadful crimes it is lawful to torture someone on any feast day, even Easter, (but to the glory of God, as scholars add), I should certainly be willing to restrict this to a case which offered danger [to the public]. In general, however, no sittings are held on these days. I take this from the law ‘No one’, Codex; ‘the episcopal audience’; Baldo [degli Ubaldi], and other investigators who are sources for [Giulio] Claro, (end of question 64, number 34) and [Peter] Binsfeld, (Confessions Book 7, question 1, conclusion 1.)108

105 106

107 108

That is, waiting for the moment of the consecration of the wafer and the wine. These two passages and the earlier one from (7) about prayers combined with fasting, etc. are somewhat confusingly put together from the beginning of Malleus Part 3, question 16. The change of gender in the Latin word for the magical worker is unlikely to be significant here, although it does show that Del Río was not thinking exclusively of female offenders. Fridays were (and are) days of fasting to mark the day of Christ’s death. The length or measure of Christ was a well-known apotropaic device, though condemned by the Church after 1400. See further Don C. Skemer, Binding Words: Textual Amulets in the Middle Ages, University Park, Pennsylvania: The Pennsylvania State University Press 2006, pp. 143, 152. I.e. Codex 3.12.8. ‘No one’ = Codex 9.18.5. ‘The episcopal audience’ = Cpdex 1.4.

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Clarus fateatur timentes Deum iudices his diebus nunquam aliquem poena sanguinis afficere (vide illum q. 97, v. 6), idque in Dei honorem, non video cur, cessante illo periculo, non sit idem dicendum de tortura. Nono adiiciunt in ipsa quaestione, legenda dicta testium, submissis nominibus dicendo: Ecce convicta es per testes etc. Hoc non satis intelligo. Nam si velit dumtaxat nomina testium taceri, parum ad rem; hoc enim etiam extra quaestionem servandum, de quo superius; si summissa voce nominari, ita ne reus exaudiat nomina, exaudiens tamen reliqua; sane hoc supersititiosum est. Decimo monent interrogandum reum, an velit subire indicium ferri candentis, et si annuat, cognosci verum esse maleficum; profecto id fallax est imprimis; deinde iniquum proponere reo, quod ei facere, vel iudici non liceat permittere. Undecimo monent eos qui nihil in tormentis confessi, de carere paenoso, ad bene munitam, sed minus incommodam mansionem transferendos; nullo tamen modo relaxandos sub iuratoria vel fideiussoria cautione, quia sic nunquam veritas ab ita relaxatis habetur, sed semper deteriores efficiuntur. In primis potest casus ocurrere in quo sic sint relaxandi ad meliorem custodiam; iudici tamen tum vehementer cavendum ne aliis sint noxae suo exemplo, vel verbis. Deinde potest etiam contingere, ut locus sit cautioni fideiussoriae, ut superius dictum. Nec satis certa illa affirmatio, nunquam meliores effici. Non est abbreviata manus Domini, et praecedens vexatio dare potuit intellectum. Alia, quae Sprengerus addit, mox commemorabimus loco suo. Nunc ponamus duodecimam: quiddam ex | Francofurtensi I.C. quod addo, ut vitetur, quia mere superstitiosum. Quidam (ait) ne dolores sentiant solent hoc versus pronunciare:

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But since Claro acknowledges that judges who fear God never sentence anyone to death on these days, (see his question 97, number 6), and act like this in honour of God, I do not see why the same should not be said of torture, because the danger I mentioned is no longer present. (9) In connection with torture, they add that witnesses’ statements should be read with substituted names, saying, ‘You see, you have been found guilty by witnesses’, etc.109 I really do not understand this, because if [the judge] simply wants to keep the names of witnesses quiet, there is little point in his acting like this, since this has to be done outwith the torture-session as well—(I discussed this earlier)—and if the names are given in such a way that the accused does not hear them, but does hear everything else, this is undoubtedly superstitious. (10) They advise that the accused be asked whether he is willing to undergo the ordeal of red-hot iron and, if he agrees, whether he is willing to be identified as a genuine worker of harmful magic [maleficum]. In the first place this is undoubtedly deceitful, and in the second, it is unfair to suggest to the accused that he do this, and it is not permissible for a judge to allow it. (11) They advise that those who confess nothing while under torture be transferred from the punishment block to a prison cell which is well-guarded but less unpleasant. They should not, however, be released under pledged or sworn surety because, under those circumstances, the truth will never be obtained from those who have been released this way, and they will always be made worse.110 In the first place, a mishap can occur which means they can be released to a confinement with greater freedom, but the judge must take very good care that these women111 do not harm others because of the example he has set or the words he has used. Secondly, it can also happen that the location belongs to someone who has pledged surety, as I said earlier. The claim that [these people] are never made better is not particularly reliable. God’s hand has not been cut off from them, and the hardship they suffered before could have given them understanding. In a moment and in their proper place I shall mention other things which Sprenger adds, but now let me set down a twelfth quiddity from the legal expert from Frankfurt. I add this so that it can be avoided, since it is merely superstitious. A number of people, he says, are in the habit of reciting the following verses so that they do not feel pain.

109 110 111

Convicta es, specifically feminine. This is presented as a direct quotation from Malleus Part 3, question 16, but is actually Del Río’s re-expression of the sentence. Its meaning, however, is not materially affected. Noxae, again specifically feminine.

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Imparibus meritis tria pendent corpora ramis; Dismas et Gestas, etc. Quis non haec rideat! Scilicet iam vis etiam in Hexametri pedibus, subiungit et quaedam ex Psalmis. Et homo religiosus non audet haec pronunciare superstitiosa, ut facit (merito) sequentia Grillandi, nempe ad eruendam veritatem iudici pronuncianda esse verba Prophetae: Dominus labia mea aperiat, et os meum annunciabit veritatem. Nonne hic ipsa Psalmi verba detorquentur? Cur ergo vim arcessit a verbis Prophetae? Item: quis illa pronunciabit? Iudex? Qui hoc ad reum? Reus? Primum quid si nolit? Deinde certe invitus pronunciabit, nec impetrabit. Sed nugas mitto. sectio x De aliis mediis veritatem perscrutandi. Maioris momenti quaestio est liceatne iudici dolo falsis promissis, vel mendaciis a reo veritatem elicere? V.g. si fingat eum ab aliis etiam complicibus denunciatum, si promittat liberationem, quam ei non cogitat, nec vult impendere, nec de iure potest. Homo praecipitis ingenii et nova ac periculosa amantis Io. Bodin. haec omnia iudici permittit. In primis dum asserit licere mentiri; hoc hodie haereticum est; fide enim tenendum, mendacium (quod nomen huiusmodi mereatur) esse rem simpliciter et per se malam, ideoque adeo illicitam, ut nec Pontifex dispensatione bonam facere possit; quae est sententia

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‘Not like one another in merit, three bodies hang on their crosses, Dismas and Gestas,’ etc. Who cannot laugh at the idea that apparently power now resides in the feet of a hexameter! He also adds certain things from the psalms,112 and a religious person does not dare utter these superstitious words as the following passage from [Paolo] Grillando certainly does when it says that in order to draw out the truth, the judge should say the words of the prophet, ‘Let the Lord open my lips and my mouth will proclaim the truth,’ [Psalm 50.16].113 Aren’t the words of the psalm being distorted here? Why, then, does he summon power from the prophet’s words? Likewise, who is going to pronounce them? The judge? Is he going to say them to the accused? The accused? First, what if he does not want to? and secondly, he will certainly pronounce them unwillingly, and will not get what he wants. But I am dismissing this nonsense. Section 10 Other ways of investigating the truth A more important question is, is it permissible for a judge to elicit the truth from an accused person by tricking him with false promises or lies, such as pretending he has been denounced by others who are also his accomplices, or by promising him his freedom, which he does not intend or wish to grant, and which he is unable to grant lawfully? A person of rash temperament and a lover of dangerous novelties, Jean Bodin, allows the judge all these things. Most importantly, he maintains that a judge is permitted to lie. Nowadays that is heretical, because we are obliged to believe that a lie, (which is what this kind of thing deserves to be called), is something straightforwardly and of itself wicked. Consequently, it is illicit to such an extent that the Pope cannot make

112

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The legal expert is Johann Gödelmann, and the reference De Lamiis Book 3, chapter 10, number 39. ‘Dismas’ and ‘Gestas’ were supposedly the names of the two thieves crucified alongside Christ. The added words from a psalm are ‘My heart has uttered a good word’, 44.2. Gödelmann also quotes from Luke 4.30, ‘But Jesus, passing through their midst, went on His way.’ The verses appeared in chapter 17 of The Conjuring-Tricks and Incantations of Evil Spirits and Necromancers (‘De Praestigiis et Incantationibus Daemonum et Necromanticorum’) by Richard Argentine, an English physician and clergyman, who published his book in Basel in 1568. A Treatise on Interrogations and Torture, question 4, number 14. This was published in 1579. The reference, Psalm 50.17, is misquoted, as Del Río points out. It runs, ‘Lord, you will open my lips and my mouth will proclaim your praise.’

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non D. Augustini modo, et Thomae, ut nugatur Bodinus, sed hodie communis Catholicorum, qui illam sacris Scripturae locis optime confirmant. Fuit in sententia Bodini M. Marulus, lib. 4 De Instit. bene vivendi, cap. 4. Sed errore animadverso, eius interpres Gallicus plane contrariam Marulo sententiam tribuit; et multas paginas, quae non sunt Meruli, Marulo inservit, dictorum ipsorum Maruli confutationem pro Maruli dictis continentes, quam bono exemplo et prudenter ipse viderit. Argumenta Bodini ex sacris litteris facile solvuntur, et nos in tractatu De Mendacio solvimus omnia. Sed nota aliud esse dicere aliquid falsum, aliud occultare aliquid verum (ut notat D. Augustinus), veluti cum utimur, non mendacio, sed aequivocatione: prius illud non licet cuiquam, maxime iudici, qui in hac re gravissima, et in iudicio scienter mentiens, haud dubie peccaret mortaliter; posterius vero istud saepe licet; prius pertinet ad dolum malum, quia est contra legem, divinam et humanam; posterius pertinet ad dolum bonum, quia nec iure divino, nec humano repugnat, et dirigitur in bonum reipub. et iustitiae ex secutionem. His positis sit prima conclusio: Poterit iudex uti aequivocatione et verbis subdolis (citra mendacium) et ambigua promissione liberationis, ut reum inducat ad fatendum veritatem, et auctorem criminis commissi deprehendat. Est communis opinio dd. apud Covarru. et Plaxam. Dissentit quidem ad hac Iul. Clar., sed non distinxit mendacium a sermone aequivoco; immo aperte loquitur de eo qui expresse impunitatem promisit, quae sane | promissio ad Bodini casum pertinet, nec mirum est si Paris de Puteo et Dyn. dissuaserint tali

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it good by dispensation, and this is not only the opinion of St Augustine and St Thomas [Aquinas]—Bodin brushes this on one side—but nowadays the common opinion of Catholics who, quite correctly, confirm it with passages from Holy Scripture. In Book 4, chapter 4 of his Principles of Living a Good Life, [Marko] Marulić had the same opinion as Bodin, but even though the error had been noticed, his French translator attributed to Marulić what was quite clearly the opposite opinion and foisted upon Marulić many pages which are clearly not by him at all and, in place of what Marulić had said, contain a refutation of what Marulić actually did say, just as he himself saw fit and proper.114 Bodin’s arguments are easily answered from Holy Scripture, and I have answered them all in a treatise on lying.115 Notice, however, that it is one thing to say something which is not true and another to hide something which is true, (as St Augustine observes), such as when we make use, not of a lie, but of equivocation. The former is not permissible for anyone, especially a judge who would undoubtedly be committing a mortal sin by knowingly telling a lie in court in a very serious situation. The latter, however, is often permissible. The former involves a wicked trick, and that is against divine and human law. The latter involves a good trick because it does not run counter to divine or human law and is directed towards the good of the state and the execution of justice. Now that this is clear, my first conclusion can be that in order to induce the accused to tell the truth, and in order to discover the perpetrator of the crime which has been committed, a judge will be able to use equivocation and deceitful words which do not amount to lying, and an ambiguous promise to set him free. This is the common opinion of scholars according to [Diego de] Covarrubias and [Pedro] Plaza [y Moraza].116 Giulio Claro, however, disagrees on this point, but he did not distinguish a lie from an equivocation. To be sure, he speaks frankly about the person who has expressly promised impunity, and of course this promise is pertinent to Bodin’s case, and it is not surprising that Paride del Pozzo and Dino [de Rossoni da Mugello] do not encourage the use of such a

114

115

116

Marko Marulić, (1450–1524), a Croatian scholar who published in both Latin and the vernacular. His Principles of Living a Good Life according to the Examples of the Saints (‘De Institutione Bene Vivendi per Exempla Sanctorum’) was published in Venice in 1506. The tense of ‘solvimus’ is ambiguous, because it could also be a present form, in which case it would mean ‘I am answering’, i.e. he is engaged on writing such a treatise now, as opposed to having done so already. Pedro Plaza y Moraza (1524–1564) was a jurist practising mainly in Salamanca. He published A Summary of Criminal Offences and Trials based on Canon Law in Lyon in 1560.

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promissione uti. Sane fateor iudicem non posse impunitatem reo promittere, nisi sit supremus iudex, qui habet absolvendi et liberandi potestatem, et hoc facere intendat. Quoad inferiorem iudicem maxime haec quaestio procedit, et quoad dolum bonum, non quoad dolum malum sive cum mendacio coniunctum, qui nec supremo iudici permissus. Obiicitur a quibusdam, promissio est iuris naturalis et eo iure obligat? Quare et hosti et reo servanda. Respondeo: Quando de re possibili est; ista autem est de re quae iure iudici impossibilis; ideo nihil refert quod iudex habuerit animum liberandi reum; si vero non habuit animum, peccavit etiam per mendacium, verba menti contraria proferens. Secunda responsio: ista locum non habere in nostra conclusione, in qua nec iudex intendit liberare, nec verba id necessario significabant, imputet sibi reus; quod non subtilius sensum verborum ambiguorum discusserit. Exempla aliqua huius aequivocationis occurrunt passim in praxi. Acutum fuit dictum iudicis Leodien. et licitum, qui sagae pertinaciter cuncta neganti, dixit: si veritatem luculenter profiteretur, se illi de publico vel suo, quoad viveret ipsa, quotidie cibum et potum necessarium praebiturum, et curaturum ei domum novam exstrui; domum intelligens ligneam fascium straminumque, in qua erat comburenda. Alia suggerit Sprengerus, veluti si honestius habeatur reus solito, et sinantur ad eum intrare viri honesti, et non suspecti, qui frequenter colloquantur de variis rebus etiam impertinentibus; et tandem fidenter suadeant, ut fateatur veritatem, promittendo iudicem facturum sibi gratiam, et se esse velle mediatores: “et postea subintret iudex et promittat facere gratiam, subintelligendo sibi vel reipub. in cuius conservationem totum quod fit est gratiosum.” Posset etiam iudex dicere se illi optime consulturum, et confessionem ei utilissimam futuram, etiam ad vitam sibi comparandam; hoc enim verissimum de vita aeterna, quae vera vita est; idem Sprengerus paulo ante tra-

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promise.117 I acknowledge, of course, that a judge cannot promise an accused impunity unless he is the judge of final appeal who has the power of declaring someone not guilty and setting him free and intends to do so. Where an inferior judge is concerned, this question does arise, and most especially with regard to the good trick, not the wicked one or one combined with a lie, a trick which is not permitted the judge of final appeal. A number of people raise the objection that this promise is one of natural law, and binds him because of that law, so why should it be kept for someone who is an enemy and an accused person? My first answer is, when it concerns something a judge can do. But this concerns something a judge cannot legally do, and so it is of no consequence that he intends to set the accused person free. If, on the other hand, he does not intend to do so, he commits a sin by lying—saying words which are the opposite of what he means. My second answer is that this [promise], in which the judge does not intend to set him free, has no place in my conclusion, and the wording did not necessarily mean he did, [although] the accused may give it this meaning because he has not taken greater care to investigate the sense of the ambiguous words. Examples of this equivocation happen everywhere in practice. A judge from Liège was acute (and lawful) when he said to a wise-woman [sagae] who was stubbornly denying everything, that if she made a satisfactory confession of the truth, he would provide her every day with the food and drink necessary to keep her alive, at public expense or his own, and that he would take care to erect a new home for her, (‘home’ meaning the heap of faggots and straw on which she would be burned.) [Jakob] Sprenger provides others such as, if the accused is considered to be someone of greater respectability than the usual [kind of defendant], and respectable men who are not under suspicion are given leave to enter his cell, they can have frequent conversations about various irrelevant topics and in the end persuade him to tell the truth without being afraid, by promising that the judge will do them a favour and that they want to mediate between them. Then ‘later on the judge can come in and promise to do him a favour, implying that the favour will be done to himself [the judge] or to the state, for whose preservation everything [the judge] is doing is a favour.’ The judge could also say he will take very good care of him and that his confession will be very useful to him [the judge] and could even save his [the accused’s] life. (This is entirely true because it means eternal life which, which is the real life). Just before this, Sprenger recorded three other opinions

117

Dino de Rossoni da Mugello (c.1253–c.1303) was a jurist who wrote a number of legal commentaries.

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diderat sententias tres alias huc pertinentes. Scilicet posse illi securitatem vitae promitti, quando iudex intenderet eam vel exilio punire, vel carcere perpetuo; haec sententia satis aequa est. Alios (ait) velle, sic ad tempus tum in carceribus asservandam, sed postea incinerandam post aliquod temporis spacium; hanc refellere debuit, quia revera mendacium continet promissio huiusmodi. Tertiam ponit dicentium, posse iudicem secure vitam promittere, et postea se a sententia referenda exonerare, et in suum locum alium substituere, neque hanc reiicit, sed est omnino similis secundae et adhuc peior, coniuncta cum mendacio; ideo penitus cavenda. Fortassis tutius est, quod alibi posuit, nempe ut petenti gratiam reo, respondeat iudex; fateatur veritatem confidenter, clementiae se rationem maximam habiturum, amplius te facturum quam ipse petat, et similia verba generalia. Secunda conclusio: Si iudex dolo malo huiusmodi per mendacium confessionem extorserit, non potest ex sola hac confessione reum damnare, nisi reus postea comperta fraude, de novo id fateatur sponte, vel alia satis praegnantia indicia et argumenta accedant, vel saltem fraude cognita non retractet, quod inductus dolo malo dixerat. Haec est verior sententia Imolae, Decii, et aliorum, quos sequitur Covar. bene addens, quando nec retractat nec expresse ratificat confessio|nem, nec alia satis praegnantia accedunt indicia mitius et extraordinaria poena affici debere, si accedant illa indicia, posse plecti ordinaria. Si obiicias promissionem hanc contra remp. esse factam, et ideo non prodesse debere reo ad poenae diminutionem. Respondet Covarr.: tunc iudicem non debere servare promissionem, quando via ordinaria et recto plane tramite cognovit delictum; non quando dolose illud et via illicita expiscatus fuit.

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which have a bearing on this: namely, that she can be promised that her life will be secured, (when the judge’s intention would be to punish her either with banishment or perpetual imprisonment, a meaning which is reasonably fair). Others, (says Sprenger), are willing she be kept in prison for the time being but be burned later on after a period of time. (He ought to have rejected this because this kind of promise actually contains a lie). The third thing he says is that the judge can quietly promise her her life and later on relieve himself of the burden of passing sentence by getting someone else to do it for him.118 Sprenger did not reject this, but it is just like the second, and is still worse, because it is conjoined with a lie, and one should therefore be on one’s guard against it. Perhaps what he says elsewhere is more trustworthy—that the judge reply to an accused who asks him for a favour that he should boldly confess the truth and that this will give him [the judge] a very good reason to be merciful, that he will do more than the accused is asking, and similar generalities. Second conclusion: if a judge has extorted a confession by lying with a wicked trick of this kind, he cannot convict the accused on the strength of this confession alone unless, after the deception has been discovered, the accused confesses again of his own free will and accord: or other pieces of circumstantial evidence sufficiently teeming [with reliable information], and other pieces of evidence turn up: or at least, once the deception has been recognised, the accused does not retract what he had been induced to say because of the wicked trick. This is the more accurate opinion of [Giovanni de] Imola, [Filippo] Decio,119 and others whom [Diego de] Covarrubias follows, rightly adding that when the accused does not retract or expressly ratify his confession, and other pieces of circumstantial evidence teeming with enough satisfactory information do not turn up, he should be punished more lightly, with a penalty left to the judge’s discretion, and that if those pieces of evidence do turn up, he can be punished in the usual way. If you object that this promise works to the disadvantage of the state and therefore ought not to benefit the accused with a reduction of his punishment, Covarrubias replies that, under those circumstances, the judge ought not to keep his promise when he has investigated an offence in the ordinary way and by a direct path, but this does not apply when he has uncovered

118

119

The references are to Malleus Part 3, question 15. The odd change of the gender of the accused comes from Del Río’s referring to a male accused, although the passages in the Malleus are talking about a female or imply that the accused is female. Giovanni Nicolétti de Imola (c.1370–1436) and Filippo Decio (1454–c.1535) both wrote commentaries on the Digest.

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Dixi in conclusione dolo molo, quia si dolo bono, et proinde via licita cognovisset, putarem non esse opus nova ratificatione, saltem in foro exteriore; immo nec in interiore; licuit enim iudici bono dolo, malum obstinati silentii animum rei decipere, et sibi iste imputet simplicitatem suam. Nec arbitror Clarum, si in terminis de dolo bono interrogatus fuisset, dissensurum, ut satis indicat supra numero 8, nec etiam Menoch. De arbit., cas. 364. Tertia conclusio: Si tamen iudex putans id sibi licere, sic dolo malo criminis cenfessionem a reo elicuerit, et fraude cognita reus nec ratificat, nec retractat; ideoque iudex eum ordinariam ad poenam condemnet, non auderem iudicem de mortali peccato accusare. Haec conclusio intelligenda de peccato, non quod incurrit mentiendo, de quo vix potuit habere probabilem ignorantiam, sed de peccato, quod incurrit, reum ex tali confessione condemnando; de hoc enim peccato valde probabilis ei suppetit excusatio, cum id ei licere, immo et eum debere multorum locorum praxis, et plurimorum dd. confirmet sententia, adeo ut communiorem censuerit Alciat. et communem saltem fateantur Plaza et Clar. Addidi nec retractat, quia si reus expresse retractaret, nec alia contra ipsum argumenta concurrerent, tunc certe non auderem iudicem a mortali culpa liberum asserere. Nam illa communis Felini et aliorum (ut recte Covar. quem sequitur Menoc.) intelligenda, quando reus cognita fraude expresse confirmat suam confessionem, vel saltem tacite, non retractando; nam tunc illam ratificasse censendus, et haec distinctio fuit de mente Paridis de Put. cap. De tort. v. sequitur quaestio quotid. Inquisitores Germaniae docent adhuc quasdam alias cautelas non improbandas, ut iudex diligenter consideret complicum dicta ad reum pertinentia,

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it by trickery and illegal means. In my conclusion I said ‘because of a wicked trick’ because if he had investigated it by means of a good one, and therefore in a legal way, my opinion would be that there is no need for a fresh ratification, at least not in an exterior court [of law]—and, indeed, not in the interior court [of conscience], because the judge has been permitted to deceive, by means of a good trick, an accused who, with wicked intention, is maintaining a stubborn silence, and the judge can credit himself with being frank. I do not think that [Giulio] Claro would disagree, had he been asked directly about the wicked trick, as he makes perfectly clear, (above, number 8), and neither would [Giacomo] Menochio, (Investigations and Cases, case 364.) Third conclusion: if a judge thinks he is allowed to do this and thus, by means of a wicked trick, elicits the confession of a crime from the accused and if, after the accused realises he has been deceived, he does not ratify or retract it, and the judge therefore sentences him to the usual punishment, I should not venture to accused the judge of committing a mortal sin. This conclusion ought to be understood in reference to sin—not the one the judge incurs by lying, about which it is scarcely likely he can have been ignorant, but the sin he incurs by convicting an accused person on the basis of such a confession, because when it comes to this sin he has a very credible excuse, since actual practice in many places and the opinion of a very large number of scholars confirms that it is permissible for him to do this and that he ought to do it. ([Andrea] Alciato thinks it is fairly common and [Pedro] Plaza [y Moraza] and [Giulio] Claro say it is, at any rate, common.)120 I added ‘and does not retract it’ because of the accused did expressly retract [his confession] and there were no other concurrent arguments against it, I should certainly not be bold enough to claim that the judge was guilty of a mortal sin. The common opinion of Felino [Maria Sandeo] and others, (as Covarrubias, whom Menochio follows, quite correctly says), should be understood to mean when the accused expressly, or at least tacitly, confirms his confession after he realises he has been deceived, and does not retract it, because under those circumstances he should be considered to have ratified it. (This distinction of intention was made by Paride del Pozzo in his chapter on torture and see his following remarks on daily interrogation.) The German inquisitors [Sprenger and Institoris] tell us that there are still other precautions which should not be rejected such as (i) the judge should give careful consideration to anything pertinent to the case, which accomplices say

120

Andrea Alciato (1492–1550) was a jurist who wrote commentaries on Justinian’s Codex and Digest.

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et haec reo proponat, et diligenter singula investiget; si qua etiam instrumenta, ut unguenta, pixides, buffones, praesegmina cadaverum, et similia in domo eius reperta fuissent, ei offerat, et quaerat quid his egerit, cur ea servarit etc. Secundo, ut complices, si quos, habet, qui contra reum deposuerunt, ad reum intromittat, et permittat eos simul mutuo de facinoribus suis conferre, edere ac bibere, et habeat in loco vicino auscultantes et verba accipientes; etiam, si opus, Notarium publicum; si desint complices, utatur ad hoc personis, quas novit non ingratas reo, sed amicas, et quasi faventes atque miserantes, qui quodam sero intrent carcerem, et sermones dedita opero producant in multam noctem, tum quasi fortuito id accidisset, quaerantur sero nimis esse ad recedendum, ideo in carcere pariter reliquum noctis exigant, et semper colloquantur, et sint similiter (ut dictum est) in vicino dicta excipientes. Tertio quod quandocumque veritatem fateri incipiant nullo modo iudex actum hunc interrumpat, ne dimidiet confessionem, sed instet quoadusque de | omnibus veritatem dixerint, saltem quoad principalia, etiamsi in mediam noctem deberet proferre, et prandium caenamve differre. Nam experientiam docuisse per dimidiationes et interruptiones, illos frequentius ad vomitum redire, et non aperire veritatem quam inceperant detegere. Quarto, si praedicta deficerent omnia, tunc si fieri posset, deducendos ad aliquod castrum, et ibi certis diebus custodiae mancipandos; tum castellanum fingere se cogitare longum iter, et diu abfuturum; interea ut aliqui familiares, vel mulieres honestae mulierem; viri, si vir sit, virum visitent; promittant ei (non ut ait Sprenge.) quod velint eam omnino permittere libere abire, sed citra mendacium verbis aequivocis (ut dictum supra de iudice in genere) multa et illecebrosa, dummodo se informent de certis, quae scire cupiunt, experimentis. “Et advertas (inquiunt) iudex quod saepissime per talem modum fassae fue-

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to the accused, put this to the accused, and carefully investigate the individual details. If by chance instruments of magic, such as ointments, little boxes,121 had been found in her house, he should put them in front of her and ask what she was doing with them, why she was keeping them, etc. (ii) If the accused has accomplices who have deponed against her, the judge should send them in to her and allow them to talk together about the offences they have committed, and to eat and drink. He should have people eavesdropping in a place nearby, listening to what they are saying, and, if necessary, a public notary. If there are no accomplices, he can use people for this purpose whom he knows the accused does not dislike—female friends who can pretend to be sympathetic and compassionate. These people can enter the prison one evening and, in accordance with the task they have been assigned, prolong their conversations far into the night. Then, as if by chance, it could happen they complain it is much too late for them to leave and therefore they pass the rest of the night together in the prison, keeping up the conversation all the time; and likewise, (as I said), there should be people nearby, listening to what is being said. (iii) Whenever they start to confess the truth, the judge should on no account interrupt what they are doing, lest he break off their confession, but should press ahead until they have told the truth about everything, at least as far as the most important points are concerned, even if he has to go on until midnight and put off luncheon or dinner. Experience, you see, has told us that when proceedings are broken in two and interrupted, these people quite often return to their vomit and do not fully reveal the truth they had begun to disclose.122 (iv) If the foresaid produce nothing at all, the accused should then, if possible, be taken to some fortress and kept there under guard for a number of days. Then the governor pretends he is contemplating a long journey which will keep him absent for a long time. Meanwhile, some close friends or respectable women, (if the accused is a woman), or men, (if the accused is a man), can visit him and promise, not, as Sprenger says, that they are willing to let her go free, but, with equivocating phrases this side of a lie, (as I said earlier in connection with the judge in particular), many enticements provided they are told about certain magical practices they want to know about. ‘A judge,’ say [Sprenger and

121

122

Pixides. A pyxis was not only a small box which might contain ointment or small objects such as coins but was also the box which contained the consecrated Host and was small enough to be carried by a priest visiting the sick or dying. Hence it is a loaded term in this context. ‘A fool who repeats his stupidity is like a dog which goes back to its vomit,’Proverbs 26.11. In other words, the witch and her companions start talking trivia again. Del Río is referring to Malleus Maleficarum, Part 3, question 16 (217A–217B).

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runt et convictae. Et novissime in diocaesi Argentinensi prope oppidum Schletstat et castrum Konigeheym malefica detenta nullis tormentis et quaestionibus deduci poterat ad fatendum sua crimina; tandem modo supradicto per Castellanum servato, licet praesens erat in castro, ipsum tamen malefica aestimabat abesse; tres ad eam familiares intrabant, et ei liberam relaxationem promiserunt, dummodo super certa experimenta eos informaret. Et licet prima fronte renueret, et quod dolose cum ea agerent proponeret; tandem interroganti de quibus informari vellet, unus dixit super grandinem excitandam, alter super carnalia facta. Tandem ubi super grandinem illum informare volebat, et scutella plena aqua apparata, malefica sibi iniunxisset, ut digito paullulum aquam moveret, et ipsa certa verba protulisset; subito locum, quem explorator nominaverat, scilicet silvam adiacentem castro, tanta tempestas et grando replevit, sicut a multis annis visum non fuerat.” Hactenus illi. Sed in hoc exemplo bis peccatum, primo in mendaci promissione. Ut enim iudici non licet per se mentiri, sic nec licet alios ad mentiendum inducere. Secundo peccatum fuit in eo quod nimis longe exploratores progressi. Non enim licuit maleficam etiam paratam ad peccandum inducere, etsi licebat examinare quomodo soleant operari, et sic intellige quod de informatione dictum; nempe de verbali per modum docentis, non de reali per modum facto ostendentis et exemplum praebentis. Vides hic iam captas posse ex condicto cum daemone quaedam operari? Solent etiam iudices uti confrontatione: ea duplex est, una spontanea, altera violenta. Spontaneam voco quando parati sunt rei, alios nondum captos societatis arguere et convincere; hanc nunquam iudex permittat, nisi praecesserint indicia talia, ut propterea citari possint, et iam citati, si non bene dissolvant obiectiones rei constanter eos accusantis, queant in carcerem compingi. Nam

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Institoris], ‘should note that the women have very often confessed and been convicted by this kind of method. Very recently, in the diocese of Strasburg, near the town of Schlettstadt and the castle of Königsheim, a female worker of harmful magic [malefica] was under detention. No torture or interrogation was able to bring her to the point of confessing her crimes, and in the end the governor used the method we have just described. (He was present in the castle, but the woman thought he was away.) Three close friends of hers came into her [cell] and promised she would be set at liberty, provided she told them about a number of magical things she had done, and although her first reaction was to refuse because, she suggested, they were trying to trick her, eventually she asked one of them what he wanted to know. One man said he wanted to know how to stir up a hailstorm, and another one said he wanted to know how to make people have sex. In the end she was willing to tell him about a hailstorm and was provided with a shallow dish full of water. The witch [malefica] instructed him to move the water about a little bit with his finger and she herself pronounced certain words. Suddenly, the place the spy had named—a wood right by the castle—was filled with rain and hail to an extent which had not been seen for many years.’123 This is what they say, but in this example, there are two sins: (i) in the lying promise, because just as a judge is not allowed to lie himself, so he is not allowed to induce others to lie; and (ii) there was a sin in the spies’ taking things much too far. It was not permissible for them to induce the woman who worked harmful magic to lie, even though she was willing to do so, and even if it was permissible to investigate how they are accustomed to operate. So, understand from this what was said about ‘being informed’. There can be no doubt that this meant being informed verbally, by being given an explanation, not concretely by being given a demonstration and furnished with an example. Do you notice here that women who have already been arrested can do certain things because of their agreement with an evil spirit? Judges are also in the habit of employing confrontation. This is of two kinds: one is voluntary, the other is forced. I call it voluntary when accused persons are prepared to accuse others who have not yet been arrested and prove their accusation. The judge should never allow this confrontation unless it has been preceded by such pieces of circumstantial evidence as can be used in court later, and if those who have been accused, once cited, are not consistent in removing the objections of the accused person who is accusing them, they can be thrown in gaol, because otherwise harm could be done after they have

123

Malleus Maleficarum, Part 3, question 16 (217C–217D).

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alioqui fieret iniuria his denunciatis. Violentam voco, quando complices in mutuis delationibus inter se dissentiunt; tunc debent primo seorsim, postea simul de hoc dissidio interrogari; quod si subdole comperiat persistere, nec alia est via inveniendae veritatis, solent altera in alterius mutuo conspectu torqueri, de hac praxi vide Iudoc. Damhoud. Prax. crim., 47. sectio xi De confessionibus. In rite confessos non aliud iudicis officium, est quam condemnandi, iuxta illud Christi Domini: “Ex o|re tuo te iudico,” et illud Iurisconsulti confessus pro iudicato est, quia quodammodo sua sententia damnatur; intellige si confessio sit clara, certa, verisimilis, constans, et legitima, nam obscura et dubia in favorem interpretanda confitentis, parum idonea est ad iudicandum. Verisimilis etiam sit oportet, quia inverisimilis nunquam sufficit ad condemnandum. Inverisimilis autem est, quae de re est impossibili, aut omnino falsa; quod concedimus Ponzinibio et Godelmanno; sed contendimus eos errare, dum in Lamiarum confessionibus ea dicunt notorie falsa et impossibilia, quae vera et possibilia nos esse docuimus supra lib. 2. Legitima etiam sit oportet, hoc est non praesumpta tantum, nec ficta tantum fictione iuris (nisi ex contumacia, quae liquidissimam inducit probationem), nec contra quam colorate aliqua obiiciantur; nec quando est incidenter tantum facta, vel metu tormentorum, vel extra iudicium, vel in figura tantum iudicii, vel absente parte, vel in iudicio summario,

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been denounced. I call it forced when accomplices disagree while they are making accusations against each other. Under those circumstances, they should be questioned about their disagreement first separately, then together; and if one finds that they persist in their crafty behaviour and there is no other way of discovering the truth, the practice is for one woman to be tortured while the other one looks on. (For this practice, see Joost Damhouder, Practice in Criminal Trials, 47.) Section 11 Confessions In the case of those who have made a formal confession, the duty of the judge is simply to pass sentence, in accordance with what Christ, our Lord, said, ‘Out of your own mouth I judge you,’ and what the legal expert says, ‘A person who has confessed is like someone who has already been sentenced because, in a way, he has passed sentence on himself.’124 Understand this to mean if the confession is clear, reliable, likely to be true, consistent, and legal, because if it is not clear and wavers so that it can be interpreted in favour of the person making it, it is not much use for passing judgement. It needs to be likely to be true, as well, because a confession which is unlikely to be true is never enough to let the judge pass sentence. A confession which is unlikely to be true involves something which is impossible or completely untrue, (and here I agree with [Gianfrancesco] Ponzinibio and [Johann] Gödelmann).125 But I maintain they are wrong when they say there are things in witches’ [lamiarum] confessions which are flagrantly untrue and impossible, because I said earlier in Book 2 that these are true and possible. A confession also needs to be legal, that is, not one which has simply been taken for granted, not one which has been made up by a legal fiction, (unless it has been made as a result of the person’s stubbornness which results in a proof which is perfectly clear), and not one against which any specious objections can be lodged: nor when it has been made simply incidentally, from fear of being tortured, or outwith a court of law, or in a place which merely looks like a court of law, or in the absence of the party concerned, or in a summary judgement, or in no [legal] judgement at all. It will, however,

124 125

Luke 19.22. The legal expert = Paulus at Digest 42.2.1. Gianfrancesco Ponzinibio (floruit early sixteenth century) criticised the belief that there was any real power in witchcraft. Johann Gödelmann (1559–1611) was not always consistent in his treatise on magicians and witches, which is probably why Del Río was able to agree with him from time to time.

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aut nullo; erit autem bona in casu Lamiarum et haereticorum, etiamsi non constet de corpore delicti. Dicetur facta metu tormentorum, non tantum si graviter tortus fuit, sed etiam si fuerit leviter tortus, levatus ad torturam, ductus ante eculeum, spoliatus, vel si seriae minae de torquendo praecesserint, quoad eos qui timidi sunt et torturae inassueti. Item, ut sit legitima, necesse est, non sit extorta, nullis vel non sufficientibus indiciis praecedentibus; nam talis esset nulla et invalida, etiamsi millies foret ratificata; idem, si in repetitione quaestionis sit extorta, quando non licebat iudici repetere; idem si extorta per iudicem pendente appellatione a sententia torturae; idem si confessio extorta a reo, contra quem sola fama urgebat, etiamsi saepius ratificetur; idem si emanarit ab eo cui, denegata defensio, vel copia indiciorum; idem si sit illius, qui qualibet ex causa de iure torqueri non debebat; confesso autem et convicto per legitimam quoque torturam adhuc ante condemnationem dandus est terminus ad se defendendum, etiam non petenti ex aequiori et receptiore sententia. Fallunt ista in eo qui a natura mutus simul et surdus foret, qui non potest, ex sua confessione signis declarata, condemnari: quare frustra torqueretur, sed damnari dumtaxat potest ex testium depositione ac probatione. Denique quaeri potest, an qui confessus factum maleficum, negat se prava intentione fecisse, sit audiendus? Ut plurimum, quia praesumptio ei contraria est, puniendum nihilominus constat, etiamsi iuramentum offerat de recta intentione; interdum tamen poterit iudex iuratum reum admittere ad probandum aliqua verisimilia, quibus confessio eius elidatur. Quod si res dubia sit, poterit reus torqueri, ut intentionem suam proferat, ut bene post Lanfranc. et Bossium, asseruit Simanc. Prax. haeret., tit. 29, n. 10.

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be acceptable in the case of witches [lamiarum] and heretics, even if there is no agreement about the evidence of the crime as a whole. It will be said to have been made from fear of being tortured not only if [the accused] has been tortured violently, but also, (in the case of people who are fearful and unaccustomed to torture), if he has been tortured lightly, refreshed during torture, brought in front of the rack and stripped, and if he has been seriously threatened with torture beforehand. Likewise, in order for the confession to be legal, it must not have been extorted in this fashion when there are no or insufficient pieces of circumstantial evidence beforehand, because such a confession would be null and void, even if it had been ratified a thousand times. Likewise, if it had been extorted during a repetition of torture when it was not permissible for the judge to repeat it. Likewise, if it was extorted by a judge pending an appeal against his sentence of torture. Likewise, if the confession was extorted from an accused who simply has a bad reputation, even if it is ratified on more than one occasion. Likewise, if it has emanated from someone who has been denied a defence, or when a large number of pieces of circumstantial evidence has been rejected. Likewise, if it comes from someone who, for any legal reason, ought not to have been tortured. But once he has confessed and has also been convicted by legitimate torture, before sentence is passed, he should be given restricted amounts of time to defend himself, even when he does not ask for them, in order to achieve a sentence which is fairer and more acceptable. These points do not apply in the case of someone who is naturally both dumb and deaf, and he cannot be found guilty from his confession which he made by means of signs. There would therefore be no point in his being tortured; but he can, as far as this case is concerned, be found guilty on the strength of a deposition and evidence from witnesses. Lastly one can ask whether a hearing should be granted to someone who has confessed to an act of harmful magic [ factum maleficum] and says he did not do it with wicked intent. For the most part, (because presumption is against it), there is general agreement he should, nevertheless, be punished, even if he offers to swear to his good intention. Sometimes, however, a judge will be able to admit an accused who has been sworn in, to test things which are likely to be true and by which his confession is being struck down, because if the matter is in doubt, it will be possible to torture the accused so that he makes his intention known, as [Diego de] Simancas, following Lanfranco126 and [Egidio] Bossi, clearly explains in his Practice of Heresy, title 29, number 10.

126

Perhaps Lanfranco de Oriano, (c.1398–1488), who wrote extensively on judicial practice. His principal treatise, Practica Judiciaria, was published in Lyon in 1538.

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sectio xii De abiuratione.

393

Ut in aliis speciebus haeresis, etiam in Lamiarum crimine, abiurationi aliquando locus est; quando iudicium tantum nititur suspicionibus. Sumimus hic abiurationem pro execratione seu anathematizatione iureiurando firmata. Et quia suspicio haec, quae est levis quaedam praesumptio mali ex levibus | indiciis procedens; oritur ex diversis causis non aeque urgentibus, fit ut quaedam suspicio sit levis seu modica, quae etiam potest vocari temeraria iuxta Menochium; alia vehemens seu verisimilis, alia violenta. Et sic dividendo, levis oritur ex iudiciis admodum levibus, quae absolute dubium reliquunt iudicis animum, et haec proprie dicitur suspicio. Vehemens oritur ex indiciis habentibus multum verisimilitudinis, adeo ut inclinent aliquantum iudicis animum in alteram partem, et sic dubitationem non excludunt totam; haec suspicio magis proprie vocatur opinio. Violenta denique oritur ex indiciis valde fortibus, et adeo efficacibus, ut omnem dubitationem ex animo iudicis eliminent et faciant eum plane uni parti assentiri. Haec proprie vocatur praesumptio, iudicium, sententia, de hac est cap. cum contumacia, cap. cum accusatus. de haerei. in 6 cap. quorumdam d. 34. Iudicis autem arbitrio permittitur qualitatem sive quantitatem suspicionis moderari; dummodo caveat ne levis sit corde, nimis facile credendo. Exempla huiusmodi suspicionum ponit Sprengerus, ut si quis deviet a communi consuetudine, vivendi, si conventiculis secretis maxime nocturnis intersit, aut cum suspectis familiaritates secretas habeat, dicit levem oriri. Si quis quos novit maleficos, visitat, munera offert, occultat, recipit, defendit, vel aliter actu favet, tum oriri vehementem; si quis perpetraverit eae quae pertinent ad ritus maleficorum, paciscendo, adorando, sacrificando, comminando,

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Section 12 Abjuration As in other types of heresy, there is sometimes a place for abjuration, even when it comes to the criminal activity of witches [lamiarum], when judgement rests simply on suspicions. Here I take ‘abjuration’ to stand for a solemn execration or curse strengthened with an oath; and because the ‘suspicion’ I mentioned, (which is a slight presumption of evil, proceeding from unimportant pieces of circumstantial evidence), arises from causes which are not equally pressing, it happens that a suspicion can be slight or moderate—according to [Giacomo] Menochio, it can also be called ‘rash’. Another may be strong or likely to be true, and another violent. If one divides suspicion this way, the slight one arises from very slight pieces of circumstantial evidence which leave the judge completely foxed, and so the proper name for this one is ‘suspicion’. The strong one arises from pieces of circumstantial evidence which are very likely to be true, to such an extent that they put the judge somewhat in two minds and do not exclude all hesitation. The proper name for this kind of suspicion is ‘supposition’. Thirdly, the violent kind arises from very strong pieces of circumstantial evidence, and these have such an effect that they remove all hesitation from the judge’s mind and make him agree fully with one side of the case rather than the other. The proper name for this sort is ‘presumption’, ‘judgement’, or ‘opinion’. (On this, see [Clementine Canons] Book 6 on heretics: chapter ‘when stubbornness’, chapter ‘when someone has been accused’, chapter ‘of certain people’, op.cit. 34).127 A judge, however, is allowed to modify the nature and strength of his suspicion in accordance with his own judgement, as long as he takes care not to be lightminded by being far too credulous. [Jakob] Sprenger provides examples of this kind of suspicion. If, for example, someone does things in a different way from everyone else, has a different way of life, takes part in secret meetings, especially at night, or has secret friendships with people who are under suspicion, he says this gives rise to light suspicion. If someone knows that people are workers of harmful magic, visits them, gives them presents, hides them, receives them [into his house], defends them, or in any other way shows them practical favour, this, he says, gives rise to strong suspicion. If anyone does things which are associated with the ritual behaviour of workers of harmful magic—making a covenant, worshipping, sacrificing, making threats, touching or appearing in a

127

All this is based on Malleus Part 3, question 19. The Clementine Canons were issued by Pope Clement v in 1314.

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tangendo, aut dormientibus per visum apparendo, aut cubicula insensiliter ingrediendo, etc.; vel si penes eos instrumenta maleficii sint reperta, huiusmodi violentam praebere suspicionem. Levi ergo suspicione laborantibus potest indici, abiuratio etiam specialis, haeresis, de qua leviter suspecti; et si talis qui sic abiuravit, reincidat, non punitur ut relapsus. Si vero ex gravibus suspicionibus abiurasset (nam et huic abiuratio indicitur), tunc censeretur relapsus; in hac debet fieri abiuratio in genere de omni haeresi et in specie de illa de qua vehementer suspectus fuit; et tales fuere abiurationes Theodoreti et Ibae in Concilio Chalcedonensi, act. 8; si vero detur abiuratio ex suspicione violenta, tunc facienda abiuratio, ut a vere malefico, et tanquam a deprehenso exigeretur. Debent autem violenter suspecti, quando crimen fatentur et parati sunt abiurare haeresim, et redire ad sanam mentem; ad poenitentiam ab Ecclesiasticis iudicibus recipi, quod si nolint debent tradi brachio saeculari ut impoenitentes; debent praeterea cum abiuratione generali omnium haeresium, et diserta atque clara, errorum de quibus sunt suspecti, canere palinodiam, et contraria asserere, et iurare se nunquam ad abiuratos errores redituros, et haec omnia scripto libello abiurationis, propria scriptione munito, confirmare; quae cuncta ab Apostolorum temporibus recepta fuere, ut ostendit Simancas, supra num. 8. et 10. Et haec abiuratio hodie coram clero et populo fit, nec potest privatim admitti, nisi ex magna causa. Quid si qui tantum urgetur suspicione vehementi seu verisimili, detrectet abiurare? Videtur Simancas, supr. n. 13, velle eum posse tanquam contumacem et impoenitentem tradi brachio saeculari, ex cap. ad abolendam de haeret. Sed (ut ait Sprenger. supra) dictum cap. § in praesenti vero, videtur tantum loqui, non de suspectis vehementer, sed de manifeste deprehensis, contra quos constat rigidius esse procedendum; | contra hunc igitur Episcopus procedet per ex communicationem, et si in ea per annum steterit, condemnabit ut haereticum.

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vision to people while they are asleep, or entering their bedroom without their being aware of it, etc., or if instruments of harmful magic have been found in their house—he says this furnishes a violent suspicion of the kind I have been talking about. A particular abjuration, therefore, can be enjoined on those labouring under a slight suspicion of heresy when they are lightly suspected of doing this kind of thing, and if the person who has abjured this way relapses, he is not punished as a relapsed heretic. But if he has abjured after serious suspicions, (because abjuration is enjoined on him as well), he should be regarded as a relapsed heretic. In this case the abjuration ought to be made in general terms relating to all heresy and in specific terms relating to the offence of which he has been strongly suspected. (The abjurations made by Theodoret and Ibas at the Council of Chalcedon, Acts 8, were of this kind.)128 But if the abjuration is made as a result of violent suspicion, then it should be made in the form which would be demanded of someone who is genuinely a worker of harmful magic and has been arrested. But when they are under violent suspicion and confess and are ready to abjure heresy and return to their right mind, they ought to be received by ecclesiastical judges so that they can make their repentance, and if they are unwilling to do this they should be handed over to the secular arm as impenitent. They should, in addition, repeat their recantation along with a distinct and clear general abjuration of all heresies and the errors of which they were suspected, declare the opposite, swear they will never return to the errors they have abjured, and confirm all this in a written document of abjuration signed with their own hand. All this has been regular practice since Apostolic times, as Simancas demonstrates, (op.cit. supra, numbers 8 and 10.) These days this abjuration is made in front of the clergy and people and cannot be made privately except for a very good reason. What if the person who is merely under pressure from strong suspicion, or a suspicion which has the appearance of being true, refuses to abjure? Simancas seems, (op.cit. supra, number 13), to be saying that he can be handed over to the secular arm as contumacious and impenitent according to the chapter ‘in order to abolish heresy’.129 But, as Sprenger says earlier, what is said in the paragraph ‘but at present’ simply seems to talk about those who have obviously been arrested and against whom it is generally agreed there should be fairly inflexible proceedings, not about those who are under strong suspicion. A bishop will therefore proceed against this person by excommunicating him, 128 129

The Council was convened in 451, principally to deal with the heresies of Nestorianism and Monophysitism. Theodoret was Bishop of Cyrrhus and Ibas of Edessa. A decretal of Pope Lucius iii, issued in 1184.

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Porro quando maleficum Ecclesia recepit ad poenitentiam, laicus iudex posset illum apprehendere, propter damna temporalia variis illata, et propterea condigno supplicio afficere, nec teneretur Ecclesiasticus iudex impedire, quia licet eum non possit tradere, potest relinquere puniendum. Sic Sprenger. Sed de hoc plura mox sect. de absolutione. De abiuratione facienda ab iis qui confessi et fassi, qualis fuit abiuratio Doctoris Edelini, nihil peculiare occurrit; adscribam tantum historiam rei gestae, versam ex gallica narratione Enguerrani Monstreleti Chron., p. 4: ait Enguerran. anno 1453, Dominica die, quae incidit in vigil Nativitatis Dominicae, Ebroici publice in theatrum adductus, citatus voce praeconis, et condemnatus fuit sententia iudicis ad perpetuum carcerem Episcopi dictae civitatis, Magister Guilhelmus Edelin, Doctor Theologiae, Prior S. Germani in l’Haye, prius Ordinis D. Augustini, et aliarum Sacrarum familiarum religiosus, qui tentatione et suggestione hostis Tartarei, ei se manciparat, ea lege, ut concupiscentiis eius profanis et mundanis satisfaceret, et praecipue ut frueretur Nobilis cuiusdam Equestris familiae matronae amplexibus, quam ardebat; qua gratia, se obstrinxit ea servitute inimico, ut cogeretur convenire ad certum locum, quotiescunque dicto inimico collibuisset; quo loco soliti erant conventus suos agere, et dumtaxat inscenso baculo cum scopis confestim eo transferebatur. Confessus fuit idem Magister Guilhelmus sponte sua, se homagium exhibuisse inimico se offerenti praesentem in specie arietis, eique osculum sub cauda ore impressisse; et multis variisque annis postea in damnato hoc instituto vitae perstitisse. Interea omnibus in rebus quae a daemone postulasset, illum faventem auxiliatemque habuisse; donec accusatus maleficii fuerit comprehensus, et in carcerem compactus, a quo iuridicae incarcerationis tempore vis omnis hostilis evanuerit. Et per praedictam condemnationis sententiam iussus est Mag. Guilhelmus in lacum seu fossam recludi, pane et aqua deinceps alendus. In theatro vero

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and if he remains in this condition for a year the bishop will sentence him as a heretic. Furthermore, when the Church has received a worker of harmful magic as a penitent, a lay judge could arrest him because of the temporal losses various people have suffered and, in addition, punish him as he deserves. An ecclesiastical judge would not be obliged to stop this from happening because, even though he cannot hand [the penitent] over, he can abandon him to his punishment. (That is what Sprenger says, but I shall say more about this in a moment in the section on absolution.) There is nothing unusual about an abjuration’s being made by those who have confessed and acknowledged [their fault]. Take, for example, the abjuration made by Dr Edelin. (I shall copy only the story of what he did, translated from the French version by Enguerrand de Monstrelet in part 4 of his chronicle.) Enguerrand says that in Évreux, on the Sunday which fell within the vigil of Christmas Day, 1453, he was cited by a herald, brought into the theatre in front of the public, and condemned by the judge’s sentence to perpetual imprisonment in the Bishop of Évreux’s gaol. Guillaume Edelin, Doctor of Theology, Prior of St Germain-en-Laye, formerly of the Order of St Augustine, and a religious of other holy communities, because of the temptation and at the suggestion of the enemy from Hell had enslaved himself to him by the following agreement—that the evil spirit would satisfy Edelin’s profane, worldly lusts, and in particular allow him to enjoy the embraces of a well-born married woman from a knightly family, for whom he had a burning desire. If he enjoyed her favour, he bound himself in servitude to the Enemy, [agreeing] to be compelled to meet at a particular place as often as the said Enemy pleased. There they had been in the habit of holding their gatherings, and when Edelin mounted a broomstick, he was transported there straight away. This Master Guillaume Edelin confessed of his own accord that he paid homage to the Enemy, and that while he was doing this the Enemy presented himself in the form of a ram, and Edelin planted a kiss on him, under his tail. Edelin persisted in this damned way of life over the course of many different years thereafter. Meanwhile the evil spirit protected him and helped him in everything he asked for until he was accused of practising harmful magic, arrested, and thrown into prison. During the period of his judicial imprisonment, all the power he got from the Enemy vanished. According to the foresaid sentence by the judge, Master Guillaume was ordered to be shut up in an underground dungeon130 and fed on bread and

130

The Latin says lacus which, among other things, refers to a large tank, a lions’ den, or a pit, and fossa which, among other things, is a trench or a grave.

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Inquisitor fidei, voce alta et diserta oratione luculenter in memoriam reo redegit, quam olim laudabiliter et utiliter populum concionibus iuvisset, et instituisset, cum Apostolico ritu per totam provinciam fidem et legem Christi Iesu promulgaret; quo miser postea decidisset, aliaque multa idonea eum ad poenitentiam seriam inducere. Interea catamidiarus seu mitella ad infamiam depicta ornatus, populo spectandus erat propositus, accurrente multitudine magna. Sed finita concione inquisitoris, idem Guilhelmus, sciens se gravissime peccasse, et sceleribus atrocissimis Deum offendisse, gemere, et flere, et alta voce veniam a Deo; Episcopo, et Iustitia petere (addit Iaquerius, quod in terram prostratus exhibuit quandam scedulam continentem sua facinora commissa contra fidem in dicta haeresi et secta, offerendo praedictis iudicibus abiurationem), et commendavit se suppliciter precibus assistentium. Denique fuerunt illi impacti compedes ferrei, et deductus in fossam, ut ibi per poenitentiam elueret nefaria et horrenda peccata quae commiserat. Hactenus Monstreletus. Quoad formulas abiurandi varias invenias: unam in cap. Ego Berengarius de consecr., dist. 2; aliam sess. 19 Concil. | Constantiensis; aliam apud Turrecrema., lib. 4 De Eccles., p. 2, cap. 22; aliam apud Alf. a Castro, lib. 1 De iust. haeret. punit., cap. ultim.; alias apud Sprenger. d. p. 3, distinctas pro quolibet suspicionis gradu: q. 23, 24 et 25.

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water thereafter. But in the theatre, in a loud voice and a fluent address, the Inquisitor of the Faith vividly reminded the accused how he had once helped and instructed the people by preaching to them in praiseworthy and beneficial fashion when he used to teach the law and faith of Jesus Christ throughout the whole province in the manner of the Apostle [Paul], and how the wretched man had later fallen [from grace], and many other things intended to draw him to a genuine repentance. Meanwhile he was draped over another man’s shoulders and flogged, a painted mitre-shaped headdress depicting his shame [was placed on his head] to make a spectacle of him for the people, and a large crowd hurried up to see him. But once the inquisitor has finished his address Guillaume, knowing that he had sinned in a most serious fashion and that he had offended God by his appalling crimes, began to wail and weep and in a loud voice to ask mercy of God, the Bishop, and justice. [Nicolas] Jacquier adds that he threw himself on the ground and produced a document containing the offences he had committed against the Faith in the said heresy and sect and offered it to the judges as his abjuration, and humbly committed himself to the bystanders’ prayers. Finally, they riveted iron fetters on him and brought him to the dungeon so that there he could cleanse himself by doing penance for the dreadful, wicked sins he had committed. That is what Monstrelet says. With regard to various forms of words used in abjuration, you can find one in the chapter ‘I, Berengarius’ concerning the consecration [of the elements during Mass], distinction 2; another in session 19 of the Council of Constantinople; another in [Juan de] Torquemada, The Church Book 4, part 2, chapter 22; another in Alfonso de Castro, The Just Punishment of Heretics, last chapter; and others, distinguished to cope with any grade of suspicion, in [Jakob] Sprenger, op.cit. Part 3, questions 23, 24, and 25.131

131

Berengarius of Tours (c.999–1088) made a formal declaration of faith in the doctrine of transubstantiation in 1059. Cardinal Juan de Torquemada (1388–1468) wrote a Summary of the Church’s Power (‘Summa de Ecclesiastica Potestate’) which was published in Salamanca in 1550. The last Book deals with schismatics and heretics. Alfonso de Castro (1495– 1558) was a Franciscan. He identified heresy and magic as two sides of the same offence. His De Iusta Haereticorum Punitione was published in Salamanca in 1547.

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sectio xiii De purgatione Canonica. Purgatio Canonica vocatur, de obiecto crimine innocenciae ostensio secundum sacros canones facta; hanc etiam reo deferendam levi tantum suspicione laboranti voluit Sprenger, censens suspicione notabiles vocari a Pontifice illos qui quavis suspicione laborant, quae etiam est opinio Archidiaconi. Quare nutat apud me dictum, saltem modus loquendi, Simancae, volentis non esse deveniendum ad hanc purgationem, nisi cum reus publica laborat infamia, et simul crimen plene probari nequit; ea tantum ratione, quia si crimen plene probetur, damnari; si infamia non laboret publica, absolvi debeat; contra enim quis inferat: si infamia publica laboret, torquendum (iuxta alibi dicta) si crimen plene nequit probari, tunc propter infamiam, vel suspicionem debere vel abiurare, vel se expurgare. Sed de infamia assentior Simancae, hanc sufficere ad expurgationem, quando crimen amplius probari nequit; et accusator deficit in probatione, ut bene Clar. q. 63, n. 4. Non assentior, si omnem suspicionem excludat. Sed bene est quod postea etiam vehementem suspicionem admittit et totum id, quando facienda purgatio, quando non, iudicis recto arbitrio permittit, habituro personae, et circumstantiarum aliarum rationem. Expurgatorum quoque numerus ab eodem arbitrio dependet, ut et qualitas personarum, an eiusdem, an aequalis cum reo conditionis, an inferioris? Viles personae non sunt onerandae purgatione Canonica, nisi illae sponte se offerant, et dicant se posse invenire idoneos qui expurgent, et tum possent mediocres etiamsi non plane boni, admitti. Qui, cum vilis persona non sit (nam

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Section 13 Canonical purgation Purgation is called canonical when it is a demonstration, made in accordance with the holy canons [of the Church], of someone’s innocence of a crime with which he or she has been charged. [Jakob] Sprenger thought this should be enjoined on an accused person who is labouring under a suspicion which is merely slight, because he thought that the Pope calls those who labour under any kind of suspicion ‘noteworthy’ because of it. (This is also the Archdeacon’s opinion.)132 Consequently, I am not sure about what [Diego de] Simancas says—at least his way of expressing it—namely, that there is no need for this purgation to take place except when the accused is labouring under a bad public reputation and when, at the same time, his crime cannot be proved. The simple reason is that if the crime can be fully proven, he is guilty, and if he is not labouring under a bad public reputation, he should be found not guilty, because one can deduce from the contrary that if he is labouring under a bad public reputation, then torture is warranted, (in accordance with what I have said elsewhere). If the crime clearly cannot be proved, then because of the bad reputation, he ought either to deny the suspicion on oath or clear himself. But I do agree with Simancas about bad reputation [when he says] that canonical purgation is enough to clear the accused when the crime cannot be proved by any further means and the person bringing the charge lacks proof, (as [Giulio] Claro clearly puts it in his question 63, number 4.) I do not agree with him if he is excluding all suspicion, but he is right later on when he also acknowledges strong suspicion and says that he leaves it to the judge to come to the right decision about the whole thing—when purgation should be carried out and when not—and to take into consideration the individual [involved] and other circumstances. The number of those exculpated, too, will depend on the judge’s decision, and he should take into account the rank of the people involved: is it the same as that of the accused, or is it lower? Lower class people should not be burdened with canonical purgation, unless they offer to be so of their own accord and say they can find suitable persons to exculpate them. But these humble individuals could be admitted [to give evidence] even though they are clearly not respectable. When a person is not from the lower classes, (because if he were, 132

Sprenger, Malleus Maleficarum Part 3, question 19. The Pope referred to here is Gregory ix, and the Archdeacon is Guido de Baysio, (floruit second half thirteenth century), who wrote a commentary on Gratian’s Decretum.

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vilis potius esset torquendus) ad arbitrium iudicis non vult se purgare, si praesens sit, statim potest, ut contumax et convictus, puniri. Qui in purgatione deficit, pro convicto habetur, ut bene Siman. quem vide recte prosequentem hanc materiam toto illo cap. 54, cui adde Clarum supra et Menoc., lib. 2 De arbit. iud., cas. 274. De vulgaribus purgationibus, egimus tit. De sortilegiis iudiciariis, lib. 3, formulam sententiae purgationis habes apud Sprenger, q. 21, ubi etiam ritus omnes et materiam bene discutit, et adde tit. De Purgatione Canonica in Decretal., et quae dixi supra lib. 3. sectio xiv De Absolutione. Absolutio impendenda, quando vel reus obiecta crimina diluit, vel accusator ea non probavit: nonnunquam id ab accusatione tota, nonnunquam ab instantia iudicii, nonnunquam sub fideiussione prout iudici videbitur iustius et commodius. Absolutio igitur alia est diffinitiva, alia ab observatione iudicii. Diffinitiva (quae vocatur etiam a crimine, sive ab accusatione, sive absoluta) dicitur, quando reus absolvitur | tanquam innocens, quia crimen non commisit. Ab observatione seu instantia iudicii dicitur absolvi, qui absolvitur non tanquam innocens, sed dumtaxat tanquam tunc non repertus culpabilis, utputa propter iudicii nullitatem, probatiorumve defectum, et rebus ita stantibus ut tunc stabant; et haec habetur etiam pro definitiva: eatenus ut si nova iudicia non oriantur, reus iterum molestari non debeat; immo etsi orirentur, non poterit repeti, nisi intra certum tempus ad accusandum institutum, nempe decem annorum inter praesentes, viginti inter absentes. Quod si dubitetur sitne definitiva, an tantum a iudicii observatione: recurrendum ad acta. Si habetur absolvimus ab observatione iudicii, vel ab hactenus deductis, vel stantibus rebus pro ut stant, aut similia seu aequivalentia verba, tantum censetur absolutus ab insta-

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he could be tortured), and is not willing to exculpate himself when a judge has decided he should, if he is present [in court] he can be punished at once on the grounds that he is contumacious and guilty. (Someone who fails to clear himself is regarded as guilty, as Simancas rightly says. See his correct presentation of this subject in the whole of chapter 54, and to this add Claro supra, and Menochio, Cases which depend on Decisions taken by Judges, case 274.) I have dealt with purgations in popular use, under the heading ‘judicial divinations’ in Book 3. You have the form of words used in the sentence of purgation in Sprenger, question 21 where he has a good discussion of all the rituals and the subject-matter, and to this, add what I have said in Book 3 about canonical purgation in the Decretals. Section 14 Acquittal An acquittal should be granted either when the accused has cleared himself of the crimes of which he has been accused or when the person bringing the charge has not proved them. Sometimes the judge will think it is fairer and more appropriate to acquit him of the whole charge, sometimes from having a ruling made against him by the court, sometimes under surety. So, one kind of acquittal is ‘definitive’, and another ‘a release from having to appear again in court’. It is called ‘definitive’ or ‘absolute’—meaning acquitted of the crime or of the charge—when the accused is acquitted as innocent because he did not commit the crime. He is said to be acquitted ‘because he need not appear in court again’, or ‘from having a ruling made against him by the court’, when he is acquitted, not as an innocent person, but simply because he has not been found guilty—for example, because the court cannot reach a judgement, or there is a lack of evidence and circumstances being as they were at the time. It is also considered to be definitive to the extent that if new pieces of circumstantial evidence do not make their appearance, the accused should not be troubled again. Indeed, even if they do make an appearance, one will not be able to bring him back into court to institute charges against him, except during a specific period of time—ten years in the case of those who live [within the court’s jurisdiction] and twenty in the case of those who do not. If there is doubt about whether an acquittal is definitive or simply one which releases him from having to appear in court again, one should have recourse to the court records. If they say, ‘we acquitted him by releasing him from having to appear in court again,’ or ‘according to the stage the trial has reached so far,’ or ‘as things stand at the moment,’ or similar or equivalent wording, it is considered he has been

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ntia iudicii. Si habetur reum absolvendum uti innocentem, non culpabilem, et huiusmodi verba alia adsint: censendus absolutus definitive. Si vero res ex actorum verbis non colligitur (verbi gratia, si tantum diceretur absolvimus reum), tunc legenda diligenter acta et videndum an constet ex actis dumtaxat crimen, non fuisse probatum, non vero crimen a reo non commissum, tum censenda tantum fuisse a iudicii observantia; si constet vel omnino non commissum crimen, vel non commissum a reo (verbi gratia, qui suum alibi bene docuit) tum habenda ut definitiva. Si ex actis adhuc res manet ambigua, tunc communior sententia et praxis est, ut habeatur tantum pro absolutione ab instantia; quod communi praxi receptum in favorem reipublicae, ut crimina puniantur, qui favor praeponderare debet, favori privato reorum. Haec ratio etiam est fundamentum opinionis receptae et generalis consuetudinis (exceptis locis paucissimis) qua, licet iuri communi scripto magis consentaneum sit, actore non probante reum diffinitive absolvi; tamen consuetudine et praxi iudiciorum invaluit, ut casu non probati criminis, sententia feratur tantum absolutoria ab observatione iudicii, ut post Covarr. et alios optime deducit Prosper, Farinacius. Et sic intellige quae scribit indistincte Sprenger. Nam quando deprehensus est vere innocens reus, iudex illi faceret gravem iniuriam, et Mortaliter peccaret, inserens in sententia eum dumtaxat absolvi ab instantia iudicii; immo tenetur diffinitive absolvere, alioqui reus tunc potest a tali sententia appellare, nec contraria consuetudo foret aequa vel toleranda. Si tamen reus non appellaret, in foro quidem externo censeretur sententiam approbasse; in foro tamen interno non auderem iudicem excusare. Non enim, quia alter vel ignarus est, vel incurius iuris sui, licuit iudici iniuriam facere, nec etiam superveniens ratificatio tollit praecedens iudicis peccatum, nisi quoad obligationem restituendi. Quae velim diligenter a iudicibus notari, pro intellectu eorum quae de hac re traduntur a Doctoribus nostris et praxi vulgata. Haec intelligenda de absolutione in eodem foro. Nam si in alio foro agatur, tum

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acquitted simply from having a ruling made against him by the court. If they say, ‘the accused should be acquitted as innocent and not guilty,’ and other words of this kind are used, it should be considered he has been acquitted definitively. But if one cannot deduce the meaning from what the records say—if, for example, the record simply said, ‘we acquitted the accused’—under those circumstances one must read the records with care and see whether one can agree from them only that the crime has not been proven, not that it has not been committed by the accused. Then one must reckon that the acquittal was simply one which released him from having to appear in court again. If one can agree that a crime has not been committed at all, or that it has not been committed by the accused—for example, he is someone who explained that he had a good alibi—then one must consider his acquittal definitive. If the meaning in the records is still uncertain, then the more common opinion and practice is that it should simply be considered an acquittal from having a ruling made against him by the court, the reason being that, by common practice, it has been assumed that for the good of the state crimes should be punished, and that this good should have more weight than the private good of accused persons. This argument is also the basic principle of received opinion and general custom, (with the exception of a very small number of places), and although it is more consistent with written law that when the prosecution does not prove its case, the accused is acquitted definitively, by courts’ prevailing custom and practice in the case of a crime’s not being proven, the sentence of the court should simply be called one which renders the accused free from having to appear in court again, as Prospero Farinacci, following [Diego de] Covarrubias and others, explains very well. This is how to interpret what [Jakob] Sprenger writes confusedly, because when an accused who is actually innocent has been arrested, a judge would be doing him a serious wrong and committing a mortal sin were he to include in his sentence that he was acquitting him only from having a ruling made against him by the court. Indeed, he is obliged to acquit him definitively, otherwise the accused can then appeal from such a sentence, and [for a judge] to do the opposite would not be fair and should not be tolerated. But if the accused did not appeal, an external court would think he was satisfied with the sentence and, as far as the internal court [of my own conscience] is concerned, I should not venture to excuse the judge, because it was not permissible for the judge to do a wrong because either he or the accused is either unaware or careless of his own right; and even when ratification is added, that does not remove the judge’s sin, except in so far as he has an obligation to make restitution. I should like judges to take careful note of these points so that they can understand what our scholars and common practice tells us about this subject. This should be understood of an acquittal in the same court,

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nec absolutio definitiva plane reum liberat. Nam absolutus in foro poli seu conscientiae, potest adhuc puniri in foro fori. Et, quia crimen nostrum est mixti fori, si absolutus in curia saeculari non fuit punitus ab ea sufficienter, et iudex Ecclesiasticus habet poenam quam infligat maiorem, eamque reus merebatur, poterit ram infligere. Contra quoque nimis leniter castigatum a curia Ecclesiastica, poterit severius, etiam ad mortem, damnare iudex | saecularis. Neque tunc censetur bis pro eodem crimine puniri, sed utraque punitio pro eadem una continuata habetur, et quia in atroci crimine versamur, et cui expiando vix ulla supplicia sufficiant; parum hic necessaria est distinctio Marantae. Sed haec sufficiant; formulam absolutionis pete a Sprengero. d. q. 20. sectio xv De sortilegiorum qualificatione, sive quae haereticalia, quae non? Post absolutionem, tractandum de condemnatione, sed quia congrua delicti poena dependet a delicti qualitate, haec necessario sectio praemittenda fuit; non ratione Lamiarum seu Strigum, quarum crimen semper cum haeresi coniunctum est, ut docet experientia; sed ratione quorumdam Sortilegiorum minus atrocium, et in quibus pactum solummodo tacitum reperitur. Procedamus per brevia axiomata. Axioma primum: Sortilegia haeretica dicuntur omnia in quibus daemon invocatur ad faciendum, vel indicandum ea quae vel facere vel scire non potest. Hoc est certum, quia haereticum est illum credere posse facere vel scire, quae neque scire neque facere potest, sed Deo sunt reservata. Dixi haeretica, non haereticalia, nam haereticale significat tam

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because if the trial takes place in a different court, a definitive acquittal clearly does not set the accused free since, even though he has been acquitted in the court of Heaven or the court of conscience, he can still be punished in a worldly court; and because the crime I am dealing with is one of mixed jurisdiction, if he has been acquitted in a secular court and has not been adequately punished, and an ecclesiastical judge has a greater penalty he can inflict and the accused deserves it, the judge will be able to inflict it. On the other hand, a secular judge will be able to pass a more severe punishment, even that of death, on someone who has been punished far too lightly by an ecclesiastical court. This does not mean he is being punished twice for the same crime. Each punishment is considered to be one and the same—a continuation of the other—and because we are directing our attention to a dreadful crime and hardly any punishments can be enough to expiate it, the distinction [between them] made by [Roberto] Maranta is not really necessary in this case.133 But I have now said enough on this subject. Look at what [Jakob] Sprenger gives as the form of words of an acquittal.134 Section 15 The nature of acts of fortune-telling [sortilegiorum]. Which of them are conducive to heresy and which are not? Now that I have dealt with acquittal, I must deal with condemnation. But because the appropriate punishment of an offence depends on the nature of the offence, this section needs some preliminary remarks, not with reference to children-killing witches [lamiarum] or shape-changing witches [strigum] whose crime is always conjoined with heresy, as experience tells us, but with reference to certain kinds of less dreadful fortune-tellers in whom one finds simply a tacit pact. Let me continue with some short axioms. First axiom: All acts of fortunetelling in which an evil spirit is invoked to make them work, or to indicate those things the operator either cannot do or cannot know, are called heretical. This is certain because it is heretical for him to believe he can do or know things he cannot know or do—things which are reserved to God. I have used the word

133

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Roberto Maranta, (1476–1534?). His treatise on court procedure, (‘Tractatus de Ordine Judiciorum’) was posthumously published in Venice in 1555, and his guide to the practice of lawyers in civil courts, (‘Speculum Aureum et Lumen Advocatorum Praxis Civilis’), appeared in Venice in 1586. Malleus Maleficarum Part 3, question 20 (225B–225D).

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quod sapit haeresim, quam quod haereticum est, et quia has duas significationes multi non bene distinxerunt, ideo etiam errarunt in hac materia. Prima ergo haec non tantum sapiunt haeresim, ut illi volunt, sed vere sunt haeretica facta, non dico sunt haereses (nam hae ab intellectu pendent, et haeresis est intellectum error), sed dico facta haeretica; sicut enim propositio haeretica est, ipsa enunciatio falsa Catholicae veritati contraria; sic etiam factum est haereticum, quod Catholicae veritati repugnat non formaliter, sed quasi materialiter, quia est materia circa quam intellectus aberrans versatur in haeretico errore, et ad factum haereticum sufficit id quod facit esse huiusmodi, ut si quis rem ita se habere pertinaciter contenderet, is vere haereticus esset: verbi gratia, rebaptizat quis eliquem, factum est haereticum, quia qui tenet posse rebaptizari, est haereticus; ad factum sapiens haeresim sufficit, ut qui hoc assereret fieri posse, quod fecit, eius propositio vere diceretur propositio haeresim sapere, non tamen vere diceretur esse propositio haeretica: v.g. si quis sacramentalia misceret usibus profanis, citra pactum expressum vel invocationem expressam daemonis, faceret factum sapiens haeresim, quia si diceret hoc fieri oportere seu licere, haec assertio saperet haeresim. Ex his puto pendere decisionem controversiae inter Barbat. et alios Iurisconsultos de iis qui daemonem invocant ad cognoscendum seu faciendum ea quae ipse facere vel cognoscere potest, a Deo non impeditus: v.g. ut revelet furta commissa, ut in amorem carnalem inducat. Quoad haec enim Barbat. censuit, horum cognitionem pertinere ad inquisitores fidei, et ea sapere haeresim manifestam. Sed alii Barbatiam reprehendunt, et cum Oldrado volunt haec non pertinere ad inquisitorum cognitionem, neque esse haereticalia, et in hac

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‘heretical’ and not ‘conducive to heresy’ because ‘conducive to heresy’ signifies something which smacks of heresy as well as being something which is heretical; and because many people have not distinguished properly between these two meanings, they have also been in error when it comes to this subjectmatter. According to the first [meaning], therefore, these activities not only smack of heresy, which is the meaning the people I mentioned attribute [to the word], but they actually are heretical. I am not saying they are ‘heresies’, because heresies depend upon the faculty of understanding, and heresy is an error made by the understanding. I do say, however, that these activities are heretical. Just as an heretical proposition is a false declaration which runs contrary to Catholic truth, you see, so what these people do is heretical, too, because it disagrees with Catholic truth, not with respect to the form of what they are doing, but with respect to its content, and if someone were stubbornly to insist that what he was doing was this kind of thing, he would actually be a heretic. For example, baptising someone else again is an heretical action, because someone who maintains it is possible to be baptised again is a heretic. For the action to smack of heresy, it is enough that the person claim it can be done, in which case it would be accurate to say that this is a claim which smacks of heresy. It would not, however, be accurate to say that the claim was heretical. For example, if someone were to mix up sacramentals in profane activities in order to make an overt pact with, or an overt invocation of, an evil spirit, that would constitute an action smacking of heresy, because if he were to say, ‘this must happen’ or ‘this is allowed to happen’, such an assertion would smack of heresy. For these reasons I think it depends on [what one thinks of] the debate between [Andreas de] Barbatia and other legal experts about those who invoke an evil spirit in order to find out, or be able to do, things [the evil spirit] is able to do or find out, provided he is not prevented by God—for example, revealing thefts which someone has committed, or seducing someone into carnal lovemaking.135 When it comes to these things, Barbatia thought that knowing about them is the job of inquisitors of the Faith, and that these things smack of manifest heresy. Others, however, find fault with Barbatia and, along with Oldrado [de Ponte], think that it is not the job of inquisitors to know these things and that they are not conducive to heresy. (Under this heading, too, are found the

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Andreas de Barbatia, (c.1400–1479), was a distinguished jurist who taught at the universities of Firenze and Bologna.

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re inveniuntur Parisiensia apud Paponium arresta contraria. Sed pro Barbatia faciunt Theologi Spineus et Pegna. | Imprimis, pertinere etiam ad Inquisitores cognitionem, dubitari nequit, cum crimen sit mixtum. Deinde non esse crimen haereticum (nisi quid aliud accedat), nec sapiens manifestam haeresim, id quoque puto, si desit daemonis invocatio expressa; sapere tamen haeresim non manifestam crediderim, quando consulitur daemon sive maleficus divinator de rebus amissis; licet enim daemon norit, ipsum tamen consulere sapit haeresim, occultam saltem; idem dicendum in philtris, quibus Magici characteres, et superstitiosa alia, pactum occultum habentia, admiscentur, sed quoad amatoria ex philtris mere naturalibus, citra superstitionem exhibita, putarim ea non sapere haeresim; quare et iudicem diligenter inspicere et considerare haec debere. Illud non dubito haeresim saltem sapere, nisi potius vere haeretici sint, Magos illos, qui credunt quod solent iactare se unitos spiritui, sive praeditos spiritu quodam excellenti, seu potenti, cuius efficacitate possint cogitationes aliorum scire (quod soli Deo reservatum) et occulta divinare, et alium ad aliquid imaginandum, ut loquuntur, necessitate, aliaque miranda, supra hominum communem potentiam facere. Quos etsi negent, necesse est vel illa non posse praestare, et tantum fingere; vel si credunt ista et faciunt, vere Magos esse, et tales quales dixi, pactum cum daemone habentes. De his sapienter scriptum a Cardinali Cusano lib. 3 De docta ignorantia, cap. 11. Non illa phantastica (nempe unio) Magorum qui hominem ad quandam naturam spirituum influentialium sibi coniecturalium, quibusdam operationibus mediante fide (hanc intelligo fiduciam quam Magi semper exigunt) adscen-

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judgements of Paris which also disagree with him.) The theologians [Bartolomeo della] Spina and [Francisco] Peña, however, agree with Barbatia.136 First, I also think there can be no doubt that it is certainly the job of inquisitors to know [about these things], since the crime is both a civil and an ecclesiastical offence, and secondly that, provided there is no express invocation of an evil spirit, it is not an heretical crime and does not smack of heresy unless something else is involved. However, I should have thought it does smack of covert heresy when an evil spirit or a worker of harmful magic, acting as a diviner,137 is consulted about things which have been lost because, although the evil spirit knows [the answer to the question], it smacks of secret heresy, at any rate, to consult him. The same can be said of philtres which are accompanied by magical characters and other superstitious things which depend for their efficacy on a secret pact. Bu in as far as things to excite love are made simply from natural ingredients and do not involve superstition, I should have thought they do not smack of heresy. Consequently, I think a judge must look at these things carefully and pay them close attention. But the people I do not doubt at least smack of heresy are those magicians [magos] who are in the habit of boasting they have become one with a spirit [spiritui], or have been possessed by some superior or powerful spirit [spiritu] by whose agency they are able to know the thoughts of others—something which is reserved for God alone— and to divine things which are hidden, and that they can make someone else imagine anything without, as they say, being able to help himself, and [that they can do] other extraordinary things beyond the common power of human beings. Even if they deny it, the fact is that either they are unable to do any of these things and make them up or, if they believe these things and do them, they really are the kind of magician I have described and have a pact with an evil spirit. (Cardinal [Nicolas of] Cusa wrote sensibly about this in Book 3, chapter 11 of his Learned Ignorance.) ‘What I have been saying is not [derived] from the passive imagination’— (uniting themselves indeed!)—‘of magicians who say that, with the assistance of faith’—(by this I understand the self-confidence magicians are always 136

137

Oldrado de Ponte, (died c.1337) is best known for his Advice and Replies (‘Consilia seu Responsa’) which was published in 1490, to which Del RÍo refers here in his marginal note. Del Río’s Parisiensia refers to the condemnation of magic and allied practices made by the Theological Faculty of the University of Paris in 1398. Bartolommeo della Spina (c.1476–1546) was a Dominican. His Treatise on Shape-Changing and Blood-Sucking Witches (‘Tractatus de Strigibus et Lamiis’) was published in Venice in 1523. Francisco Peña (c.1540–1612) was a canon lawyer and published notes on Bernard of Como’s treatise on witches (strigibus). Here specifically masculine: maleficus divinator.

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dere dicunt, ut in virtute spirituum talium, quibus per fidem uniuntur (hoc est per promissam eis fidelitatem et patientiam) plura et singularia, aut in igne, aut in aqua, aut scientiis harmonicis, apparentiis transmutationum, manifestatione occultorum et similibus efficiant. Manifestum est enim in his omnibus suductionem esse, et recessum a via et veritate. Propter quod tales ad foedera et pacta unitatis, cum malignis spiritibus taliter astringuntur, ut id quod sub fide credunt, opere ostenant in thurificationibus et adorationibus, Deo tantum debitis, quae spiritibus, quasi potentibus implere perita, et de vocalibus, istis mediantibus, magna cum observantia et veneratione impendunt. Consequuntur aliquando per fidem (intellige per non ut causam poni, sed poni pro iuxta, nam error esset credere quod fiducia illa magorum sit efficax), ipsa caduca petita, uniti sic spiritui, cui etiam, a Christo aeternaliter divisi, in suppliciis, adhaerebunt. Hactenus ille. Quando autem dubium est sintne haeresim sapientia, necne sortilegia, non pertinet ad inquisitorem iudicare aut cognoscere sintne talia vel non (verum hoc pertinet ad Theologos qualificatores), sed postquam constat ea sapere haeresim, dubitatur vero tantum an sapiant manifestam; possunt de illa qualitate cognoscere, et prominciare se iudices esse. Qualitatem vero horum factorum puto desumendam a circumstantiis et actibus, seu rebus quae admiscentur. Secundum axioma: Quaecunque fiunt sortilegia a sortilegis habentibus pactum expressum, sunt respectu operantis sapientia haeresim, etiam circa res quas daemon cognoscere vel facere potest; respectu vero operis dumtaxat, si sint circa res quas daemon cognoscere, nec facere. Ratio quia primo casu, propter foedus

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demanding)—‘and by means of a number of [magical] practices, a human being rises to the world of influential spirits whose existence he has conjectured, with the result that, by virtue of this kind of spirit, with whom [the magicians] have been united by faith’—(that is, by the loyalty and submissiveness [the magicians] have promised them)—‘they perform many remarkable wonders, either in fire or in water or in [demonstrations of] skills which are in harmony with these, by making things appear to change shape, and by making hidden things show themselves, and suchlike things. It is obvious that all these involve misleading people and leaving the [right] path and reality. Because of this, people such as these are bound to alliances and pacts of unity with evil spirits in such a way that they actively show what they believe as a result of their faith by offerings of incense and acts of worship which are owed only to God. These they expend upon the spirits with great respect and reverence, as though the [spirits] have the power to fulfil what they ask, and act as go-betweens as a result of their invocations. Sometimes, because of their faith’—(understand that ‘because of’ is used here, not as an explanatory reason, but to mean ‘in accordance with’, ‘in proportion to’, because it would be a mistake to believe that the loyalty the magicians show is efficacious)—‘they do actually obtain the transitory things they have asked of the spirit to whom they are united and to whom they will cling in their torments, even though they are separated from Christ for eternity.’138 This is what Nicolas says, but when one is doubtful whether these acts of divination [sortilegia] smack of heresy or not, it is not the job of an inquisitor to come to a decision, or find out whether they do or not—this is the job of assessor-theologians139—but once it is agreed that they do smack of heresy and there is simply doubt over whether that heresy is overt, [assessor-theologians] can identify their nature and make known that they are the judges in the case. In my opinion, however, the nature of these actions should be assessed from the attendant circumstances and from what the practitioners have done, or from the objects which have been included in those actions. Second axiom: Any kind of divination [sortilegia] carried out by diviners who have an overt pact with an evil spirit smacks of heresy as far as the practitioner himself is concerned, even when his divinations are about things the evil spirit can know or do. As far as the practice is concerned, [this is so] only if they are about things an evil spirit cannot know or do. The reason is that in the

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Nicholas of Cusa (1411–1464) produced his De Docta Ignorantia in 1440. Theologians of the Inquisition who judged the worth of a proposition which had been referred to them.

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illud, ope|rans est haereticus; secundo casu tunc tantum factum ipsum sapit haeresim. Sed quoad non habentes pactum expressum. Dico tertio: Si qui sortilegio Deum abnegent, vel adhibeant sortilegio hostias sacras, vel aliud sacramentum aut etiam sacramentalia, immo vel reliquias vel agnos Dei, vel alias res Ecclesiastico ritu benedictas et sacras; vehementer sunt suspecti de haeresi. Ratio quia tales significant se credere huiusmodi adhibita vim habere ad maleficiorum operationem. Et de hac credulitate debent examinari, et si nolint respondere, possunt desuper torqueri, et si non fateantur, ut vehementer supecti debent abiurare. Dico quarto: Si qui baptizent imagines ex qualibet materia, vel rebaptizent pueros; hoc ipso vel haeretici sunt, si putant formam vel materiam baptismi aliam esse posse, ab ea quam Christus instituit; vel sunt vehementer suspecti, etiam si negent se hoc credere. Quia tales actus natura sua prae se ferunt aliquid, quod est haeresis manifesta. Nec invenio Grillan., q. 3, n. 6, contrarium sensisse, ut illi Farinac. impingit. Idem dicendum de consecratione et baptismo librorum. Nam Magi libros suos, ut vim energiticam accipiant (sic falluntur) curant benedici per Sacerdotem aliquem, habentem stolam in collo, et aqua benedicta cum aspergillo ex herba hypericontis eos aspergentem, simulque profantem, ego te baptizo in nomine Pat. etc. et interea alia manu sacerdos tenet cereum benedictum, postea ponit libros sub mappa altaris certo loco, idque tribus certis diebus, quorum ultimo in modum crucis fascia ligat librum et recludit in loco puro

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first case, because of the pact, the practitioner is a heretic. In the second case, only the deed itself smacks of heresy, (but only as long as the practitioners do not have an overt pact.) Third axiom: If people deny God during the course of their divinatory magic [sortilegio],140 or during the course of their divinatory magic make use of sacred Hosts or some other sacrament, or even sacramental or, indeed, relics or agnos Dei or any other objects blessed and made holy by a rite of the Church, they are strongly suspect of heresy. The reason is that such people make it known that they believe that things of this kind are furnished with the power to make their acts of harmful magic [maleficiorum] work, and so they should be examined with regard to this credulousness of theirs, and if they are unwilling to answer, they can be tortured thereanent; and if they do not confess, they ought, as persons strongly suspect, to abjure. Fourth axiom: Those who baptise images made from any material, or rebaptise children, are by this very fact heretics if they think the shape or material of the thing or the person they have baptised can be anything other than that which Christ has decided it should be. They are also strongly suspect even if they say they do not believe this. The reason is that such actions, by their very nature, reveal something which is overt heresy. I do not find that [Paolo] Grillando thought the opposite, (see his question 3, number 6), as Farinacci declares he did. The same should be said about the consecration and baptism of books. In order to receive activating power, you see, (and this is how they deceive themselves), magicians [magi] take pains to have their books blessed by a priest. He wears a stole round his neck, sprinkles them with holy water, using the herb hypericum as his sprinkler, while saying ‘I baptise you in the name of the Father’, etc. While he is doing this, he holds a blessed candle in his other hand. After that, he puts the books in a particular place under the altar-cloth where they stay for three specified days, on the last of which he ties the books up with a piece of cloth [which he binds round them] in the form of

140

Del Río’s and other writers’ usage of the word sortilegium becomes clear in this and the following axioms. A sortilegus was principally a diviner, a ‘caster of lots’, but this did not preclude his practising other occult arts. His being called a sortilegus was simply an indication of the operation for which he was mainly known, or which the writer wanted to emphasise in the context, just as a strix (witch) did not always change her shape, or a lamia (witch) did not always murder small children. At the beginning of Book 5, Section 16 Del Río says he has chosen to ignore the differences between the Latin words for various magical practitioners and concentrate on what they have done, arguing that their actions are of greater importance than what they are called. This, however, has not stopped him from using the different Latin names and making distinctions between them.

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et abdito; hoc fassi magi Mantenses Paris. 1586, mense Novembri.: teste Crespeto, disc. 12. Dico quinto: Si ad res quas potest daemon facere, vel cognoscere, sciendas vel efficiendas, misceantur res non sacrae, v.g. hostia non consecrata; etiamsi super eam Sacerdos missam dicat, probabile est non esse sortilegium haereticale, quando fit a non habente expressum pactum. Putarem tamen distinguendum, nam si iste bene sentiat de praesentia corporis Dominici, et transsubstantiatione, et non praebuit hanc hostiam populo adorandam, sed vere aliam, quam elevavit, consecravit; hanc vero accessorie tantum super altare ad magicos effectus posuit; erit tantum suspectus de haeresi; si vero illa alia credidit, tunc aperte foret haereticus; si vero revera, nec credidit ista vim aliquam ad effectum magicum habere, non erit suspectus de haeresi, sed extra ordinem puniendus. Haec ita si de hac eius intentione constet, nam quamdiu non constat, mihi quidem videatur de haeresi merito maxime suspectus. Dico sexto: Quandocumque daemon invocatur per modum sacrificii vel adorationis, sapit res manifestam haeresim, quando per modum imperii, non raro idem dicendum. V.g. primo si admisceantur res sacrae; secundo, invocetur ut amicus Dei, et ei carus; tertio, si putet hoc non esse peccatum, vel saltem non grave; quarto, si petat quae daemon praestare nequit, ut suscitare mortuum, animam defuncti repraesentare, arbitrii libertatem cogere ad amandum etc., vel quae nescit ut futura contigentia, vel quae scit contingenter, ea petit doceri certo et infallibiliter; quinto, si petat quae potest daemon, sed credat eum ea posse etiam Deo non permittente; vel petat revelari praesentia aut praeterita, omnino infallibiliter. Immo si rem recta reputemus via, quia nobis omne cum daemonibus commercium interdictum; quotquot non modo per viam obsecrationis, sed etiam per viam impe|rii aliquid a daemonibus student obtinere, valde sapiunt haeresim. Illud tamen fateor, ipsius suspicionis pondus, qualitate personarum et aliis circumstantiis esse trutinandum.

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a cross, and shuts them away in a clean, hidden place. ([Pierre] Crespet tells us that magicians from Mantes-la-Jolie did this in Paris in November 1586.) Fifth axiom: If things which are not sacred—unconsecrated Hosts, for example—are included with a view to the person’s knowing or doing things which an evil spirit is able to do or know, even if a priest says Mass over the object, this is probably not an act of divinatory magic [sortilegium] which is conducive to heresy when it is done by someone who does not have an overt pact [with an evil spirit]. However, I should think a distinction needs to be made, because if he thinks correctly about the presence of the Lord’s Body and transubstantiation and has not produced this [unconsecrated] Host for the people to worship, but has actually consecrated another which he has elevated, and has placed the [unconsecrated] Host on the altar as an accessory to working magic, he will simply be suspected of heresy. If, on the other hand, he has had a different belief about those things, under those circumstances he would clearly be a heretic. If, however, he did not believe that these things actually do have any power to work magic, he will not be suspected of heresy, but ought to receive a punishment other than the usual. What I have just been saying is so, provided there is agreement about his intention because, until there is agreement, I certainly think he deserves to be suspected very strongly of heresy. Sixth axiom: Whenever an evil spirit is invoked by means of sacrifice or an act of worship, the action smacks of manifest heresy, and quite often one can say the same when he is invoked by means of a command: for example, (i) if sacred objects are included in it; (ii) if [the evil spirit] is invoked as a friend of God and someone who is dear to Him; (iii) if [the magician] thinks this is not a sin, or at any rate not a serious sin; (iv) if he asks something the evil spirit cannot do—raising a dead person, for example, bringing the soul of a dead person before one’s eyes, forcing someone to love against his or her free will, etc., or asking him something he does not know, such as what is going to happen in the future, or asking to be told reliably and infallibly things which [the evil spirit] knows only conditionally; (v) if he asks for things the evil spirit can do, but believes the evil spirit can do them, even if God does not permit it, or he asks the evil spirit to reveal the present or the past in a manner which is entirely infallible. Indeed, if we think about the situation properly, because we are forbidden to have any traffic at all with evil spirits, no matter how many things [these people] endeavour to obtain from evil spirits, not only by begging them for something, but also by commanding them, their efforts smack strongly of heresy. I do acknowledge, however, that the weight of the suspicion must be balanced by the character of the persons involved and other attendant circumstances.

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sectio xvi De poena et supplicio maleficorum. Progrediamur a levioribus. Sed notandum principio, quosdam I.C. nimis credulos Wiero medico et haeretico, magnam vim facere in distinctione nominum, venefici, malefici, incantatoris, strigis, Lamiae; quasi vero hoc iudicium ex nominibus, non gestis ac facinoribus, sit decidendum; constet iudici de re, nomina contemnat, quae rebus subduntur, non res nominibus; et sic, qui de hac materia veteres novitiique scripsere rebus ipsis nomina posthabuere; quod et ego hoc tractatu feci, pro iisdem sumens veneficos, maleficos, incantatores, sagas, striges, Lamias. Itaque hac putida diligentia praetermissa, facta nunc perpendamus. Quoad peccata sortilegii quae haeresim non sapiunt, in poena utrumque ius, civile et Canonicum eo conveniunt, quod iudicis arbitrio permittant; debere tamen iudicem arbitrio sic uti, ut canonibus legibusque se accommodet, nec eorum praescriptum transiliat temere, videlicet, nisi qualitas facti, conditio personarum, animus delinquentis, schandalum inde exortum similiave suadeant poenam intendere vel minuere; quod idem in mandantibus et consulentibus observandum, communiter receptum videtur. Solent autem iure canonico sortilegi non haereticales (ut vocant) sive sint laici, sive clerici, et ad quem-

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Section 16 The punishment and execution of workers of harmful magic Let us proceed from less important topics. Right from the start it should be noted that a number of excessively credulous legal experts believe the heretic physician [Johann] Weyer when he says it is very important to distinguish between names—a worker of poisonous magic [venefici], a worker of harmful magic [malefici], someone who uses incantations [incantatoris], a witch who changes shape [strigis], a witch who murders children [lamiae]—as if one’s opinion about them should be based on what they are called and not on what they have done and the crimes they have committed.141 So when it comes to this subject, let it be clear to a judge that he should take no notice of what these people are called, because names are less important than deeds, not deeds [less important] than names. This is why ancient and modern authors who have written on this subject have thought less of these people’s names than they have of their actual deeds, and in this treatise I, too, take ‘workers of poisonous magic’, ‘workers of harmful magic’, ‘people who use incantations’, ‘wise-women’, ‘shape-changing witches’, and ‘witches who murder children’ to refer to the same kind of people. So now that this disagreeable pedantry is out of the way, we can now turn our attention to what these people do. When it comes to the sins of magical divination [sortilegii] which do not smack of heresy, both civil and canon law are in agreement over the punishment. They leave it to the judge’s discretion. They say, however, that the judge must exercise his judgement in such a way that it accommodates itself to canon and civil law and does not heedlessly skip over their ruling—that is, unless the nature of the deed, the social position of the persons involved, the intention of the wrong-doer, the scandal arising from his action, and so forth, persuade the judge to increase or lessen the punishment, and it appears to be generally accepted that those who give orders and those who deliberate should observe the same restraint. But by canon law, magical diviners who are not ‘heretical’, (as they put it), are punished in the penitential court for what they have done

141

A marginal note tells us that he is referring to Johann Fichard, (1512–1581), an eminent Lutheran jurist, Joannes Althusius, (c.1563–1638), a Calvinist jurist, and Johann Gödelmann, another Lutheran. Del Río seems to be thinking of Johann Weyer, Conjuring-Tricks Book 2, chapter 1, even though he himself in Book 1, chapter 2 has given a list of different kinds of magical operators and their various Hebrew, Greek, and Latin names.

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cumque finem ea fecerint in foro poenitentiali puniri poenitentia xl dierum, sed cum hodie omnes poenitentiae confessario sint liberae, poterit moderari. In foro fori, si publicum crimen; olim imponebatur publica poenitentia, quam si detrectarent, vel non complerent, a communione fidelium arcebantur; hodie sublata illa publica poenitentia, Laicus non haeretica, nec haeresim sapientia conficiens, pro prima vice erit excommunicandus; si monitus perseverat, et est vilis persona, publice est fustigandus, vel in mitra chartacea dehonestandus; si honestior relegandus, vel perpetuo carceri manicipandus; consequitur autem infamia hoc crimen, etiamsi nihil horum illi iudex infligeret. Haec certum est procedere, quando ad malum finem, sed quid si ad bonum? Idem in laicis et clericis tum obtinet adhuc esse puniendos, etiamsi verba sacra admisceantur, vel cruces, etc. si sint admixta alia, ut characteres, nomina ignota, et huiusmodi observationes, quas constat nihil per se habere efficaciae ad finem illum bonum, et tunc poena est arbitraria. Quoad clericos, conficiens non haereticalia, in simplicitatem cordis et zelo bono (v.g. pro inveniendis bonis et Ecclesiae subtractis) suspenditur a divinis et ministerio altaris per annum et ultra iudicis arbitrio, secundum facti turpitudinem et criminis qualitatem; si dolo malo fecisset, deponeretur ab ordine sacro, omnibus beneficiis privaretur et in monasterium perpetuo detruderetur; immo et infamis effectus, tonsurari solet, et in modum stulti decalvari, vestibus ante et retro rescissis et decurtatis, et mox degradari, hoc est perpetuo ab altaris administratione removeri. Et quia hac in re multa et varia (proh dolor) sunt Ecclesiasticorum delicta, etiam parachorum (ad quod Epi|scopos et Archidiaconos decet attendere), breviter quaedam ex Grilland. et Farinacio, iudicibus Romanae curiae, subiungam pro clariore dictorum intelligentia. Sacerdotes qui causa vindictae seu doloris aras spoliant, aut luminaria consueta exstinguunt, vel quid simile faciunt, nocendi gratia iis quorum quasi in funus hoc impen-

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with a penance of forty days, regardless of why they did it.142 But since today all penances are decided by one’s confessor, [this punishment] can be moderated. In a secular court, if the crime was notorious a public penance used to be imposed in the old days, and if they refused to do it, or did not complete it, they would be excluded from the community of the faithful. Today that public penance has been removed. A lay person who does things which are not heretical and do not smack of heresy should be excommunicated the first time. If, after being warned, he persists and if he belongs to the lower classes, he should be flogged in public or disgraced by having to wear a paper mitre. If he is more respectable, he should be banished or sentenced to perpetual imprisonment. Loss of reputation, however, is the consequence of this crime, even if the judge has not inflicted any of this at all. These penalties certain go ahead when the intention [of the magician] was wicked. But what if his intention was good? Under those circumstances, the same obtains in the case of lay people and clerics. They should still be punished, even if they have included sacred words or crosses, etc. [in what they have done]. If they have included other things, such as [magical] characters, unknown names, and superstitious stuff of this kind which, it is agreed, have no efficacity of themselves to fulfil that good intention, the penance is left up to the person’s confessor or judge. In the case of clerics if, out of artlessness of heart and honest enthusiasm, a cleric does things which are not conducive to heresy—finding Church property which has been stolen, for example—he is suspended from his priestly office and the ministry of the altar for a year—more, at the judge’s discretion, according to the shamefulness and nature of the crime. If he acted out of wicked guile, he should be defrocked, deprived of all benefices, and locked up perpetually in a monastery. If the effect is disreputable as well, his face and head are usually shaved, as though he were a madman. His clothes are cut up and slashed front and back, and then he is degraded, that is, perpetually removed from ministering at the altar. Because there are, (the shame of it!), many different offences of this kind carried out by ecclesiastics—even parish priests, (and bishops and archdeacons need to give their attention to this)—I shall add, for the benefit of judges of the Roman Curia, a number of points made by Grillando and Farinacci so that I can make them clearer to understand. Priests who, with the intention of wreaking vengeance or causing pain, strip the altars, or extinguish the customary lights, or do something similar in order to inflict harm on [those clerics] by carrying out this office as though for their funeral,

142

The penitential court = the confessional. See further J. Goering, ‘The internal forum and the literature of penance and confession,’ Traditio 59 (2004), pp. 175–227.

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dunt officii, honore et dignitate privantur, et infames efficiuntur; si vero ex inimicitia missas defunctorum pro viventibus celebrarint (Belgae dicunt: een moortmisse), ut is pro quo sacrificium offerunt celerius moriatur, vel incurrat mortis periculum, proprii ordinis gradu deiiciuntur, et in exilium perpetuum, una cum eo qui Sacerdotem consuluit, vel hoc fieri mandavit, eiiciuntur, nisi tamen sponte de praemissis coram Episcopo vel Metropolitano se culpabiles detulerint, et de ipsis condignam peregerint poenitentiam, ut bene Grilland. ex d. cap. quicumque; fallitur tamen Grilland. dum putat, haec sortilegia non sapere haeresim; omnino enim sapiunt, quia est haeresis putare haec habere effectum huiusmodi, ideo haec pertinere censeo ad haereticalia, sicut et imaginum crucis, B. Mariae, vel Sanctorum conculcationem, et deiectionem factam dolo vel iracundia, nam quod Grilland. ait non sapere haec haeresim, falsum id esse sciunt, quotquot iconoclastarum furores norunt et execrantur. Sacerdos celebrans super rebus profanis, quae vulgo putantur aptae ad sortilegia, ut sunt hostia non consecrata, circumscripta certis notis et litteris sanguineis, ducto sanguine ex annulari digito, item cuticula, qua infantis caput nascentis est involutum, panis incoctus, sive massa cruda, vel coactus in placentam, vel lapis, vulgo dictus, calamita, beneficiis est privandus, et in carcerem detrudendus; idem dicendum si sit abusus vasis aut vestibus sacris; verbi gratia, altaris palla, calice, patina, purificatorio, tabernaculo Eucharistiae, aut reliquiarum; lapide sacrato vel eius frusto, corporali, manipulo, stola, alba, velis sanctuarii, etc., proponant huiusmodi sibi exemplum Regis Baltassaris, qui tamen

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are deprived of their status and office, and disgraced. But if, out of enmity, they celebrate Requiem Masses for the living, (in the Spanish Netherlands this is called een moortmisse), so that the person for whom they are offering the sacrifice will die faster [than he would otherwise] or run into danger of death, they are deprived of the grade of their order and driven into perpetual exile along with the person who consulted the priest or instructed him to carry this out— unless, (as Grillando correctly says in op.cit., chapter beginning ‘whoever’), of their own free will and accord, they declare themselves guilty in front of the Bishop or Metropolitan and perform a wholly deserved penance for the actions I have described above. Grillando, however, is wrong to think that these acts of magical divination [sortilegia] do not smack of heresy, because they do, all of them, since it is heresy to imagine that these actions have the kind of effect I have been talking about; and so I think they belong to the category of things conducive to heresy, just as does trampling on crucifixes or images of the Blessed Virgin or the saints, and throwing them on the ground with evil intent or in anger. After all, even though Grillando says these actions do not smack of heresy, people know it is not true, considering the number of iconoclasts’ raging furies they have come across and detest. A priest who celebrates Mass over profane objects which are popularly thought suitable for use in acts of magical divination [sortilegia]—unconsecrated Hosts, for example, which have a number of marks and characters written round them in blood which has been taken from the ring-finger: pieces of the skin which was wrapped round a baby’s head while it was being born: uncooked bread, either in a rough lump or compressed into a flat cake: or the stone commonly known as the ‘lodestone’—should be deprived of his benefices and thrown into prison. The same should happen if he has misused sacred vessels or vestments—an altar cloth, for example, a chalice, a paten, a purificator, the Eucharist’s tabernacle, or a reliquary, the consecrated stone or its enclosed relic, a corporal, a maniple, a stole, an alb, the cloth which covers a sacred object, etc.143 These people should keep in mind the example of King 143

The purificator is a cloth used by the priest after communion to wipe the chalice and paten, and his own lips and fingers. The Eucharist’s tabernacle probably refers here to a small box, rather than a large one, in which consecrated Hosts can be kept. The consecrated stone is one let into the top of the altar. It is over this stone that the canon of the Mass is said. A relic or relics will be contained within or below it. The corporal is a cloth spread under the consecrated elements during the celebration of Mass. The maniple is a piece of cloth worn suspended from the left arm of the priest, deacon, and subdeacon while Mass is being celebrated. The stole is a narrow strip of cloth worn over his shoulders by the celebrant priest. The alb is a long white garment reaching to the feet, with enclosed sleeves, worn by the celebrant priest.

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non abutebatur ad sortilegium, sed ad usum domesticum profanum, quod minus erat. Sacerdos, qui in solemni missae sacrificio, preces, quae non tendunt ad Dei cultum et salutem animae, sed potius tendunt in peccatum, obtulerit (ut ille cuius vesanum amorem fuse describit Grilland.) eodem modo puniri debet, quo praecedentes. Omnibus autem communes poenae sunt sequentes, qui consulunt divinatores, vel remedia (illicita videlicet) petunt a maleficis, in easdem incidunt Ecclesiasticas poenas, in quas et ipsi malefici aut divinatores; praeterea sunt ipso facto excommunicati, excommunicatione tamen nulli reservata; et, si sint clerici, possunt deponi, tam vero clerici, quam laici, debebant olim quinquennalem subire poenitentiam. Iure autem civili, eandem discentes ac docentes incurrunt poenam; qui Magos in domum suam vocant, causa artis exercendae, privati bonis debent in insulam deportari; qui Magos consulunt, gladii poenae subduntur: ex Carolina sanctione, et consuetudine imperii, etiamsi ob bonum finem interrogarint, vel magicis artibus aut remediis usi fuerint, exilio, vel aliter infra mortem damnantur, arbitrio iudicis. De amatoria praebentibus, dictum | lib. 3, part. 1, q. 3, sect. 2 in fin. Incantatores Serpentum, si praecantatione sua dumtaxat implorant simpliciter et devote auxilium Dei, absque alia superstitione, ut culpae, ita etiam poenae expertes sunt; si vero Diabolum invocant expresse vel tacite, erunt puniendi poenis commemoratis Sortilegorum. Ut autem queant ista discerni, advertendum ad verba ipsa, ad modum, ritum, et ordinem incantationis, quia si in eis insunt aliqua verba extranea, vel ignota nomina aut characteres, sive alia quae non conducunt per se ad effectum intentum, tota res Diabolica et superstitiosa debet censeri. Dicendum idem in caeteris remediis contra maleficia. Quoad astrologos iudiciarios, chiromanticos, et huiusmodi divinatores: si tantum praedicant eventum ut possibilem praesumptive et inclinative, non sunt puniendi, ut sortilegi; si vero praedicant, ut infallibilem vel necessarium,

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Balthasar who did not misuse these things in order to work magical divination [sortilegium], but for a profane domestic purpose, which is a lesser offence.144 A priest who offers prayers during the solemn sacrifice of the Mass, which do not relate to the worship of God or the salvation of his own soul, but rather to sin, (such as the priest whose frenzied love affair is described at length by Grillando), should be punished in the same way as those I mentioned earlier. Common to all are the following punishments. Those who consult diviners [divinatores], or seek remedies (illicit, of course) from workers of harmful magic, incur the same ecclesiastical punishments as the workers of harmful magic and the diviners. Moreover, they are ipso facto excommunicated, with no time-limit to the excommunication. If they are clerics, they can be dismissed. At one time clerics and lay people used to undergo a five-year term of penance, and by civil law those who learn and those who teach [these practices] incur the same penalty. Those who invite magicians [magos] to their home to have them exercise their craft should be deprived of their property and deported to an island. Those who consult magicians are executed. According to a decree of the Legal Code of Charles v and the customary usage of the Empire, even if they asked their questions with good intent, or if they made use of magical practices and remedies, they are sentenced to exile or to some penalty short of death at the discretion of the judge. (See what I have said in Book 3, part 1, question 3, at the end of section 2 about those who provide things to cause love.) If snake-charmers chant before they begin, simply, straightforwardly, and devoutly imploring God’s help without any other superstition, they do not incur any fault or penalty; but if they invoke the Devil, either overtly or tacitly, they should be punished with the penalties I mentioned earlier in connection with magical diviners [sortilegorum]. In order to distinguish between these two cases, one needs to pay attention to the words they use, the way they go about their work, the ritual they employ, and the form of their incantation, because if there are foreign words in it, or unknown names or characters, or anything else which is not in itself relevant to the effect they intend to achieve, the whole thing should be considered devilish and superstitious, and the same should be said of all other remedies against acts of harmful magic [maleficia]. In the case of judicial astrologers, chiromancers, and diviners of this kind, provided they merely predict an event as possible if one makes certain presumptions or if there appear to be tendencies that way, they should not be punished as magical diviners [sortilegi]. If, on the other hand, they make a

144

He used vessels taken from the Temple in Jerusalem as wine-cups and beakers, Daniel 5.2– 3.

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sunt haeretici sortilegi; et contra eos videnda Bulla Sixti v contra astrologos edita 1585. Qui praebent poculum naturale aborsus, ut venefici puniendi, non ut sortilegi, nisi sortilegia admisceant. Quando Episcopus captivum habet aliquem sortilegum haereticum, si paratus sit homo ille abiurare, et condignam subire poenitentiam, non potest eum tradere brachio saeculari, nec etiam potest acta iudicialia seu copiam processus eius ullo pacto cum iudice saeculari communicare; alioqui iure Canonico incurreret irregularitatem. Dumtaxat enim quibusdam casibus sortilegi haereticales possunt tradi brachio saeculari. Primo, si fuerint Doctores et seductores, nisi sponte sua ad Ecclesisiam redierint, et haereses abiurarint, seque contra illas strenuos praebuerint. Secundo, si sint relapsi. Tertio, si sint impoenitentes, ad quos reducuntur convicti omnia negantes pertinaciter. Quod Farinacius, d. n. 105, extendit etiam ad sortilegios qui hominem occiderunt, vel quid simile fecerunt quod iure civili morte luendum est, ut nonnisi aliquo trium dictorum concurrentium possint degradari, et curiae saeculari tradi. Sed in aliis criminibus enormibus id verum non esse postea ostendam: hac eadem sect. litt. ϒϒ. Et quando accessit ad haeresim homicidium qualificatum, aliud dicendum, mox ostendam. Formulas condemnationis quoad istos singulos, pete ex Sprengero p. 3. Mallei. Quando sunt Sortilegi haeretici, aut haeresim sapientes, contra eos agi sicut contra haereticos, receptum est utroque iure; quando non sunt tales, sed ab omni errore haeretico alieni, a saeculari etiam magistratu solent virgis caedi, ad triremes, vel in exilium mitti, vel alia extraordinaria, infra mortem poena, affici, interdum etiam pecuniaria, iuxta personae et criminis qualitatem.

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prediction as though it were infallible and must come true, they are heretical diviners, and one should see what the Bull of Sixtus v against astrologers, published in 1585, has to say against them.145 Those who provide a natural draught to procure an abortion should be punished as poisoners [venefici], not as magical diviners [sortilegi], unless they involve magical divination as well. When a bishop has an heretical diviner in custody, if the man is prepared to abjure and undergo the penance he deserves, the bishop cannot hand him over to the secular arm, nor can he share the judicial records with a secular judge, or give him access to the trial in any way, otherwise he would be committing a breach of canon law. Still, in certain cases magical diviners who are heretics can be handed over to the secular arm: (i) if they are scholars and have been misleading people, unless they return to the Church of their own accord, abjure their heresies, and strenuously conduct themselves in opposition to them; (ii) if they are relapsed [heretics]; (iii) if they are impenitent and, after being found guilty, repeat everything they strenuously deny doing or believing. In his op.cit. number 105, Farinacci also extends this to magical diviners who have killed someone, or who have done something similar for which, according to civil law, they should suffer the death penalty, in which case they can be degraded in one of the three concurrent ways I mentioned and handed over to a secular court. (Later on, however, in this section, at the letters yy, I shall point out that this is not true in the case of other appalling crimes. For the form of words used in sentencing these individuals, see [Jakob] Sprenger, Hammer Part 3.) It is the practice of both canon and civil law that when magical diviners are heretics or are tainted with heresy, one proceeds against them as one does against heretics. When they are not heretics and are not in the least tainted by any heretical error, a secular magistrate usually has them flogged, sent to the galleys, or exiled, or he inflicts another unusual punishment short of execution—sometimes even a pecuniary one, depending on the character of the person involved and the crime he has committed.

145

A reference to the Bull Caeli et Terrae which was promulgated on 5th January, 1586. (That would still be 1585 according to the pre-Gregorian calendar).

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Si mors sit alicuius maleficiati subsecuta, locum esse poenae legis Corneliae, et comburendum sortilegum, communis est sententia. Quoad Necromanticos et caeteros magos atque maleficos, solas Lamias excipientes, idem fatentur patroni Lamiarum. Sed Lamias nostras non esse eximendas numero caeterorum Magorum, communis est sententia Theologorum et Iuristarum, ut mox docebo. Fundamenta Godel. et aliorum sunt: Primo, Lamiae fatentur impossibilia; nempe se volasse ad conventus libidinem cum daemone explesse, tempestates excitasse, et huiusmodi. Respondeo: Lib. 2 ostendimus haec daemoni non esse impossibilia, et ideo fidem habendam earum confessionibus censent | Catholici communiter. Secundo, Lamiarum peccata sunt potius cogitationis, vel nudi conatus, quam facti, vel executionis: ideo ab Ecclesia puniri non deberent, nec a iudicibus aliis. Respondeo: Falsum praesupponi, progrediuntur enim in opus exterius, et in atrocioribus criminibus receptum, conatus aliquando puniendos, ut constat. Tertio, poenam minuere deberent, aetas senectutis, et sexus fragilitas. Respondeo: Senectutem non esse idoneam causam minuendae poenae in atrocioribus delictis, ut ex praxi iudiciorum, affirmat recte Iul. Clarus: deinde falsum supponunt solos senes in hoc peccatum incidere. Ut etiam falsum supponut solas mulierculas sic delinquere, quamquam nec in haeresi nec in similibus atrocioribus sexus excusat. Quarto, Lamiae debent censeri similes dormientibus, confitentur enim crimina commissa in mentis excessu, vel sopore. Respondeo: Multa sagas immo fere omnia vigilantes committere, et propter haec puniendas, ut propter pacta cum daemone, coitum cum eodem, infanticidia, segetum et iumentorum damna, etc. Immo, et quae in somnis

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If someone dies as the result of suffering from an act of harmful magic, the general opinion is that the penalty is to be found in the Lex Cornelia, and that the magical diviner should be burned.146 Those who defend witches [lamiarum] say the same with regard to necromancers and every other kind of magician and worker of harmful magic but make an exception of witches. The general opinion of theologians and legal experts, however, as I shall demonstrate in a moment, is that one should not remove modern witches from the number of any other kind of magical practitioner [magorum]. The arguments used by [Johann] Gödelmann and others are as follows. (1) The things witches claim—that they have flown to their assemblies, have had sexual intercourse with an evil spirit, have raised storms, and so forth—are impossible. My answer is that in Book 2 I have shown that none of this is impossible for an evil spirit and therefore Catholics generally think these women’s confessions should be believed. (2) The sins of witches are those of the mind or of an attempt which has no hope of being fulfilled rather than ones which are real and are genuinely carried out, and therefore a witch should not be punished by the Church or by any other judge. My answer is that this is a false hypothesis because [witches] progress [from internal thought] to external action, and from there to even more atrocious crimes, and it is generally agreed that their attempts should be punished at some point. (3) Their advanced years and the weakness of their sex should lighten their punishment. My answer is that old age is not an appropriate reason for diminishing punishment in the more atrocious offences, as Giulio Claro, relying on the practice of the courts, quite rightly maintains. Secondly, it is not true to suppose that only old people fall into this sin, just as it is also not true that only silly women [mulierculas] offend this way, and in any case a person’s sex does not excuse her or him when it comes to heresy or to similar atrocious offences. (4) Witches [lamiae] should be thought of as being like people who are asleep, because they confess that their crimes are committed while their mind has departed or while they are deep in sleep. My answer is that witches [sagae] commit almost all their offences while they are awake, and that they should be punished for them—for example, because of their pacts with an evil spirit, their sexual intercourse with him, their infanticides,

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Lex Cornelia = Sulla’s law against assassins and poisoners which passed into Roman law in 81 bc. It provided the fundamental piece of legislation thereafter which could be used in cases of magic brought before the courts. Its principal concern was with malevolent intention, rather than the particular rituals which might be used in any particular magical practice.

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gererent, culpa non carent, quia et ante somnum ea praemeditantur, et post somnum ea rata habent, et sibi in illis complacent. Quintum argumentum: pacta huiusmodi sunt imaginationes delusarum mentium. Venerius quoque coitus cum daemone, est rei impossibilis fictio. Quae de tempestatibus et damnis datis narrantur eorum excedunt potestatem, quae de translactione corporali dicunt, sunt nugae merae. Respondeo: Imprimis credendum contra seipsos ipsorum confessioni, sicut et aliis reis, deinde tam conformes omnium esse testificationes, et tam confirmatas experientia omnium populorum et saeculorum: “ut id negare, nihil sit, nisi insanire,” ut bene dictum a Silvestro: “quibus (ut ait Penna), nemo (nisi sensu careat) queat contradicere, et (ut alius quidam de grege haeretico dixit) qui hoc ausit negare, is audeat negare meridie lucere solem, et bis sex esse duodecim.” Et singula nos, lib. 2, comprobavimus. Nunc dumtaxat auctores ea confirmantes citabo. pactum istud agnoscunt et habent pro certo, tum theologi, ut post Cyprian. lib. De duplici martyrio, et D. Augustin. in capite illud 26, q. 2, tenent D. Thom. 2. 2, q. 95 et 96, Alex. Halens. part. 2. q. 184, Albet. Magn. in 2, d. 7, art. ult., Petrus de Tarantasia (qui postea fuit Innocen. v) ibidem, Petrus de Bonaventura, ibidem., Guido Carmelita, in speciali q. quam de hac re composuit iussu Papae Ioan. xxii, Scot. in 4 d. 34, Gabr. in 2 d. 8, q. 2, art. 4, S. Antonin. 2 par. tit. 12, Guilhelm. Parisien. in Tract. de fide et legibus, Silve. Tabie. Angl. Armill. Grafiis, in ver. superstitio et ver. maleficium, Gerson. in 1 part. Trilegio Theologisatae Astrologiae, Ioannes Tritthemius harum rerum nimis peritus, in qq. a Maximiliano Caesare propositis, Franc. Victoria Relect. de Magia, Alfons. a Castro, libro primo De iusta haeret., punit. cap. 15, Eymericus, Direct. inquisit., cap. 43 et ibi Penna, comm. 68, Bernard. Comens. in Disputatione post Lucernam Inquisitorum, Sprengerus in Malleo, Niderius in Formicario, Hollenus in Preceptorio, Basinus libro De Magicis, Bartolom. Spinaeus, Contra Ponz. inibium, Silvest. Pieras, lib. De strigimag. et daemon admirand., Franc. Picus, Dialogo strix, Iaquerius, in Flagello haeret.,

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the damages they inflict on crops and farm animals, etc. Moreover, what they do while they are asleep is not free from blame, because they thought about these things before they went to sleep, and after they have been asleep they have the notion they have done them and are perfectly happy at having done them. (5) To the argument that pacts of this kind are the fantasies of deluded minds, that sexual intercourse with an evil spirit, too, is an impossible fiction, that what they tell people about storms and doing damage is more than they have power to do, and that what they say about being carried bodily from one place to another is mere twaddle, I reply first that one should believe a confession which they make against themselves, just as one does in the case of other accused persons, and secondly that they all give similar evidence which is confirmed by the experience of people everywhere and in every age. ‘To deny this is nothing more than insanity,’ as [Francesco] Silvestri puts it very well; ‘no one,’ as [Francisco] Peña says, ‘unless he lacks intelligence, can contradict these points’; and, as one of the heretic herd has said, ‘a person who has been rash enough to deny this is rash enough to deny that the sun shines at midday and that twice six makes twelve.’ (I have also verified each of these points in Book 2.) Now I shall simply cite authors who confirm these points. Those who recognise the pact and regard it as an assured fact: theologians. After St Cyprian, The Two Kinds of Martyrdom, and St Augustine, the chapter 26, question 2 which I have cited before, St Thomas [Aquinas], [Summa Theologiae] 2.2, questions 25 and 26; Alexander of Hales, part 2, question 184; Albertus Magnus in 2, distinction 7, final article; Pierre de Tarentaise, who later became Innocent v, ibid; Peter of Bonaventura, ibid; Guido [Terrena], the Carmelite, in the particular investigation which, by order of Pope John xxii, he wrote on this subject; [Duns] Scotus in 4, distinction 34; Gabrieli, in 2, distinction 8, question 2, article 4; St Antoninus [of Florence], paragraph 2, heading 12; Guillaume d’Auvergne in his treatise on faith and the laws; [Francesco] Silvestri; ‘Tabiena’; Angelus; ‘Armilla’; Grassis on the word ‘superstition’ and the word ‘harmful magic’; [Jean] Gerson, A Trilogy of Theological Astrology, part 1; Johannes Trithemius, who was remarkably knowledgeable in these matters, in Questions Posed by the Emperor Maximilian; Francesco de Vitoria, lecture on magic; Alfonso de Castro, The Just Punishment of Heretics, Book 1, chapter 15; [[Nicolas] Eymeric, The Inquisitors’ Handbook, chapter 43 and Francisco Peña’s commentary 68 on it; Bernardo da Como in the argument after The Inquisitors’ Lantern; [Jakob] Sprenger in The Hammer; [Johannes] Nider in The Ant-Hill; [Gottschalk] Hollen, The Instruction of Divine Law; Bernardo Basino, Magical Practices; Bartolomeo della Spina, Against Ponzinibio; Silvester [Mazzolini] da Prierio, The Marvels of Witch-Magicians; Gianfrancesco Pico [della Mirandola],

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Ioseph Angl. in 2 Quaest. de Magia., et novissime Sebast. Michaëlis in Pneumalogia, Crespectus, De odio Satanae in homines, et Petrus Binsfeld. part. 1 De confess. maleficar. praelud., n. 7, Cardinal Toletus, | libro 4. Summ. instruction. Sacerdot., cap. De magica 15. Idem est iuristis asseruere, Grillan. libro 2 De sortileg. quaest. 3, Martin. de Arles, Tract. de superstit. a n. 85 post veteres, Ioan. Andreae, in cap. accusatus § sane de haeret. in 6, Archidiac. Ioann. Monach. Guilhelmum. De monte Lauduvo et Bartolomaeum Raymundi, ibidem, et satis fatetur Oldrad. cons. 210, item Turrecremata in c. illud 26, q. 2, Berber in Viatorio iuris tit. de sortileg., Simancas in pract. c. 11, et in Institut. Cathol., Damhaud. in Practat. crim., Navarr. in Manul., cap. 11, n. 25, et in cap. numquid Cain. de poen., d. 1, Menoch De arbit. iudic., cas. 388, Farin. Prax. crim. q. 20, Florimund. de Remundis, De Antechristo, cap. 7, n. 5. Nic. Remig. Opere de daemonolat. Quodque caput est expresse hoc docet Ioann. xxii in sua Extravag. super specula. Et quia contra haereticos agimus etiam ex ipsis hoc accurate docent, Lamb. Danaeus, Dialog. de sortiariis, Ioam. Bodin. lib. De daemonom., Thomas Era-

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The Witch [Strix]; [Nicolas] Jacquier, The Scourge of Heretics; José Anglés, Questions about Magic, 2; and most recently, Sébastien Michaëlis, Pneumologie; [Pierre] Crespet, Satan’s Hatred of Human Beings; Peter Binsfeld, The Confessions of Magical Diviners, Part 1, preface to no. 7; and Cardinal [Francisco] de Toledo, A Compendium of Instructions for Priests, Book 4, chapter 15 ‘on magic’.147 Legal experts say the same: [Paolo] Grillando, Divinations, Book 2, question 3 and Martin de Arles, Treatise on Superstition from no. 83. They follow the old authors Giovanni d’Andrea, chapter ‘after being accused’, paragraph ‘undoubtedly concerning heretics’ in 6; the Archdeacon; Jean le Moine; Guillaume de Montlauzun and Bartholomaeus Raimundus likewise; Oldrado [da Ponte] gives an adequate account in Advice 210, as does [Juan de] Torquemada in the chapter 26, question 2 which I mentioned earlier; Jean Barbier, RoadMap, or Guide to the Law; [Diego de] Simancas, [Theory and] Practice of Heresy, chapter 11, and Catholic Institutions; [Joost] Damhouder, The Practice of Criminal Law; ‘Navarrius’, Manual [ for Confessors and Penitents], chapter 11, no. 25; [Giacomo] Menochio, Cases which Depend on Decisions taken by Judges, case 388; [Prospero] Farinacci, The Practice [and Theory] of the Criminal Law, question 20; Florimon de Raemond, Antichrist, chapter 7, number 5; and Nicolas Rémy, The Worship of Evil Spirits. This is also a topic John xxii expressly tells us about in his Bull, Super illius specula; and (because I am controverting heretics from their own writings, too), Lambert Daneau, Dialogue against Casters of Lots; Jean Bodin, The Madness of Evil Spirits; Thomas Erastus, in his dialogue ‘Furnius’; Georg Pictorius, in the decision, Whether wise-women should be con-

147

Guido Terrena, (c.1270–1342), a Catalan, was Prior-General of the Carmelites and also held two bishoprics; ‘Tabiena’ refers to a large encyclopaedia of moral theology and canon law published in 1516 by Giovanni Cagnazzo, who was Inquisitor of Bologna from 1494 until 1513; ‘Angelus’ may refer to Angelus de Dobelin, (c.1350–c.1420), who was Professor of Theology at the University of Erfurt; ‘Armilla’ may refer to a summary of cases of conscience by Bartolommeo Fumo, (died 1545); ‘Grassis’ may be Antonio de Grassis (died 1491), a canon lawyer. Bernardo Basino, (1445–c.1510), was a canon of the cathedral in Zaragoza and published a book on magical practices and the malefices of magicians in 1483; José Anglés, (died 1588), was a Franciscan theologian and Bishop of Bosa in Sardinia from 1586 until his death. His principal work was Flowers of Theological Questions in Regard to the Fourth Book of Sentences.

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stus, in Furnio, Georg. Pictorius, in Resolut. an sagae ignis mulcta damnandae. Hotoman. Cons. 98. de venerio coitu succuborum et incuborum, hoc tenent cum Innocent. viii Pontif. in bulla de hac re edita, et plurimis Sanctis Patribus Alexand. De Hal., 1 part., q. 78, D. Thom., D. Bonau., Scot., Dur., Gab., Dionys. Cartusian. in 2, d. 8, Guill. Paris. De universo part. ult. capit. 23, Abulens. in 6 Genes. q. 6 et in 7. Exod. q. 12, Alfons. a Castro, supr. cap. 16, Caietan. in 2. 2., q. 96, art. 3, Sixtus Senens. lib. 5 Sanct. biblioth. anno 73, Bartolom. Med. 1.2., q. 72 a. 2, Spreng. Nider., Silvest., Pic., Holens., Spin., Victor., Mich. Cresper., Totel., Angl. Binsf., Comens. Iaquerius, supr. citati, et Ulricus Molitor, in Dialo. cum Sigismundo cap. 5 et 6. Ex Iuristis: Martin. de Arles sup. Grill. lib. 2 q. 7, Simanc. et Remig. supr. et locorum omnium acta de hac re iudiciaria. Nec non praedicti quinque haeretici; et ipsemet Lutherus, in Convivialibus, ut appareat mendacium Fichardi, hoc attribuentis solis inquisitoribus et Papatui addictis, ut ille loquitur. de grandine tempest. etc. huiusmodi, quae probantur omnino a Theologis, arg. cap. 1 Iob, ubi D. Thom. et Cartusian. idem docuere Partes, in cap.

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demned to be burned; and [François] Hotman, Advice 98, are accurate in what they say about this.148 In the Bull he published dealing with the subject, Pope Innocent viii and most of the holy Fathers [of the Church] defended the notion of sexual intercourse with succubi and incubi—Alexander of Hales, Part 1, question 78; St Thomas [Aquinas]; St Bonaventure; [Duns] Scotus; [Guillaume] Durand; Gabrieli; Denys [van Leeuwen] the Carthusian, 2, distinction 8; Guillaume d’Auvergne, The Universe, end of chapter 22; Alonso Tostado, [Commentary] on 6 Genesis, question 6 and on 7 Exodus, question 12; Alfonso de Castro, on chapter 16; [Thomas] Cajetan, on [Aquinas] 2.2, question 96, article 3; Sixtus of Siena, The Holy Library, Book 5, year 73; Bartolomé de Medina, 1.2, question 72, article 2; [Jakob] Sprenger; [Johannes] Nider; [Francesco] Silvestri; [Gianfrancesco] Pico [della Mirandola]; Gottschalk Hollen; [Bartolommeo della] Spina; [Francesco] de Vitoria; [Sébastien] Michaëlis; [Pierre] Crespet; [Francisco de] Toledo; [José] Anglés; [Peter] Binsfeld; [Bernardo da] Como; [Nicolas] Jacquier; and Ulrich Molitor’s dialogue with Sigismund, chapters 5 and 6. Among legal experts, [you have] Martin de Arles, [Paolo] Grillando, [Diego de] Simancas, and [Nicolas] Rémy, and judicial records everywhere noting this topic. The five heretics I mentioned just now accept it, as does Luther himself in his Table Talk, so when [Johann] Fichard says this should be attributed only to inquisitors and devotees of the Papacy, he is telling a lie.149 Hailstorms and other things of this kind. Theologians prove that [stories about these] are entirely credible when St Thomas [Aquinas] and [Denys van Leeuwen] the Carthusian talk about chapter 1 of the Book of Job. The Fath-

148

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Giovanni d’Andrea (1270/1275–1348), was an Italian expert in canon law; ‘the Archdeacon’ may refer to Guido de Baysio (died 1313), a canonist whose principal work was a commentary on Gratian’s Decretum and also a compilation, A Rose-Garden of Decrees and was appointed Archdeacon of Bologna by Pope Boniface viii; Jean le Moine (c.1250–1313), was a jurist, Bishop of Arras, and later a cardinal. He wrote a gloss on the Liber Sextus which is a collection of decretals commissioned by Boniface viii in 1296. Guillaume de Montlauzun, (active 1305–1343), was a Cluniac theologian and a canonist. Like Le Moine, he wrote a commentary on the Liber Sextus. We know nothing about Bartholomaeus Raimundus; Jean Barbier published the book here cited in 1528. Thomas Erastus (1524–1583) and Georg Pictorius (c.1500–1569) were both physicians. Erastus’s ‘Furnius’, a dialogue between himself and an alchemist, comes from his Part One of Disputations about the New Medicine of Philip Paracelsus which was first published in 1572. Denys van Leeuwen (1402–1471), was one of the most significant theologians of his time, and a prolific writer as well as a mystic. Bartolomé de Medina (1527–1580), was a Dominican and Professor of Theology at the University of Salamanca. Johann Fichard (1512– 1581), was a German jurist. Del Río may be referring to his Consilia which was published posthumously in 1590.

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nec mirum 26 q. 5, D. August. lib. 8 De civitat. Dei, cap. 19, Isidor. lib. 8, Etymol. cap. 9, Innoc. in bulla sua ad Inquisitor., D. Thom. et caeteri Scholiast. in 2, d. 7, et 8, Castrens. Silv. Spineus, Hollenus, Spreng., Michael. Tolet., Iaquer., Nider., Victor. Angl., Binsfeld. et alii citati. Ex Iuristis: consentiunt Simancas, Menoch. et Damhauder. et Remig. et Comens. citati: Azo, Godofred., Bart., Angl., Bald., Salyce in l. 4, C. de malef., ubi text. aperte hoc confirmat. Bonifacius de Vitalinis, Tractat. de malef. c. de sortileg., Ioan. ab Anan. in c. 1 De sortileg., Grilland. lib. 2, q. 6, Francisc. Balduin., Iacob. Raevardus et alii ad ll. xii. tab., Pet. Gregor. lib. 34 Syntagm. Iuris universi, cap. 11 et cap. 13, Petr. Matth. in 7 Decretal. titul. De malef. et incantat. Necnon tres illi haeretici quos nominavi, et Lutherus Archihaereticus. De translatione corporali eam per daemones fieri posse et solere ex patribus docent Clemens, lib. 6 Constit. Apostol., cap. 9, Arnob. lib. 2 Cont. gent., Egesip. lib. 3 De excid. Hier., Cyril. Gieros. Cateches. 6, Maximus Taurin. Serm. de Natali Apostol., Epiph. lib. 1 Contra haeres., 30, Gregor. lib. 1 Dialo., cap. 4. Et

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ers said the same thing in the chapter ‘nor is it surprising’ 26, question 5. [See also] St Augustine, City of God Book 8, chapter 19; St Isidore [of Seville], Etymologies Book 8, chapter [9]; Innocent [viii] in his Bull to the inquisitors, St Thomas [Aquinas] and all the other interpreters on 2, distinctions 7 and 8; [Alfonso de] Castro; [Francesco] Silvestri; [Bartolomeo della] Spina; [Gottaschalk] Hollen; [Jakob] Sprenger; [Sébastien] Michaëlis; [Francisco de] Toledo; [Nicolas] Jacquier; [Johannes] Nider; [Francesco de] Vitoria; [José] Anglés; [Peter] Binsfeld; and the others I have cited. Among legal experts there is agreement by [Diego de] Simancas; [Giacomo] Menochio; [Joost] Damhouder; [Nicolas] Rémy; and [Bernardo da] Como, whom I have already cited; Azo [of Bologna]; [Denis] Godefroy; Bartolo [da Sassoferrato]; Angelo [degli Ubaldi], Baldo [degli Ubaldi]; [Bartolomeo da] Saliceto in Book 4, chapter on harmful magic, where his text clearly confirms this point; Bonifacio Vitalini, Treatise on Harmful Magic, chapter on divinatory magic; Giovanni d’Anania, chapter 1 on divinatory magic; [Paolo] Grillando, Book 2, question 6; François Baudouin; Jacob Reyvaert; and others on the laws of the Twelve Tables; Pierre Grégoire, Treatise on Universal Law, Book 34, chapters 11 and 13; Pierre Matthieu in Septimus Decretalium under the heading ‘harmful magic and incantations’; and the three heretics whose names I have given already, along with Luther, the arch-heretic.150 With regard to physical transportation: that evil spirits can and commonly do this is taught by Fathers [of the Church]: Clement [of Alexandria], Apostolic Constitutions Book 6, chapter 9; Arnobius, Against Heretics Book 2; Hegesippus, The Destruction of Jerusalem Book 3; Cyril of Jerusalem, Catecheses 6; Maximus of Turin, Sermon on the Feast-Day of the Apostles; Epiphanius [of Salamis], Against the Heretics Book 1, no. 30; and St Gregory, Dialogues Book 1, 150

Azo of Bologna (c.1150–1230) wrote marginal notes and explanatory comments on Justinian’s Corpus Iuris Civilis. He is known for his textbook on Roman civil law, written between 1208 and 1210. Denys Godefroy (1549–1622) produced a new edition of the Corpus Iuris Civilis in 1583. Angelo degli Ubaldi (1347–1400) wrote commentaries on the Corpus Iuris Civilis. Bonifacio Vitalini (c.1320–c.1388), also known as Bonifacio Antelmi. A work on criminal offences, including acts of harmful magic, Super Maleficiis, appeared over his name in the early sixteenth century. Giovanni d’Anania (c.1545–c.1609) published a book on the character of evil spirits (‘De Daemonum Natura’) in Venice in 1570. François Baudouin (1520–1573) published commentaries on Roman law, as well as treatises dealing with aspects of the history of Christianity. Jacob Reyvaert (1534–1568) taught both Roman and canon law at Douai in 1565. He wrote several books, including one on the Twelve Tables and another on ambiguities in Roman law. Pierre Matthieu (1563–1621) was a jurist from Lyon. His book, with a remarkably long and awkward title, was a collection of legal texts and commentaries. It was published in 1590, but later put on the Index of Prohibited Books.

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alia exempla suggerit Ioann. Caesarius Monachus Cisterciensis, lib. 5, cap. 27, 34, 56 et quae his addunt Bart. Spinaeus, Contra Ponzinib., Grillandus, Castrius, Remig. et Binsf. a me citati. | Est ista communis sententia Theolog. et Iurist.: S. Thom., Scot., Dur., Caiet., Silvest., Angl. Victor. Castrii, Sprengeri, Niderii, Iaquerii, Michaëlis, Crespeti, Toleti, Spinaei, Pici, Guill. Paris. Binsfeldii, et aliorum citatorum; Turrecr. in cap. Episcopi 26 quaest. 5, Grill. De sortileg., q. 7, Pennae sup. d. comm. 68, ubi citat Commens. et Albert. De agnoscend. cathol. assertion., q. 24, n. 24, et vocat hanc sententiam communem Theolog. et veram, ut est revera. Nec ei repugnat Navarr., cap. 11, Manual. n. 38, nam voluit solummodo negare eas vehi, cum illis circumstantiis, quae exprimuntur in d. cap. Episcopi. Ratum ergo maneat, quintum hoc argumentum plane falsis praesuppositis niti. Mire tamen circa hanc delusionem Lamiarum pertinaces sunt earum occulti quidam Patroni. Arripiunt occasionem ex d. cap. Episcopi (de quo nos mox copiose et luculenter disseremus). Quia delusas Herodianas illas Canon asserit, sic ratiocinantur: si illae delusae, ergo et nostrae striges. At quia homines, alias nec inepti nec insulse stolidi, animadvertunt non satis valide inferri. Ergo saltem (inquiunt) possunt etiam deludi. Unde igitur cum aliqua in iure sistitur, iudici constabit eam non delusam, quae potuit? Nequit dissimulem, in vobis ipsorummet argumentationem ad me a V. Cl. Phil. Numanno Secretario oppidi Bruxellensis in Brabantia, poetica arte, sed pietate clariore, cui cum illis quotidianae velitatiunculae pro veritate, praescriptam: “Manifestum est (inquiunt) Doctores de materia sagarum scribentes ad unum omnes hoc admittere, quod mulierculae a daemone saepe illudantur ac decipiantur; ita ut per imaginationem cogitent, et credant certe se perpetrasse ac fecisse veraciter, ea quae tantum in sola phantasia opera Diaboli mentem obfuscantis obversata sunt. Non satis tuto ergo agere iudices, quando confessionibus sagarum sive voluntariis, sive per vim extortis, fidem adhibentes, easque pro sufficientibus habentes,

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chapter 14. Johann Caesarius [of Heisterbach], a Cistercian monk, suggests other examples, and others are added by Bartolomeo della Spina, Against Ponzinibio; [Paolo] Grillando; [Alfonso de] Castro; [Nicolas] Rémy, and [Peter] Binsfeld, all of whom I have cited. This is an opinion commonly held by theologians and legal experts: St Thomas [Aquinas], [Duns] Scotus, [Guillaume] Durand, [Thomas] Cajetan, [Francesco] Silvestri, [José] Anglés, [Francesco de] Vitoria, [Alfonso de] Castro, [Jakob] Sprenger, [Johannes] Nider, ]Nicolas] Jacquier, [Sébastien] Michaëlis, [Pierre] Crespet, [Francisco de] Toledo, [Bartolommeo della] Spina, [Francesco] Pico [della Mirandola], Guillaume d’Auvergne, [Peter] Binsfeld, and others I have cited: [Juan de] Torquemada on the canon Episcopi 26, question 5; [Paolo] Grillando, Divinations, question 7; [Francisco] Peña op.cit. supra where he cites [Bernardo da] Como and [Arnaldo] Albertini, and calls this the common, accurate opinion of theologians, as indeed it is. Navarre [Martín de Azpilcueta] does not object to it in chapter 11, number 38 of his Handbook because he simply wanted to deny that the women are conveyed in the ways and under the circumstances described in the canon Episcopi. So let us continue to think that this fifth argument clearly depends on presuppositions which are not true. A number of these women’s secret protectors, however, are amazingly obstinate on the subject of this delusion witches have [lamiarum]. They take their cue from the chapter in the canon Episcopi which I mentioned. (I shall discuss this lucidly at length in a moment.) Because the canon maintains that these female followers of Herodias are deluded, [their protectors] come to the conclusion, ‘if those women were deluded, so are modern witches [strigae].’ But because people who are not otherwise foolish or completely stupid notice that the inference is not a very good one, they say, ‘Well, at least it is possible they are also deluded.’ So, when a woman is produced in court, how then will it be clear to the judge that she is not deluded when she could have been? To show I am not making this up, here is the proof adduced by these people. It has been put in writing for me by the Most Illustrious Philip Neumann, the Town Clerk of Brussels in Brabant, a man famous for his skill in poetry, but even more so for his religious devotion, who for the sake of truth puts up with their daily bickering. ‘It is clear that learned men who write on the subject of witches [sagarum] all agree on one point—that the silly women are often deluded and deceived by an evil spirit to such an extent that, because of a mental picture they have, they think and believe they really have carried out and done things they have seen merely in their passive imagination, things which have been caused by the Devil’s clouding their rational mind. Judges, therefore, must be wary of putting faith in witches’ [sagarum] confessions, (whether these have been made voluntarily or extorted by force), and considering these as sufficient proofs, and

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probationibus, miseras illas, ac forte insontes suppliciis tradunt, quae, cum deceptae sunt negare non possunt, ea quorum se re vera reas putant. Quamobrem cuiuis iudici merito scrupulus nascatur. Quia confessio in hac re pro sufficienti probatione haberi non debeat; cum fieri possit, ut ex errore deceptae mentis procedat confessio. Quo igitur pacto iudex poterit dinoscere. Utrum in individuo reus reave, quae ei offertur, si per imaginationem delusa, vel vere commiserit quae fatetur.” En Rhodus, en saltus, qui non agnoscat argumentum Wieri, cuius venenum Calidius Looseus, in Alemannia haustum et eiuratum, in Belgium, praesertim Bruxellam diffudit, ut antidotum propinem tam periculose potis, primum nebula raticinationis, seu vaporis noxii exhalatio, removenda. Nempe praetexitur praetensio scrupuli ex confessione falsa et erronea, quam contendunt esse quando ex nuda confessione proceditur. Quis umquam asseruit (non ego quidem usquam) soli standum confessioni? Censui semper et profiteor in hoc crimine ex nuda et sola confessione rei procedi non posse, cum Bald. et Angel. in lib. 1 cap. de confess., quia ex tali non videtur satis iudici constare certo posse de crimine, quod tamen necessarium est ad condemnandum, ex sententia communiore: arg. lib. 1 § item illud et ibi Bart. D. ad Syllania. Sed contendo paralogismum latere in hac solius nudae confessionis nuncupatione. Et ideo, ut in omnibus aequivocis, esse necesse prius disquirere, quid vocem nudam confessionem. Si de con|fessione legitima et rite facta loquuntur, in qua et adfuere indicia (alioquin nulla foret) et reliqua de quibus disserui supr. lib. 5, sect. 11, certum est ac manifestum eos alucinari. Nam leges humanae

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of handing over to torture those wretched, and perhaps innocent women who, since they have been deceived, are in no position to deny them and think they really are guilty of these things. In consequence, any judge must make sure he is properly scrupulous, because a confession in relation to this matter should not be considered sufficient proof, since it is possible it is proceeding from a mistake made by a mind which has been deceived. Consequently, how will the judge be able to discern whether the accused man or woman standing in front of him has been deluded by a mental image, or has actually done what he or she is confessing?’ Here is a man of Rhodes!151 Here is an assault which is not aware of the argument used by [Johann] Weyer whose poison, sucked up and rejected in Germany, Calidius Loos has spread into the Spanish Netherlands, especially Brussels.152 Let me offer it as an antidote to people who are so dangerously intoxicated, principally to remove the fog or exhalation of a poisonous fog or vapour belonging to this way of thinking. There can be no doubt that the pretence of scrupulousness is given as an excuse, on the grounds that a confession is untrue and erroneous, which they maintain is the case when a trial goes ahead on the basis of a confession alone. Who has ever claimed—I certainly never have—that someone should stand trial on the basis of a confession alone? I have always thought and I maintain, (as do Baldo and Angelo [degli Ubaldi] in their passages on confession), that one cannot proceed against an accused person in connection with this crime on the basis of an unsupported, single confession, because that does not appear to be enough for a judge to be able to come to a reliable decision about the crime, and such a decision, according to fairly general opinion, is necessary if he is to find the accused guilty. (See Baldo’s and Angelo’s arguments in Book 1, paragraph ‘likewise’, and, on that subject, Bartolo [da Sassoferrato] on legislation passed by Sulla.) But I argue that there is a fallacy lying hidden in this label of ‘unsupported confession alone’ and therefore, as in all cases of ambiguity, that it is first necessary to inquire diligently what the phrase ‘unsupported confession’ means. If they are talking about a legal confession, made in the proper fashion, which contains both circumstantial evidence, (otherwise the confession would not exist), and all the other things I talked about in Book 5, section 11, it is cer-

151 152

Rhodes was famous in the ancient world for its school of rhetoric. Cornelius Loos Callidius, (1540–c.1596), was a Dutch Catholic theologian who wrote a book entitled Genuine and False Magic aimed at rebutting Peter Binsfeld’s recently published treatise on magic and witches. Binsfeld appears to have been successful in having Loos’s book suppressed and Loos was later arrested and imprisoned and obliged to recant his ideas.

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talem confessum habent pro iudicato, et in Evangelio Paterfamilias servulum nequam, ex ore eius (hoc est ex confessione) iudicat; et ex tali confessione iudiciis fulta, quae ad torturam per se sufficerent, reum damnari posse, non est dubitandum, ut merito censuit post alios Daniel Mollerus, part. 4 Constitution. Saxonicar., sect. 2, n. 13, et hoc in terminis de crimine et confessione strigum accurate probat Arnald. Albertinus, De agnnosc. assertion. haeret., q. 25, quem lege si lubet. Si de non rite facta (v.g. destituta indiciis, improbabili, vel impossibili) loquuntur, illis assentior; sed nego hoc in casu proposito locum habere. Nam quae Lamiae confitentur, non sunt impossibilia, nec improbilia peritis humanae et divinae philosophiae, sed admirabilia tantum. Probatum id a me toto lib. 2 Disquisit. Magicar. Nec umquam iudices probi ex tali nuda confessione procedunt, vel ad damnationem, vel ad torturam, vel ad capturam aut inquisitionem (vide dicta supr. sect. 2, vers. Quarto requiritur); semper enim indicia requirunt, quibus aliquando validius, aliquando imbecillius, sufficienter tamen confessio astruitur, quae indicia qualia esse debeant docui: supr. sect. 3 et 4 per tot.; et non possunt particulatim, nisi specie facti in particulari proposita, explicari. Cur ergo metuunt stare confessioni sic legitime factae? In foro poli standum est confessioni proponentis in exomologesi peccata sua, etiam absque ullis indiciis: cur non in foro fori cum indiciis? Si Dei vicarius illic peccatum non metuit, cur hic vicarios terreni Regis formidet? An temporariae poenae maior est dolor, quam aeternae, aut primae mortis gravius periculum vel damnum, quam secundae? Quid? Quod in sacramentali confessione tenetur Iudex stare rei confessioni, adeo ut si dicat se talia patrasse, non possit confessarius illum reiicere, sine pec-

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tain and obvious that what these people are saying is rubbish. This is because human laws regard someone who has made such a confession as someone who has been found guilty. In the Gospel, the head of the household finds a wicked young slave guilty ‘out of his mouth’—that is, by his own confession, [Luke 19.22]; and because of such a confession, supported by circumstantial evidence, which would be enough in itself to warrant his being tortured, there is no doubt that an accused person can be found guilty, as Daniel Moller, following others, quite rightly thought. (See Part 4 of his Constitutions of the Elector of Saxony, section 2, number 13.)153 Arnaldo Albertini, too, proves this explicitly and accurately in connection with the crime and confession of witches [strigum] in his Understanding the Claims made by Heretics, question 25. Read it, if you wish. But if they are talking about a confession which has not been made in the proper fashion—for example, it is unlikely or impossible and is not supported by circumstantial evidence—I agree with them. However, I deny that this has anything to do with the case we are discussing, because the things witches [lamiae] confess are not impossible or improbable as far as those who are skilled in human and divine philosophy are concerned—simply extraordinary. (I have proved this throughout Book 2 of Investigations into Magic.) Judges with a sense of probity never proceed on the strength of such an unsupported confession either to find someone guilty, or to have him tortured, or arrested, or investigated—(see what I said earlier in section 2 at (iv) ‘it is required’)—because they always ask for the evidence on which a confession which meets the needs of the case sometimes more strongly, sometimes more feebly, is built. I talked throughout sections 3 and 4 about what kind of evidence this should be, and these pieces of evidence cannot be explained in detail, except in the specific instance relating to something a person has confessed to doing in his or her particular [confession]. So why are these [critics] afraid to depend on a confession which has been made legally? In the court of Heaven, a case has to rest upon the confession of someone who is exposing and acknowledging his sins, even when there is no [supporting] evidence. So why not in a worldly court when [the confession] is accompanied by evidence? If God’s delegate in the court of Heaven has not committed a sin, why should the delegate of an earthly king commit one here? Is the pain of temporary punishment greater than that of eternal [pain], or the danger or harm of the first death more burdensome than that of the second? Why? Because in sacramental confession the judge is obliged to depend upon the confession of the guilty party to such an extent that if he says he has done such things, his confessor cannot, without 153

Daniel Moller, (1544–1600), was a German jurist. His book on the constitutions of the Elector of Saxony was published in Leipzig in 1595.

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cati Mortis reatu, quasi illusum; ex hoc quidem solo (quod praetexitur) capite, quod deludi a daemone aliquando tales contingat, sed tenetur ei et absolutionem et poenitentiam impendere? Igitur nec iudex fori externi, sola fretus coniectura quia deludi solent, potest strigum iuridicae confessioni fidem derogare. Quod inde etiam stabilitur, si malefici se conspirasse in reip. vel Principis perniciem faterentur; ex isto illusionis capite nullus iudex auderet eos absolvere vel dimittere; sed censeret se obligatum ad reorum condemnationem procedere, ut reorum laesae Maiestat. Et si hanc publicam iniuriam negligeret, ipse a superioribus iudicibus in ius vocaretur, ac ille ipse fisci procurator (tam somnolentus vel contemptor divinae iniuriae) nactum se spongiam crederet succi plenam, quam averet exprimere. Cur ergo segniori esse liceat in Dei iniuria, quae perspicue in maius Ecclesiae et naturae damnum vergit? Denique si in furtis, latrociniis, sacrilegiis, adulteriis, homicidiis, falsae monetae, Sodomiae etc., criminibus stari potest legitimae confessioni, cur non in hoc quoque delicto? Iniquum plane est aliam exigi certitudinem, quam quae iuxta criminis naturam potest haberi, si cuiusquam autem, certe huius criminis ea est natura, ut de eo ferme iudici aliunde nequeat constare, quam ex indiciis, praesumptionibus, et reorum confessione, eo quod | clam committatur, et saepe nulla post se sceleris vestigia relinquat. Quare hic potissimum locus est sententiae, volentium solam legitimam, quae verisimilis sit reorum confessionem in talibus delictis ad condemnationem sufficere, quam admittit Godelmannus: lib. 3 De Lamiis, cap. 10, n. 47; et tenet Mollerus, d. sect. 2 a n. 11; atque ita prius deciderat Iul. Clar. § fin. lib. 5 recept. sentent. q. 55: quomodo autem dicatur constare de delicto. Nonne sunt haereticis annumerandi isti foederati partiarii daemoniorum? Sane id communius receptum docent Grill.: q. 10, n. 10 de sortileg., et Clarus, d. q. 55, vers. potest etiam, et q. 4, v. 1, quos sequitur Moller. supr. Quis autem neget ad haereseos condemnationem sufficere legitimam confessionem, nisi qui a gravissimis iuris interpretibus temere velit dissentire? Bald. in lib. si quis non

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standing accused of mortal sin, reject what he says on the ground he is deluded, the simple reason being that such people are indeed sometimes deluded by an evil spirit. But he is obliged to give him absolution and impose a penance on him. Therefore, a judge in the external court, who bases himself simply upon a conjecture that these people are usually deluded, cannot refuse to trust a judicial confession made by witches [strigum], since this is what also provides confirmation if malefactors [malefici] confess they have conspired the overthrow of the state or the prince. No judge would dare acquit or dismiss them on the grounds that they were deluded but would consider himself obliged to proceed to find the accused guilty of treason. If he were to disregard this wrongdoing, he himself would be summoned into court by superior judges, and the very procurator fiscal, (no matter how sleepy or slighting of an injury done to God), would believe he had stumbled across a wet sponge, which he would take away in order to squeeze it dry. So why should a too-dilatory [judge] be allowed to do God an injustice which quite clearly verges upon greater harm to the Church and the world? Finally, if it is possible to rely on a legal confession in the case of thieves, highway robbers, those who commit sacrilege, adulterers, murderers, and the crimes of false coining, sodomy, etc., why not also in the case of this offence? Because of the character of the crime, it is clearly unfair to demand a certitude other than that which it is possible to have, but if one can say it of any crime, it is certainly the character of this one that a judge finds it almost impossible to come to a decision from any source other than pieces of circumstantial evidence, presumptions, and the confessions of the accused. This is because it is a crime committed in secret and one which often leaves behind no traces of itself. Consequently, in this case the precedence of opinion rests principally with those who are willing that, in offences of this sort, a legal confession which is likely to be true be sufficient to find the accused guilty. [Johann] Gödelmann acknowledges this in Book 3 of his treatise on witches, chapter 10, number 47; so does [Daniel] Moller, op.cit. section 2, from number 11 onwards; and before them, Giulio Claro had expressed this opinion in the final paragraph of Book 5 of his Received Opinions, question 55, ‘In what way can one say there is general agreement about an offence?’ Shouldn’t those people who have made a pact with evil spirits be added to the number of heretics? This is quite commonly received opinion according to [Paolo] Grillando, Divinatory Magicians, question 10, number 10 and [Giulio] Claro, op.cit. question 55, round about ‘it is also possible’ and question 4, round about 1, and Moller, op.cit. supra follows them; and who, unless he is willing to be rash enough to disagree with very eminent interpreters of the law, will deny that a legal confession is sufficient to find heretics guilty? Baldo [degli Ubaldi]

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dicam rap., cap. de Episcop. et cleri., Felino in cap. auditis extr. de praescript., Arelatensi in Tractat. de haeret. Notab. 2. Quamobrem censeo non tantum iudices secure posse stare tali confessioni, sed etiam teneri sub culpa lethalis peccati. Quia cum iudex ex officio et secundum leges reum damnare tenetur, si non damnet eum, ex cuius absolutione periculum imminet reip. et scandalum mali exempli plerisque gignitur, ad damna inde provenientia tenetur resarcienda, ut docebo in fine huius sect. 16. Nec diffiteri quis potest striges esse noxias reip. et conari quam plurimos possunt in societatem criminis pellicere, et earum absolutione bonos iure optimo scandalizari; secundum leges vero tales a iudicibus legitime captas, tortas, confessas puniri morte debere. Constat ergo iudices hoc facere nolentes lethaliter peccare in Deum et remp., et quod hinc consequitur tales Iudices in hoc proposito manentes absolvi in foro conscientiae nullatenus posse, quod accurate perpendendum est eorum confessariis. Quis nescit iudicem teneri ex actis procedere? Aut quis umquam Syndicatum intendit, aut in foro fori reprehendendum iudicavit, si secundum allegata et probata sententiam tulisset? Dumtaxat quidam excipiunt, si privatim certo sciret reum esse innocentem, quod ipsum tamen multorum gravium Theologorum, et cominunior Iuristarum sententia non admittit, nisi in eo qui legibus superior est, negat in subsellii inferioris iudicibus, sed hoc loco nullus huic exceptioni locus est. Nemo enim adversariorum affirmare audet certo se scire illas delausas et esse innocentes, praeter Wierum, Ponzinibium, Leooseum et similes, quorum iam explosus est error, obstinatione et impudentia et inscitia plenus; sed dicunt dumtaxat saepe illas deludi, et idcirco in individuo iudicem dubitare. Verum hinc ego contra infero, quando in individuo iudici non constat delusam esse, teneri iudicem legitimae rearum confessioni stare. Quaero, si

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on the law ‘si quis non dicam rapere’; the canon on bishops and clergy; [Maria Sandeo] Felino in his chapter ‘things one has heard which are not included in what [Martin of] Arles wrote: two things worth noting’ in his treatise on heresy. Consequently, I am of the opinion that judges can not only be secure in relying on such a confession, but that they are obliged to do so under pain of mortal sin, because since a judge is obliged by his office and the law to convict a person who is guilty, if he does not convict someone whose acquittal threatens danger to the state and becomes a scandalous bad example to the majority of people, he is obliged to make good the losses and damages arising from his decision, as I shall point out at the end of this section 16. Nor can one deny that witches [striges] are harmful to the state, and that they try to entice as many people as possible to join their criminal fellowship, and that if these women are acquitted, good people are quite rightly scandalised, and that according to law judges ought to have these women legally arrested and tortured and, once they have confessed, punished by being put to death. There is general agreement, therefore, that judges who are unwilling [to do this] commit mortal sin against God and the state, and that in consequence such judges as stick to this decision cannot be absolved in the court of conscience at all—something which should be carefully considered by their confessors. Who does not know that a judge is obliged to proceed in accordance with statute law, or who has ever proposed or come to the conclusion that, if an official has passed sentence in accordance with [statutes] he has been commissioned to uphold, and which have people’s approval, he should be censured in a temporal court of law? Some people, at any rate, make it an exception if, as a private individual, he knew for certain that the accused was innocent, an exception which the fairly common opinion of many eminent theologians and legal experts does not allow except in the case of Him who is above man-made laws and refuses [to grant such an exception] to judges belonging to a lower court. But there is no place for this exception in this case because no objectors, apart from [Johann] Weyer, [Gianfrancesco] Ponzinibio, [Cornelius] Loos, and the like, dare maintain that they know for certain the women have been deluded and are innocent. Their error, which is full of obstinacy, shamelessness, and ignorance, has already been hissed off the stage, yet they still say those women have often been deluded and that therefore a judge should hesitate in the individual case. I, on the other hand, deduce the opposite from this—that when, in an individual case, it is not clear to the judge that she has been deluded, he is obliged to rely upon the legal confession of defendants.154 I have questions.

154

Rearum, specifically feminine.

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nosset non esse delusam, nonne damnaret? Si damnaret, quam sciret non delusam: cur non teneatur etiam fassam damnare quam nescit delusam? Semper sane praesumenda est non delusa, donec delusa fuisse probetur, quia legitima confessio, vera esse praesumitur, contendenti delusam, probatio incumbit. Non probanti merito obiicitur; neminem qui alias mente constet, slultum vel delusum praesumi, nisi probetur. Videte in quem scopulum isti impingunt, dum scrupulum timent. Scrupulorum proprium est facere ut timeas, ubi non est timendum, et contemnas ubi merito sit trepidandum, sic isti dum vitant, vel fingunt se | vitare, inanem culpam, in verum crimen incurrunt. “Ubi impius interficitur (ait D. Ambros., lib. 2, De Paradiso) christus infunditur; ubi abominatio aboletur, sanctificatio consecratur.” “Impium est (scribit Cassiod. lib. 9, Varior. in edicto Alarici) iudices illis esse indulgentes, quos coelestis pietas non patitur impunitos.” Haec de scrupulo praetenso. Nunc de ipsa delusione manum conseramus. Primum dicunt: “Manifestum esse Doctores de sagarum materia scribentes ad unum omnes hoc admittere, quod mulierculae a daemone saepe decipiantur ac illudantur; ita ut per imaginationem credant ac cogitent certo se perpetrasse ac fecisse veraciter, ea quae in sola phantasia opera Diaboli mentem obfuscantis obversata sunt.” Siste gradum. Bonam horum Doctorum partem non oscitanter perlegi, et nego ad unum omnes hac de re idem sentire, quoad id quod de facto contingit; sed tantum conveniunt quoad id quod potest contingere. Fatentur omnes unanimiter fieri posse, ut mulierculae decipiantur; immo et viri, nam ne sexus quidem melior purus ab hac contagione, sed utrum reipsa saepe decipiantur; item, utrum haec deceptio in cunctis quae fatentur, an in quibusdam tantum locum habeat, non idem sentiunt, nec scribunt. Ponzinibius, Wierus, et simil. videntur velle semper illas deludi; Alciatus, Duar.,

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If he knew she had not been deluded, wouldn’t he find her guilty? If he convicted a woman he knew had not been deluded, why is he not also be obliged to convict a woman who has confessed, but whom he does not know has been deluded? Indeed, he should always presume she has not been deluded until it is proved that she has been, because a legal confession is presumed to be true, and it is incumbent upon the person who claims she has been deluded to prove it. The objection is quite properly brought against someone who does not prove it that no one who is in other respects in his right mind is presumed to be stupid or deluded unless he is proved to be so. Notice the rock against which these people dash as long as they are afraid of a scruple. The nature of scruples is that you act in accordance with your fear when there is nothing to be afraid of, and disregard them when there really is something to be alarmed about; and so, while these people are avoiding, or pretending to avoid, [what they fear], they are turning an idle fault into a genuine offence. ‘When an irreligious person is killed,’ says St Ambrose in the second Book of his treatise on paradise, ‘Christ is poured into [his place]. When an abomination is destroyed, something holy is consecrated [in its place].’ ‘It is irreligious,’ writes Cassiodorus in Book 9 of his collected letters, in the edict of King Alaric, ‘for judges to show indulgence towards those whom the justice of Heaven does not allow to go unpunished.’ This is what I have to say about an alleged scruple. Now let me turn my attention to the delusion itself. The first thing they say is this. ‘It is clear that learned men who write on the subject of witches [sagarum] all agree on one point—that the silly women are often deluded and deceived by an evil spirit to such an extent that, because of a mental picture they have, they think and believe they really have carried out and done the things they have seen merely in their passive imagination, things which have been caused by the Devil’s clouding their rational mind.’ Hold on a moment! I have read, and not without care, a good portion of these learned men, and I deny that they all agree to a man upon this subject as far as what actually does happen is concerned. They simply agree as far as what can happen is concerned. They all unanimously acknowledge that silly women are deceived—and indeed men, too, because not even the better sex is free from this contagion—but whether they are actually deceived often, and likewise whether the deception they are confessing affects all of them or merely some, [scholars] do not think or write the same thing. [Gianfrancesco] Ponzinibio, [Johann] Weyer, and those who think like them seem to mean that the women are always deluded. [Andrea] Alciato, [François] Douaren,155 155

François Douaren, (1509–1559), was Professor of Law at the University of Bourges. He wrote commentaries on the Corpus Iuris Civilis and a proposal for the best way both to teach and to learn the law.

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Godel. et alii videntur velle tantum deludi quoad pleraque; et quidem quoad haec semper, quorum omnium iam explosae sententiae indignae sunt quibus refellendis iterum calamus desudet. Communis Theologorum, Philosophorum, Iuristarum, et omnium Ecclesiasticorum Tribunalium, et fere omnium saecularium subselliorum sententia est, illusionem hanc in paucis admodum rebus seu facti speciebus (nempe delatione ad conventus, transfiguratione, et carnali copula cum daemonibus), et id rarissime in his ipsis contingere, sic praeter caeteros diserte scribunt Iaquerius, Comensis, Sprenger, Michaelius, Binsfeldius, Remigius. Peccant itaque disputatores isti, primo cum asserunt omnes in hac delusione covenire; secundo cum quod de quorumdam casuum seu visionum confessione conceditur, id ad caeteros extendunt, de quibus idem negatur; tertio dum, quod rarissime contingere, immo quod tantum contingere posse multi dicunt, id ipsi sic interpretantur; quasi crebrum esse vel frequentius ab omnibus concedatur. Sin fatentur id frequentius quidem non esse, cur non potius quod frequentius esse solitum amplectuntur, et animo propendent, ut ex frequentius contingentibus confessionem veram, quam falsam esse praesumant? Sicut legislatori (secundum Theophrastum), sic et iudici oculus mentis ab eo quod semel aut bis accidit, ad id quod saepius consuevit, transferendus. Deinde peccant, et largius, cum ex tali praemissa propositione inferunt: Non satis ergo tuto iudices agunt, quando confessionibus sagarum, sive voluntariis, sive extortis per vim, fidem adhibent, et eas sufficientibus ad damnationem probationibus habent. Errant inquam sic argumentantes. Primo, quia videntur velle subindicare iudices hoc numquam tuto facturos, quod ex praemissa tamen particulari propositione eos inferre recta ratiocinandi ratio non permittit. Ais, saepe decipiuntur: ergo iudex numquam earum confessioni tuto credat. Nego consequentiam, quae ut valeret, semper decipi eas foret necesse, nunc nec saepe, sed rarissime decipi deprehenduntur. Saepius ergo erraret | iudex non credens, quam credens. Quod si tantum hoc volunt Aliquando delusae sunt: ergo a sic delusis aliquando iudex rapi potest in errorem. Verum id qui-

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[Johann] Gödelmann, and others, seem to mean they are deluded only as far as most of things are concerned. They, certainly, are always deluded as far as most of these things are concerned! The opinions of all these men have already been driven off the stage and it is not worthwhile one’s fatiguing one’s pen in refuting them yet again. It is the general opinion of theologians, philosophers, legal experts, Church courts, and almost all secular courts that this illusion actually happens in a very few circumstances or real situations—I mean, of course, transportation to assemblies, changing shape, and carnal intercourse with the evil spirits—and very rarely in these. ([Nicolas] Jacquier, [Bernardo da] Como, [Jakob] Sprenger, [Sébastien] Michaëlis, [Peter] Binsfeld, and [Nicolas] Rémy write about this more eloquently than anyone else.) So the people I mentioned who dispute this commit a sin, first, because they maintain that all [witches] have this delusion in common; secondly, because they extend the concession they make about certain [witches’] confessing to unexpected happenings or visions to all the rest who make no such confession; thirdly, while many of them say that this can happen, they explain that it does happen very rarely, as though everyone agrees it is a frequent or fairly frequent occurrence. But if they are claiming that in fact it is not particularly frequent, why do they not come to terms [with the notion] that it was usually quite frequent [in the past], and be more willing to presume that that because it has happened quite frequently, a confession is true rather than false, just as, (according to Theophrastus), the mind’s eye of a law-giver or a judge should turn its attention from something which happens once or twice to something which has been in the habit of happening rather often? Next, they sin, and do so rather a lot, when they deduce from the aforementioned proposition that ‘judges therefore do not act with sufficient caution when they trust in witches’ confessions, (whether these have been made voluntarily or have been extorted by force) and consider these as sufficient proofs to find [the accused] guilty.’ I say that those who argue this way are making a mistake, in the first place because they seem to be hinting that judges will never do this properly because, as a result of the aforementioned proposition, the right way to think about it does not allow the judges to make that inference. You say, ‘these women are often deceived and so a judge can never believe their confession.’ I deny the conclusion. In order for it to be valid, they would have to be deceived all the time. But these days, they are found to be deceived not ‘often’, but ‘very rarely’. So, a judge who did not believe them would be mistaken more often than one who did. If [the people I am talking about] simply mean that the women are sometimes deluded, and that a judge can therefore sometimes fall into error because the women have been deluded this way, yes, this

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dem, sed et illud verum, saepissime et fere (si fere) semper compotes mentis sunt et erroris vacuae, et verum est quod confitentur: ergo iudex confessionem illam sequens saepissime et fere semper recte iudicabit, et numquam, vel vix umquam ab illis in errorem deducetur. Amplius dico, quamvis deduceretur: si confessio legitima fuerit, addicens confessam supplicio legitimo, nihil peccabit, sed error expers est culpae; functus enim est officio suo, qui secundum allegata, et probata, et publicam conscientiam, immo et privatam (cui dubitatio sola non repugnat) ex iuris norma iudicavit. Praeterea si quid ista ratio valeret in similibus valeret, in quibus tamen nemo iudiciorum vel legumperitus ullatenus eam admiserit. Quam saepe tormentorum acerbitas falsam in proprium caput reorum confessionem extorquet! Ergone iudex qui ex confessione per quaestionis cruciatum expressa, sed alias legitima, reum damnavit, non secure procedet? Saepe fit ut multi testes pecunia corrupti in unum testimonium conspirent, nec occurrat contra illos exceptio vel depulsio sufficiens, et tamen reus vere sit innocens: ergo testimonio legitimo testium iudex non tuto nitatur? Quis haec ferat? Similia sunt tamen, quae adversarii adferunt. Quia quod ad iudicem attinet, qui decipitur, parum vel nihil attinet, qua ex causa decipiatur, si peccaturus idcirco, quod sine sua culpa deceptus condemnarit. Nec ad rem pertinet, quod deceptio ex quaestione vel testimonio, vel ex rei spontanea confessione sit orta, quia suppono in his omnibus aeque iudiciorum solemnia cuncta rite observata fuisse. Si ergo talia ad subvertendum omnium publicorum iudiciorum ordinem et rationem sufficere debent, valebit illa argumentario: si non sufficiunt, invalidus est et obtusus iste mucro a delusione petitus. Qui etiam inde retunditur, quod hac in re eadem quoque est ratio fascinationis et caeterorum criminum. Nam etiam quoad alia crimina reos a daemonibus deludi posse constat, ut quod homicidium, vim publicam, adulterium, monetariam etc., si faciat daemon ut quis putet a se factum, vel alii videantur videre se Petrum facientem, quod alius fecit. Nemo tamen in aliis criminibus ad reorum liberationem a poena iuris umquam hoc colore uti voluit, quia nullus fuit qui tam frivolae defensionis vanitatem non perspexerit. Quot somniantibus illusiones contingunt, quas homines putant sibi vigilanti-

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last is true. But so is the former. Very often and almost always, (if ‘almost’ is the right word here), [the women] are in their right mind and what they confess is true. A judge who goes along with a confession will very often, and almost always, make the right judgement and will never, or scarcely ever, be misled into error by them. I say further that even if he were to be misled, if the confession is legal and he sentences the woman who made it to legal punishment, he commits no sin at all. His mistake is free from blame, because he made it in the discharge of his office and came to his judgement in accordance with what was said and proved in court, his public and private conscience—uncertainty alone is not inconsistent with this—and the rule of law. Moreover, if [these people’s] reasoning were valid, it would be valid in similar cases, and no one with any experience of the courts and skill in the law concedes this at all. How often the severity of torture twists a confession into the accused’s own head! Will the judge who sentences the accused as a result of a confession which has been squeezed out by the pain of torture, but is otherwise legal, therefore proceed incorrectly? It often happens that many witnesses who have been corrupted by money conspire to give a single testimony and are not met with an adequate defence or repulse. Yet the accused may genuinely be innocent. So, can the judge rely upon the witnesses’ testimony—which is legal? What kind of person says this? Yet what one’s opponents are saying is just like this, since what concerns the judge who is being deceived has little or nothing to do with the reason he is being deceived, (if that is why he is going to commit a sin), because it is not his fault he has been deceived and has convicted the accused. Nor is it relevant that the deception may have arisen because of torture, or as the result of torture, or from the willing confession of the accused, since I am assuming that in all these cases all the judicial formalities will have been properly observed. If, therefore, things such as these ought to be enough to subvert the order and rationality of every public judicial decision, that argument will be valid. If they are not enough, the sword they have been looking for in ‘delusion’ is inadequate for their task and blunt; and it is blunted thereafter because, when it comes to this subject, it is also the same explanation they give for casting the evil eye [ fascinationis] and all other crimes [of this type]. When it comes to other crimes, such as murder, public disorder, adultery, false coining, etc., you see, it is agreed that the accused can be deluded by evil spirits if an evil spirit causes someone to think he has done them, or other people appear to see ‘Peter’ doing what someone else has done. But in the case of these other crimes, no one has ever wanted to use this as an excuse to free the accused from the penalty of the law, because there has not been anyone who has not noticed how frivolous and delusive this defence is. How many illusions happen to dreamers, which people think have happened to them while they are

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bus oblatas? Quot in somnis aliquando caedes, incendia, proditiones nonnulli sibi videntur designare? Quid si ergo somniet, v.g. Petrus se Paullum capitalem inimicum gladio traiicere, et Paullus gladio traiectus reperiatur: capiatur Petrus, et putans se, quod tantum somniavit, revera patrasse, et ideo sponte aut in tormentis homicidium a se commissum fateatur, quod alius commiserat: quaero, quid iudex faciat? Absolvet? Non licet legitime confessum, damnabit? Innocens est reipsa. Innocens peribit, et tamen iuste ac tuto fuerit a iudice damnatus. Idem sibi responsum existiment isti, qui causam tam frivolam quaerunt, in tam immanis iniuriae Deo et reip. illatae dissimulatione. Verum haec de argumenti forma et validitate iam nimis multa. Venio ad rem ipsam, et inquirere stat, an aliqua regula tradi possit, qua iudici constet: an vera sit confessio Strigum, an vana et illusoria? Prius | quaedam sunt fundamenta praeiacienda, ut firmior sit ardua structura. Notandum imprimis ea quae magis accidunt, aliquando somno depressis accidere, ut quae Tostatus, Olaus, Baptista a Porta de quibusdam narrant; aliquando certo et perspicue vigilantibus. Nam certum est auguria, et reliqua maleficia de quibus S.S. non uno loco egit, a vigilantibus acta, ut a Magis Aegypti, Exod., 8, Pythonissa Saulis, 1. Reg., 28, maleficis Manassis, 2. Paralip., cap. 33. Balaam ariolus vigilans imprecari solitus, n. 22. Saepe etiam quod unus somniavit, hoc alter vere patravit, ut Iudic. 7. Madianita miles somniarat, quod Gedeon in castra irruens vere fecit. Unde fit ut possit quod uni sagae somnianti, hoc alter viglilanti vere contigisse, quare non possumus ex huiusmodi narratio-

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awake? How many murders, acts of fire-raising, or acts of treachery do people sometimes seem to picture to themselves while they are asleep? So suppose, for example, that ‘Peter’ dreams he is running through his deadly enemy Paul with a sword and Paul is discovered, run through by a sword. ‘Peter’ is arrested. He thinks he has actually done what he merely dreamed he was doing, and therefore, either of his own accord or under torture, confesses he committed a murder which someone else had committed. What is the judge to do? Acquit him? Convict him, even though his confession is not a legitimate one? He is actually innocent. He will die, an innocent man, and yet his conviction by the judge is correct and secure. Let those who look for such a frivolous explanation in regard to a dissembling, which does such immense harm to God and the state, decide the answer for themselves. But I have already said too much about the nature and validity of their ‘proof’. I now come to the subject-matter itself and I have to ask if it is possible to provide any rule by which a judge can decide whether a confession by witches [strigum] is true or is worthless and caused by an illusion.156 First there are a number of fundamental points which need to be mentioned first, so that the lofty structure [built on top of them] can be more stable. First of all one needs to note that quite a lot of things sometimes happen to people who have been overcome by sleep, (such as the stories told about certain people by [Alonso] Tostado, Olaus [Magnus], and [Giam]battista della Porta,)157 and sometimes, of course, notably to people when they are wide awake, because the fact is that soothsaying and all the other malefices with which Holy Scripture deals in more than one passage were done by people who were wide awake—the magicians in Egypt, for example, (Exodus chapter 8), Saul’s prophetess, (1 Kings chapter 28), Manasseh’s acts of harmful magic, (2 Chronicles chapter 33), and Balaam, a soothsayer, who used to call down curses while he was wide awake, (Numbers chapter 22). Often, too, what one man dreamed, another man actually carried out, ( Judges chapter 7, for example): a Midianite soldier dreamed that Gideon was attacking his camp, and he actually was. Consequently, it turns out it is possible that something which has happened to one witch [sagae] while she is dreaming, has actually happened to another while she is awake and so, because of narratives of this kind, which

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It may be worth observing that the adjective illusorius means ‘mocking’ or ‘ironical’ in Classical Latin, a meaning of which Del Río and his readers may well have been aware at this point. Giambattista della Porta, (c.1535–1615). His best-known work was his Natural Magic, first published in 1558 and later expanded to twenty Books in 1589.

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nibus, quae particulares sunt, universim colligere semper vere, aut semper falso haec contingere. Notandum secundo solere hominem deludi vel imaginarie tantum, seu interna imaginatione, quando in rei inanem similitudinem cogitatio tendit, quasi in rem veram sensibus obiectam, ut fit somniantibus. Quod non videtur fere umquam habere locum in strigibus nostris, quia fere semper concurrunt circunstantiae aliquae ex quibus pateat, delictum earum imaginarium non fuisse, ut cum effectus resultat in alio quam in ipsa strige, puta in agris, in maleficiato, etc. Vel deluditur homo per praestigium, quando immutatio oritur ex parte rei visae, et non ex parte videntis, quia res aliter oculis videnda obiicitur, mutato forte medio, et aliis speciebus ad oculum deductis, quam revera obiectum praefert, ut cum videtur esse lupus vel cattus qui homo est. At ista deceptio locum habet in praestigiosis metamorphosibus, quando striges sibi vel aliis videntur transformatae, sed generat tantum deceptionem opinionis, et consistit cum vero crimine homicidii, etc. Vel denique fit illusio per apparitionem rei qualis est, et qualis apparet; sed per diabolum de novo fabricatae ad alicuius verae rei similitudinem, ut quando diabolus corpus aereum assumit ad similitudinem viri vel foeminae, vel hirci, et talis apparet strigi. Tunc tantum deluditur strix, si putet esse verum hominem vel hircum, qualis apparet. Sed tunc deceptio potissima est ex parte obiecti; ex parte vero videntis non est deceptio in sensu exteriore, sed in opinione, quia unum putat pro alio; si tamen huic viro succuba sit mulier, vel hunc hircum adoret, vel hoc hirco transferatur ad conventum, non est deceptio quo ad criminis reatum vel malitiam. Unde fit manifestum in hac materia duplicem considerandam et distinguendam illusionem, unam opinionis, et alteram rei; opinionis quoque illusionem esse duplicem, unam quando fallitur opinio, et cum ea simul sensus exterior; alteram quando sola opinio, vel solus exterior sensus. Opinio quo sensu delu-

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are specific cases, we cannot deduce that they are always universally true or that they are always universally untrue. Secondly, one must note that a human being is usually deluded either merely in appearance but not in reality, or because of an internal mental image, when something he is thinking about turns into a feeble likeness of the object, as though his senses had made it appear to be real, the kind of thing which happens to people when they dream. This is something which scarcely ever seems to be true of present-day witches [strigibus] because almost always a number of circumstances happen at the same time, and from these it is clear that their offence is not imaginary, such as when something a witch does rebounds on someone other than the witch herself—upon the countryside, for example, or upon someone who has been the object of harmful magic, etc.; or someone is deluded by a conjuring-trick [praestigium] when a transformation takes place, not on the part of the object which someone is looking at, but as far as the person looking at it is concerned, because the object is being presented to the eyes to be seen in a different way. It may be that the space between them has been changed, and appearances other than the one the object actually presents have been brought to the eyes, the result being that a human appears to be a wolf or a cat. This deception takes place during the metamorphoses of conjuring-tricks when witches [striges] think they or other people have changed shape; but it simply deceives people about what they think they are seeing, and ends with a genuine crime of murder, etc.; or, as a final point, an illusion happens because of [the difference between] what an object is and what it appears to be, when the Devil recreates the appearance of something so that it looks like a genuine object, such as when the Devil takes on a body made from air, which looks like a man or a woman or a goat, and this is how he looks to the witch. Under those circumstances, the witch is deluded only if she thinks appearances are real and that it is a genuine man or goat. But under those circumstances the deception is most powerful with respect to the object. With respect to the woman who is looking, on the other hand, the deception exists not in her external sense, but in what the woman thinks she is looking at, because she is mistaking one thing for another. If, however, the woman is the man’s strumpet, or she worships the goat, or she is transported to an assembly [of witches] by the goat, it is not a deception as far as the guilty man or the maliciousness of the crime are concerned. Consequently, it becomes clear that in relation to this subject, two kinds of illusion have to be considered and distinguished, one of opinion and one of fact, and that the illusion of opinion is also of two kinds, (i) when the opinion is deceived along with the external sense, and (ii) when only the opinion, or only the external sense, is deceived. The opinion is deluded by this sense

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ditur, quando per praestigium videntur sibi sagae aequitate in hirco vero, et ab eo deferri ad conventum, quando rem habent cum daemone, et putant eum in proprio corpore, et proprio semine concurrere; quando putant se transformatas in cattos, et sibi vel aliis tales videntur. Et certum est eiusmodi delusionem solam eas a poena Sodomiae vel homicidii patrati non liberare, non magis quam similis delusio excusabat illas de quibus in d. cap. Epist. opt. | Fieri potest ut sic hodie multae illarum sint delusae aliquando, sed tunc iudex debet attendere ad factum, an sic equitarint, an se daemoni commiscuerint, an puerum strigaverint, an ea fecerint quae ad transformationem vel strigiportium Diabolus docuit. Sola opinio decipitur, quando putant daemonem esse Numen, aut ei deberi adorationem, aut esse omnipotentem, vel omniscium, vel largiturum illis beatitudinem, etc., haec deceptio non excusat a poena, ut nec haereticos reliquos, quare πάρεργον est, quod strigum rudiores, et idiotae sic decipiantur. Sensus solus decipitur, cum aliquid videndum, tangendumque a diabolo obiicitur, quod tamen qui sensu deluditur, scit non esse quale videtur, aut quale tactu, gustu, olfactu, audituve percipitur, veluti quando striges non nesciunt se rem habere cum ipso daemone, equitare super daemonem, non mutari in cattum, sed haec sibi videri tantum, etc. Et talis delusio opinionis, quae est in lamiis doctioribus, et minus rerum imperitis, multo adhuc minus a poena ordinaria praebet excusationem, quia hic ex earum parte est malitia formalis et perfecta. Restat ergo difficultatem totam versari in delusione quae est ex parte rei, sive facti. Quae nec ipsa est simplex aut uniusmodi. Nam aliquando existimant sibi vigilantibus accidere, quod vere in somnis tantum accidit; haec delusio non magis excusat a poena, quam a peccato, verbi gratia, putat una se delatam ad conventum, quae mansit in loco sopita, prius tamen vere fecit omnia quae solent adhiberi ad strigiportium, vel putavit se cum daemone vigilantem commisceri, cum tantum sit somnians delusa, sed tamen daemonis amplexus

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when, because of a conjuring-trick, witches [sagae] think they are riding a real goat and that it is carrying them to their meeting; when they have sex with an evil spirit and think he is engaging with them in his own body and with his own seed; when they think they have turned into cats and look like cats to themselves and to other people. There can be no doubt that this kind of delusion alone does not release these women from paying the penalty for having committed bestiality or murder, any more than a similar delusion excused the women mentioned in the canon Episcopi. It can happen these days that many of these women have been deluded this way, but under the circumstances, the judge ought to pay attention to the facts of the case. Did they ride in this fashion, did they have sex with an evil spirit, did they harm a child, did they do what the Devil taught them to do in order to change their shape, or be carried to their witches’ meeting? The opinion alone is deceived when they think an evil spirit is a deity, or that he should be worshipped, or that he is omnipotent and omniscient and will bestow blessedness upon them, etc. This deception does not excuse them from punishment, just as it does not excuse any other heretic, and in consequence, the fact that the more ignorant and stupid witches are deceived this way is πάρεργον [of secondary importance]. The sense alone is deceived when the Devil throws in its way something which can be seen and touched, but which the person who is being deceived knows is not what it seems to be, or that it is the kind of thing one perceives by means of touch, taste, smell, or hearing as, for example, when witches [striges] are not unaware they are not having sex with an actual evil spirit, are not riding on an evil spirit’s back, and are not being changed into a cat, but simply think they are, etc. The sort of delusion of the opinion, too, which one finds in witches [lamiis] with greater experience of things, does not excuse those with less—and still less those with more—from [suffering] the standard punishment, because in these circumstances, as far as these women are concerned, the wickedness is thorough-going and connected with outward appearance. I still have to discuss the whole difficulty contained in a delusion which is partly that of the accused and partly that of what he has done. This delusion is not simple or of a single kind, because sometimes they think that something which, in fact, merely happened while they were asleep, has happened to them while they were awake—a delusion which does not excuse them from punishment, any more than it does from sinfulness. For example, a woman thinks she has been taken to a meeting when actually she has stayed where she is, asleep. Earlier on, however, she genuinely did do everything which is usually done in order for a witch to be transported. Or she thought she was having sex with an evil spirit while she was awake, although she was deluded and was

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expetebat, et in nefarium scelus animo consentiebat. Sufficit malitia, conatus, et pactum initum, et obstinatio perfida sibi in Vigilia complacens, et ad hoc plane deliberata, sicut obtinet in haeretico, qui quam in somniis accepisset propositionem haereticam, eam vigilans postea approbaret, ac tueretur, quem certo rogus maneret. Aliquando putant se fecisse quod daemon ipse fecit, verbi gratia, putant se tempestatem concitasse, pauperiem agris fecisse, necem pecoribus et infantulis intulisse, quae tamen cuncta ex condicto ad signum praestitutum diabolus patratravit, ipsis id fieri volentibus, et ex conventione signum praefixum sustulerunt. Quid tum (quaeso) interest, per se, an per alium fecerint? Quod si (quod rarissimum) nihil tale conatas striges, nihil cooperatas apparuerit, et aeque dubitetur an per daemonem haec sint operatae, ad singulares circumstantias tum iudici recurrendum, et quia casus sunt individui, ipsae quoque conditiones circumstantiarum individuae sunt et peculiares, nequit res ulla generali regula definiri. Possunt tamen quasi in genere circa singulas circumstantias quaedam observari, non parum lucis Iudicibus zelo Dei praeditis altis allatura, nam quorum zelus est in loculis, vel emortuus, iis quoniam in media luce amant caecutire, frustra sol veritatis illuxerit. Praeclare (mea sententia) notatum fuit a Sebastiano Michaelio, Pneumalogiae operae extremo, nobis ad hanc veri investigationem, strenuum veritatis athlelam, et fidei claram lucernam, Beatum Augustinum praeivisse, et si penitius inspi|ciatur, tres nobis Canones indagitorios eum tradidisse, lib. 18 De civitate Dei, cap. 18, liber ille Michaelii Gallico scriptus est idiomate, in gratiam nationum caeterarum redigam fide optima in compendium, quae dicit. Prima regula quam tradit: est iudicium desumendum ab affectu subsecuto. Sic enim volens decidere, an quod de Iphigeniae sacrificio narratur, vere acciderit, an praestigiose? Concludit Iphigeniam reipsa nec immolatam, nec in feram fuisse mutatam, sed aliud animal ei ablatae daemonis dolo ac sutelis suppositum, probat ab experimento subsecuto, quia diu postea vivens alibi reperta fuit Iphigenia. Eodem argumento probat Diomedis socios non fuisse conversos in aves,

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merely dreaming it. However, she was longing for an evil spirit’s embraces and mentally consented to her wicked crime because she liked the wickedness, the attempt, the pact she had entered into, and her scoundrelly stubbornness during her waking hours, during which she was clearly resolved upon doing this. This is like the case of a heretic who heard an heretical suggestion while he was dreaming, and would go on to approve of it and defend it when he was awake. The stake would undoubtedly await him. Sometimes they think they have done what has actually been done by an evil spirit. For example, they think they have raised a storm, done damage to fields, killed cattle and small children. But it has all been carried out by the Devil according to agreement at a pre-arranged signal. They wanted these things to be done and have supplied the pre-arranged signal in accordance with what they had agreed in advance. So, my question is, does it matter whether they have done these things themselves, or someone else has done them? But if—and this very rarely happens—it appears that the witches [striges] have not attempted anything of this sort, and have not done anything at all, and if it is equally doubtful whether these things have been done by an evil spirit, the judge should turn his attention to the individual circumstances, and because each case is individual, its attendant circumstances are also individual and peculiar to it. So, the case cannot be kept within the bounds of any general rule. Certain observations, however, can be made in regard to the individual circumstances as though they were generally true, and this will bring not a little light to judges who are possessed of a zeal for God, because as far as those whose zeal is for their purses, or has died, since they like to be blind in the midst of light, the sun of truth has shone in vain. In the last part of his Pneumology, Sébastien Michaëlis has noted, (very clearly in my opinion), that the vigorous athlete of truth and bright lamp of faith, St Augustine, preceded us in order to investigate the truth, and that if one looks more deeply into it, he has bequeathed three rules to us with which we can track it down. (See The City of God Book 18, chapter 18.) Michaëlis wrote Pneumology in French, and for the sake of all other nations I shall render what he says as best I can in shortened form. The first rule he hands down to us is that a legal decision should be made on the basis of what happened after the original action. Thus, if one wants to decide whether what we are told in the story of the sacrifice of Iphigenia really happened, or took place as the result of a conjuring-trick, Michaëlis concludes that Iphigenia was not actually sacrificed or turned into a wild animal, but that she was carried off and another living creature put in her place by means of a trick by an evil spirit; and he proves this by what happened later, because a long time afterwards Iphigenia was found alive in a different place. He uses the same evidence to prove that the compan-

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eo quod iste aves Diomedae postea inter se mixtae (ut et Meleagrides) speciem suam caeterarum avium more propagaverint. Unde colligit a daemone socios Diomedis subito translatos alio, et has illis aves, aliunde compulsas, fuisse substitutas. Econtra patet vera fuisse Moysis in Aegypto miracula, quia Nili pisces vere mortui reperti, et locusta vineas ac messes vere perdidit. Vere quoque patientiae exemplari Iobo daemonem damna dedisse, quia vera mors iumentorum, filiorum, et servorum ipsis cadaveribus, et subruta domus ruinis apparuit, nec quicquam horum postea vivens vel integrum repertum. Confirmat hanc regulam D. Thomas cum censet praestigias et illusiones diaboli diu durare non posse; cum sint, non naturae seu substantiae subsistentis, sed quaedam dumtaxat accidentia, quae Dialectici communia vocant, quorum est proprium alteratione naturali velociter commutari. Secundum hanc ergo regulam patet in criminum, quae striges fatentur plerisque veritatem a parte rei subesse, non nudam illusionem. Infanticidia probantur, quia pueri quos illae fatentur a se necatos, a parentibus praefocati vel exsucti reperiuntur. Exhumatio corporum, sepulchri religione violata, probatur, quia cadavera sepulchris eruta non inventa in locis suis, frustum vestimentorum quod dicebant se daemoni pro arrabone dedisse, re ipsa repertum abesse a vestis parte, quam illae narrabant. Homines et iumenta maleficiis laesi, et interdum ab illis liberati sunt ubique ad manum. Secunda regula est: Attendendum an quae asserunt, sint daemoni possibilia. Sic enim Divus Augustinus ibidem ostendit non fuisse socios Diomedis in aves vere et essentiali transformatione mutatos, quia specifica mutatio essentiae unius in aliam superat creaturae potestatem. Sed dicit factum subtractione et suppositione illa quam memoravimus, quia hoc, Divina permissione, difficile non est daemoni. Hanc regulam secutus est Divus Thomas, 1 part., q. 114, art. 4 ad 2, cum scribit: si agatur de resurrectione mortuorum aut similium rerum supernaturalium, et eae daemonibus tribuantur, credendum fuisse dumtaxat

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ions of Diomedes were not turned into birds, because later the birds known as ‘the birds of Diomede’ had sex with each other, (as did the Meleagrides),158 and spread their likeness the way all other birds do. In consequence, he concludes that Diomedes’s companions were suddenly translated to another place by an evil spirit, and that birds brought from elsewhere were substituted for them. By way of contrast, it is clear that Moses’s miracles in Egypt were genuine, because the Nile fish really were found to have died, and the locust really did destroy their vineyards and harvests. It is also clear that the evil spirit really did cause losses to Job, that exemplar of patience, because the physical death of his cattle, his children, and his slaves was real, as was the destruction of his house, and none of these was later found to be alive or intact. St Thomas [Aquinas] corroborates this rule when he thinks that the Devil’s conjuring-tricks and illusions cannot last long because they are not of a character or substance which continues to exist but are merely the kind of accidentals logicians call ‘general’, whose property is rapidly changed as a result of natural alteration. Therefore, according to this rule it is clear that, in most cases, truth lies at the bottom of the crimes witches [striges] confess, not unadorned illusion. Their infanticides are proved, because the parents find that the children the witches confess they have killed have been suffocated or have had the life sucked out of them. Their digging up bodies in violation of the sanctity of burial is proved, because corpses dug out of graves are not found in their proper places, and a fragment of their clothing, which [witches] often say they gave to an evil spirit as an earnest [of their obedience], has actually been found separate from the garment, and this accords with what the women tell us. Human beings and cattle have been injured by acts of harmful magic [maleficiis], and sometimes the women have let [the cattle] loose whenever they have had the opportunity to do so. The second rule is that one must consider whether the things they claim are possible for an evil spirit. Thus, in the passage to which I referred, St Augustine pointed out that Diomedes’s companions were not really changed into birds in their essential being, because changing one kind of living thing into another is beyond the power of a created being. He says it was done by the removal and substitution I mentioned because this, with God’s permission, is not difficult for an evil spirit. St Thomas [Aquinas] is happy with this rule in the first part [of his Summa], question 114, article 4, objection 2, since he says that if it comes to resurrecting the dead or similar activities which go beyond the power of Nature, and these are attributed to evil spirits, one should believe they were

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The sisters of Meleager, who were grief-stricken by his death and were turned into birds bearing his name.

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illusiones. Nam licet Deus universali sua providentia utatur, ad plurimos effectus, malis spiritibus, numquam tamen utitur iis, ad opera vere miraculosa, quae sibi et bonis Angelis beatisque reservavit, et quia diaboli donorum supernaturalium non sunt capaces. Hac regula usi fuere veteres Christiani in discernendis miraculis veris B. Petri, a fictitiis Simonis Magi, testibus Clemente, lib. 3 Recognition. et Irenaeo, lib. 2, cap. 57. Secundum hanc quoque regulam credendum est confessioni strigum, quia quae fatentur non superant | vim daemonis, ut ostendi, toto lib. 2, nec quicquam eorum repugnat, immo consentanea sunt omnia S.S. et Patrum doctrinae. Quare ut ex hoc indicto res decidatur, opus est viro in S.S. et Patrum in lectione et philosophia solide versato, qui sit pius, doctus, et Catholicus, quia (ut ait Tertull. lib. De anima) daemones soli noveri Christiani. Tertiam D. August. regulam petit: ex multitudine testium, et conformi similitudine narrationum, quia universorum unanimis ubique consensus excludit omnem deceptionis aut somnii suspicionem: hoc argumento utitur d. lib. 13, cap. 18. Sic in causa strigum ex distantissimis regionibus hodie idem testantur Scriptores Italiae: Grillandus, Albertinus, Silvester, Spina et alii; Hispaniae: Ciruelus, Catrius, Tostatus; Galliae: Iaquerius, Michaelius, Crespetus; Germaniae: Sprenger, Nider, Mollerus; Lotharingiae: Remigius, Gregoriusque; Treveris: Binsfeldius. Denique alii innumeri. Ipsae quoque striges cum idem quod dicunt in Hispania, dicant in Italia; et quod in Germania, totidem factis et verbis referunt in Gallia; et quod uno anno, id alio semper iam ab annis plusquam octoginta continuis in eculeo et extra quaestiones liberi profiteantur; idque tam apposite, ut mulierculae et pueri litterarum alioquin rudes videantur legisse, intellexisse, et memoriae mandasse, quaecumque viri docti de his rebus scripto per Europam totam variis linguis tradiderunt: nonne hic consensus universalis plus satis convincit, haec iis non accidisse in somnis? Nam si haec somniarunt, quo pacto sic semper omnes idem somniarunt eodem ubi evenisse modo, eodem loco, eodem tempore, die, hora?

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merely illusions. The reason is (i) that although God, because of His universal foresight, makes use of wicked spirits to carry out most of these things, He never makes use of them for works which are truly miraculous and which He has reserved to Himself, good angels, and the saints, and (ii) because devils are not capable of [bestowing] supernatural gifts. Christians in the old days made use of this rule in distinguishing the genuine miracles of St Peter from the pretended miracles of Simon Magus. (See Clement [of Rome], Recognitions Book 3 and Irenaeus, Book 2, chapter 57.) According to this rule, too, one should believe what witches [strigum] confess, because what they confess does not go beyond the power of an evil spirit, (as I demonstrated in the whole of Book 2), and none of it contradicts—indeed, all of it is consistent with—the teaching of Holy Scripture and the Fathers [of the Church]; and so that a situation can be decided by means of this evidence, one needs a man who is well versed in the interpretation and philosophy of Holy Scripture and the Church Fathers—the kind of man who is devout, learned, and Catholic because, (as Tertullian says in his book on the soul), only Christians know evil spirits. St Augustine derives his third rule from a large number of narratives which have something in common—that the unanimous agreement of everyone excludes all suspicion of deception or dreaming. (This argument is used in op.cit. Book 13, chapter 18.) Thus, in the case of witches from very distant places, modern writers from Italy testify the same thing: [Paolo] Grillando, [Arnaldo] Albertini, [Francesco] Silvestri, Bartolomeo della] Spina, and others. So do writers from Spain, [Pedro] Ciruelo, [Alfonso de] Castro, and [Alonso] Tostado; from France, [Nicolas] Jacquier, [Sébastien] Michaëlis, and [Pierre] Crespet; from Germany, [Jakob] Sprenger, [Johannes] Nider, and [Daniel] Moller; from Lotharingia, [Nicolas] Rémy and [Pierre] Grégoire; and from Trier, [Peter] Binsfeld, and there are also innumerable others. Witches [striges] themselves say the same in Italy as they do in Spain, and just as many in Germany as in France do and say the same. One year after another for the past eighty years without a break they have been freely confessing the same kind of thing both on the rack and outwith the torture-chamber. Moreover, they do this in so apposite a way that silly women and children, who are in other respects illiterate, give the appearance of having read, understood, and committed to memory whatever has been written on this subject and translated from the various languages of the whole of Europe. Isn’t this universal consensus more than enough to convince us that these things have not happened to those women in dreams, because if they dreamed them, how is it that they all always dream the same thing—that the same thing happened to them in the same place, at the same time, on the same day, and in the same hour?

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Ut medici docent ciborum quantitas, et qualitas, diversa aetas, et varia corporis humorum temperatio generant diversa somnia; hic idem somniant omnino, divites splendidi, et Iro pauperiores egentioresque; famelici et dapsiliter habiti; viri foeminaeque, anus, et pueri, biliosi et flegmatici, sanguinei et melancholici, ergone omnes istos tam diversae aetatis, nationis, conditionis, tempore alio atque alio, simili semper ciborum usos quantitate et qualitate, aequali temperamento corporum fuisse dicent, quia eadem semper somnia fuerunt? Dicent fortassis haec illis somnia, non a naturali causa, sed a daemone immissa, et ideo tam similia existere. Humanam igitur ista naturam superant, et a daemonibus ista procurantur. Et quaero cur non igitur concedant haec a daemone fieri vere, et non per somnium illusione, sed vigilantibus ad talia hos mali artifices abuti, cum id illis sit aeque expeditum, neque S. Scripturae, nec Patrum sententiae, nec rectae rationi refragetur. Quid? Quod non sit verisimile daemonem haec somniantibus tantum hominibus ubique omnibus adeo conformiter effingere. Id probatur, quia haec ab uno et eodem daemone simul eodem tempore non fiunt, nam unus simul pluribus locis sibi adaequatis esse nequit vel operari, ut docent Iustin. Martyr. q. 40, ad orthodox., et Dadymus, lib. 1 De Spiritu Sancto. Deberent ergo tot esse ferme somniorum immissores daemones, quot sunt sortiarii et sortiariae sic somniantes; et illis constitutis diebus non vacare alteri rei, quam somniis effigendis. Magnus hic consensus, magna discordium mentium concordia. Solent (ais) ad malum mali conspirare. Fateor, sed ad maius malum libentius, et ideo non credendi per somnium velle deludi, quos in atrociora peccata vigilantes possunt pertrahere, ideo palam magistelli, et concubini esse malunt, | et vere hanc Dei imaginem, non imaginarie tantum deturpare, incaestareque longe quoque facilius est daemoni corpora loco movere et transferre, cibum potumque

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According to what physicians tell us, the quantity and nature of one’s food, diversity in age, and the varied balance of the humours in one’s body, produce different dreams. But in this case, they—men, women, the old, the bilious, the phlegmatic, the sanguinary, the melancholy—dream exactly the same thing, that they, (people who are poorer and more needy than Irus),159 are dazzlingly rich and that, even though they are famished, they have food in abundance. So, are they going to say that all these people, who are so diverse in age, nationality, and status, have always eaten a similar amount of the same kind of food and have a uniform temperament, because they have always dreamed the same things? Perhaps they will say that these dreams did not originate with a natural cause, but were sent by an evil spirit, and that this is why they are so similar. These [dreams], therefore, are stronger than human nature and are caused by evil spirits. I also ask why, therefore, do they not grant that they really are the product of an evil spirit and not of an illusion communicated through a dream, and that for such purposes, these masters of evil have abused people while they are awake, since it is just as easy for them [to do this] and is not opposed to Holy Scripture, the opinion of the [Church] Fathers, or correct doctrine? Why? Because it is not likely that an evil spirit fashions them in such a uniform way for every individual everywhere who is merely dreaming. The proof of this is that these things are not done by one and the same evil spirit at one and the same time, the reason being that, unless he has adapted several places to himself, one spirit cannot exist or operate at the same time in them, as Justin Martyr, ([Questions and Answers] to the Orthodox Faithful, question 40), and Didymus, (The Holy Spirit Book 1), tell us. There ought to be almost as many evil spirits who are senders of dreams as there are male and female magical diviners [sortiarii et sortiariae] who dream them, and no day which has been set aside for the purpose should be without the dreams fashioned for it. On this point there is broad agreement—a great harmony of minds which are at variance. ‘Wicked people,’ you say, ‘are in the habit of acting in concert for an evil purpose.’ I agree. They quite willingly act in concert for the sake of greater evil and therefore those who are willing to be deluded by a dream and are capable of being drawn into [committing] more dreadful sins while they are wide awake should not be believed. Consequently, they prefer to be ‘little masters’160 and concubines, and to disfigure and defile this image of God in reality, not simply in their imagination. It is also very much easier for an evil spirit to move objects from one place to another, to serve food and drink, and 159 160

Arnaios or Irus was a surly beggar, described in Odyssey 18.5–30. I.e. devils, based on the title ‘Little Master’ which witches supposedly gave to the Devil himself.

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ministrare, corpus assumere vel effingere, quam imagines, simulachra, et phantasmata tam variarum rerum dormientium sensui interiori immittere et imprimere, quia strigum phantasiae eodem tempore non sunt eodem modo dispositae, nec semper omnes omnium quae repraesentanda conditiones animo ante conceperunt, maxime prima qua haec experiuntur vice; nec potest diabolus quas vult species in phantasia imprimere, ut docet B. Thom. 1. p, q. 111, art. 3 ad 2. His trib. D. Aug. canonib. examinatoriis ultimus accedat in praxi utilissimus. Quarta regula et certissima videtur: casu occurrente circumstantias omnes diligentissime debere perpendi, nam hinc clare dignoscetur an circa factum confitens fuerit delusus. Nam in re adeo occulta et arduae probationis non est moderati aut sensati hominis demonstrationes exigere, vel probationes luce meridiana clariores, tum quia dicenti esse delusum confitentem, incumbit probatio, non vero neganti, quia hic pro se habet praesumptionem, tum quia in similibus, nempe exceptis criminibus, hoc receptum est a saniore iurisprudentium parte, ut admittantur probationes alias minus sufficientes; v.g. infamium et complicum depositiones et testimonia. Sic post gloss. Salicet. Alexand. Gandin et alios docent Clarus lib. 5 § fin. q. 21, et Binsfeld. membr. 2 De confess. malef., conclus. 5. Item quo plures circumstantiae concurrent, fiet res evidentior; quando autem aliquae desunt, si absunt aliae, hae quae adsunt non enervantur idcirco, nam in his circumstantiis eadem ratio est, quae testium. Sicut enim maioris momenti sunt duo testes affirmantes, quam decem negantes se vidisse, ita in nostro casu plus momenti obtinent duae circumstantiae praesentes ad veritarem confessionis adstruendam, quam absentia vel defectus decem aliarum ad enervandam confessionem. Nam ex eo quod non est, nihil positivum potest inferri. Hoc posito videamus de singulis circumstantiis. Quoad circumstantiam quis, seu personae confitentis, considerandum an alias sibi mente constet, et ad rem apposite loquatur; an det scientiae suae vel facti non improbabiles rationes; an dicat se discernere nosse inter illusiones in

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to assume or fake a body, than it is to send pictures, likenesses, and mental images of such varied objects to the internal sense of those who are asleep, and imprint them thereon, because witches’ [strigum] passive imaginations are not disposed in the same way at the same time. The mind has not always imagined every condition of everything which can be pictured, especially the first time it is experienced, and nor can the Devil imprint on the passive imagination the likenesses he wants to imprint there, as St Thomas [Aquinas] tells us in Part 1, question 3, article 3, objection 2. The last of these three probative rules of St Augustine is the most useful in practice. A fourth rule seems to be very reliable, too. When a case presents itself, all the attendant circumstances should be considered very carefully because from these one will clearly work out whether someone who confesses to having done something has been deluded. In a matter which is so secret and difficult to prove, you see, it is not the job of a moderate or intelligent person to demand demonstrations or proofs which are clearer than the day at noon, partly because it is incumbent on the person who says he is confessing to having been deluded to prove what he says, not upon the person who says he has not, since the latter has presumption in his favour, and partly because in similar crimes, (and certainly those which fall outwith the normal legal rules), sounder legal practitioners accept that proofs which would be less sufficient in other cases can be admitted in these—the depositions and testimonies of people with a bad reputation and accomplices, for example. (This is what [Giulio] Claro says in the last paragraph of question 21 in Book 5, following [Bartolomeo da] Saliceto, [Alessandro] Alessandri, [Alberto] Gandino, and others, and [Peter] Binsfeld, Part 2 of his Confessions of Workers of Harmful Magic, conclusion 5.) Likewise, when several attendant circumstances coincide, the matter will become clearer. When others are lacking, however, if there are some which do not exist, those which do are not weakened on that account because in these circumstances the same reason obtains, as in the case of witnesses and, just as it is more important to have two witnesses confirm what they have seen than ten to say what they have not seen, so in the case we are dealing with, it is more important to have two circumstances to build up the truth of a confession than an absence of or defect in ten others to weaken it, since nothing positive can be deduced from something which does not exist. That established, let us look at individual circumstances. In relation to the circumstance ‘who’, (or the person who is making the confession), one must consider whether he knows his mind in respect of other things, addresses the subject in appropriate fashion, gives explanations which are not improbable of how he comes to know what was done, or of the deed itself, or whether he knows how to distinguish between illusions he has while

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somnis, et res ipsas quae vigilanti acciderunt, quod asserebat Ioan. de Vaulx, et Inquisitores Germani testantur esse modos dignoscendi. Minimum vero refert an sint idiotae, nam idiotae quoad sensuum externorum functiones tam pollent, quam qui docti sunt. Aetas etiam non multum ad rem pertinet, nisi si nondum essent doli capaces, quoad peccatum, vel etiam praesenio delirarent. Nec maioris momenti est conditio paupertatis vel divitiarum, nam etsi pauperes facilius in haec scelera pertrahantur; pertracti tamen non magis obnoxii sunt delusioni, quam divites et nobiles. Idem de sexu iudicium. De energumenis (nam fortassis aliquae sagae simul sunt energumenae) censuerim, quando talis aliqua ex bonis fundamentis iudici suspicio est; tunc eas curarem primo exorcizari, et facta exorcizatione, eodem loco eius confessionem haberem quo caeterorum. Nam quae in dilucidis intervallis energumeni faciunt, eorum aeque memores sunt postea atque alii; quae vero faciunt tempore vexationis, vel (ut rectius di|cam) quae tum in illis diabolus facit, eorum postea non meminerunt. Igitur quandocumque in iudicio rerum actarum probe memores sunt, et circumstantias caeteras idonee recensent, putandae sunt non illusae, nec excusandae a criminum poenis, quae confitentur se patrasse interea dum ratione recta utebantur? Raro tamen crediderim energumenas esse, quae sagae sunt; saltem post possessionem a daemone non esse factas sagas, sed vel iam ante sagas fuisse, vel quae vere sunt sagae, propter assiduam daemonis assistentiam, et maximam in eas potestatem, multa cum energumenis communia, quoad ferociam et crudelitatem potissimum, habere, vel habere videri. Secunda circumstantia (quid) comprobat confessionem, quando delictum quod confitentur, daemoni, seu per daemonem homini, non est impossibile, nec viro sapienti et erudito incredibile, quantumvis stupendum sit, et admirabile, horrendum aut execrandum. Nam talia solent ab eis patrari, et quo regnum Antichristi vicinius, hoc Satanae potestas maior concedetur, et charitate magis ac magis refrigescente, clarius atque clarius mysterium iniquitatis incipiet revelari et operari. Utrum vero aliquid sit incredibile vel impossibile, iudicium pertinet ad Theologos, qui cum humana divinam philosophiam prope con-

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he is asleep and things which actually happen while he is awake. This is what Jean del Vaulx used to say, and German inquisitors testify there are ways of distinguishing [between them]. But it matters very little whether [these people] are ignoramuses, because the workings of the external senses of ignoramuses are just as capable as those of the well-educated. Age, too, does not have much to do with it, except with regard to sin, if they were not yet capable of evil intent. Nor is their being poor or rich of particular importance, since even if the poor are more easily drawn into these crimes, once they have been drawn into them, they are not more subject to delusion than the rich or well-born; and the same can be said about their gender. When it comes to those possessed by an evil spirit, (because some witches [sagae] are demoniacs as well), I think that when a judge suspects, for good sound reasons, that one of them is a woman of this kind, were I in his place I should take care first to have these women exorcised and then, once they have been exorcised, I should hear their confession in the same place everyone else makes his or her confession. The reason is that women who make their confession during the lucid intervals of their possession can remember things afterwards just as well as anyone else. Those who confess while they are in a distressed state, however—or, to put it more accurately, during what the Devil is doing to them—do not remember things later. Consequently, during their trial, as long as they remember perfectly well what they did and give a satisfactory account of all the other circumstances, they should not be thought of as deluded, and nor should they be excused from being punished for their crimes, since they are confessing, while they are in possession of their senses, that they did these things. However, my belief is that women who are witches [sagae] are rarely demoniacs—at least that they did not become witches after being possessed by an evil spirit—but that either they were already demoniacs before they became witches, or that those who really are witches have, or appear to have, many things in common with demoniacs, principally as far as ferocity and cruelty are concerned, because of the unremitting assistance of their evil spirit and the enormous power he has over them. The second circumstance, ‘what’, confirms their confession when the offence they are confessing is either not impossible for a human being who does it via the agency of an evil spirit, or is not one which a sensible, learned man finds unbelievable, however jaw-dropping, amazing, dreadful, or execrable it may be. They are, after all, in the habit of doing things such as these, and the nearer the kingdom of Antichrist, the greater will be the power granted to Satan; and while fellow-feeling grows colder and colder, the secret worship of iniquity will start to be revealed more and more clearly and begin to do its work. But whether something is incredible or impossible is a decision which belongs to theologians, who combine human and divine philosophy. Those

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iunxerint; nudi vero litteratores, Iuristae, vel Medici, non sunt idonei iudices, multoque minus homines quidam Lucianii, et Athei, seu polytici nostri trochi, pietatis, publicae salutis, et Catholicae religionis negligentissimi, ambitionis vero et divitiarum undiquaque aggregandarum studiosissimi. Quid vero adeo abominabile fateri possunt, quod non factum alias comperiamus? Incaestus, Sodomiae, parricidia fidei apostasiae, sacrilegia; nostris temporibus, nonne ludus? Antropophagiam horrent animi, sed possem singularum fere nationum proferre non pauca exempla. Carybas mala consuetudo; Iudaeos, Italos, Hispanos aliquando adegit durissimum famis telum, non minus efficax odii magnitudo plane belluina superioribus annis Angrae quendam Lusitanum N. Pilator tria Castellanorum corda trepidantia vorare adegit, ut narrat Histor. De las Terceras. Quid Mattiacum aliud (quo te, o Belgica mea, haeresis avertit!) nautam? Sed nolo meis verbis, carmine volo cognoscas Lector Nobilis Nortwici: Lagdunum, cingit, Batavorum, miles Iberus, Abatavo contra cingitur ille mari. Non opus est gladis ferroque rigentibus armis, Solae pro Batavo belligerentur aquae. Iacturam pecoris Batavus quam fecit, et agri, Hispano decies sanguine Ibere lues. Mircator sapiens tamen haud mercabitur una Hispani generis corpora mille bovi. Macra caro est, nuper cum cor gustasset Iberi Respuit, et canibus nauta vorare dedit, etc.

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with a bare smattering of knowledge of the law or medicine, however, are not suitable judges, much less certain people who are sceptics and atheists, or the politicians of our own day, who play childish games and are completely heedless of religion, public welfare, and the Catholic religion, but are very eager to increase their personal wealth and the number of people who vote for them.161 But what is it they can confess that is so abominable that we cannot find it done at other times and in other places? Debauchery, sodomy, the parricide of apostasy from the Faith, sacrilege? In our day wouldn’t you say it is the Sabbat [ludus]? Cannibalism horrifies us, but I could offer not a few examples of it from almost every single nation. It is a wicked habit among the Caribs, a most dreadful shaft of hunger has sometimes driven the Jews, the Italians, and the Spanish to it and, (no less effective), a clearly bestial amount of hatred a few years ago, (as the author of The Story of Las Terceras tells us), drove N, a Portuguese robber, to devour the still-beating hearts of three inhabitants of a fortress in Angra.162 What else [can one expect] of a sailor from Mateus? This, my homeland, is where heresy is leading you! But I do not want you, noble Reader, to find it out from my words. I want you to find it out from a poem by Noordwyck.163 ‘The Iberian soldier invests Leiden. He, on the other hand, is girdled by a Dutch sea. There is no need for swords and weapons stiff with iron. The waters alone wage war on behalf of the Dutchman. The Dutchman has thrown away his cattle and land, And this has been a disaster ten times over for Spanish blood. But the shrewd merchant will not trade A thousand bodies of the Spanish race for a single ox. There is very little meat. Recently, a sailor tasted a Spaniard’s heart, Spat it out, and gave it to his dogs to eat,’ etc.

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Del Río calls them trochi = ‘children’s hoops’, hence ‘who play childish games.’ His adjective politici suggests he had politicians in mind, as does his mention of their ambitio which means the canvassing of candidates for public office. It is not clear where this is. There is an Angra do Heroismo and an Angra dos Reis, both in Brazil. Noordwyck = Janus Dousa = Jan van der Does, Lord of Noordwyck, Governor of Leiden during its double siege by the Spanish in 1573–1574. ‘The waters alone wage war’ is a reference to the dykes’ being broken deliberately during the second siege, in August 1574.

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Nam plura addit. Comesse potuit, qui in tam immani facinore ludere, sed Dinothus tamen dissentit, nam ait hunc Laestigonem abiecisse, sed tamen alium arrosum id Delftum transtulisse, pietate? Ludibrio, et petulantia. Idem Dinothus fatetur, lib. 5 Historiae Gallicae, persuasam plebem Catholicam fuisse, pueros ab uberibus matrum per Hucnossios seu Calvinistas avelli, verubus infigi, et instar haedinae aut aprugnae mandi peravide consuevisse. Verus necne rumor ille fuerit, non habeo affirmare; malo falsum credere, quamvis | genius sectae non abhorret. Tamque crudelia tertii ullius belli civilis facinora fuere a Calvinianis perpetrata, ut ea posteritas numquam sit creditura. Nihil ergo tam crudele, vel nefarium sagae profiteantur, quod non sit exemplis contestatum. Puto me hoc opere toto singulorum criminum multiplicia memorasse, et reperiri, quae unam in personam omnia concurrant, scripsit ad me ex nostris, vir fide dignus, Gaspar Rhey, anno 1600, in haec verba: “Hic Monachii 27 Novemb. mater filiaque, duo viri, puerque duodennis (erat hic ex reliquiis eorum, qui non multo ante hoc tempus itidem hic flammis cremati, aut stipitibus induti) atroci prorsus supplicio affecti fuerunt. Medea fabula est, Thyestet fabula est; superos et inferos polluerunt, vis verbo dicam, quicquid scelerum in libris, quos de magia, inscribis, admiserunt isti, hoc ex ore Iudicis iurati, qui in veneficos hosce et quaestionibus egit, et illos (libros inquam tuos, ac diligentissime, perlegit) praesens audivi. Itaque sexies urbem intra usti sunt ferro ac laminis, extra perfractis ante brachiis a rota in rogo ustulati sunt vini.” Non ergo attendendum iudici ut credat, immane magis vel minus sit facinus, sed in ipso considerandum facinore, quantumcumque sit, an quod a se patratum fatentur, id vere patratum fuerit: v.g. dicit se commovisse tempestatem et grandinem praecipitasse in agrum Titii vicini sui; videat an vere tum

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(He adds more). A man who was capable of mockery by committing such an enormity could have eaten it. [Richard] Dinoth, however, disagrees because he says that this Laestrygonian [cannibal] threw it away. Yet he still made use of something else from Delft, which had already been gnawed. [Did he do this] out of religious devotion? [He did it] in a spirit of mockery and wantonness. In Book 5 of his French history, this same Dinoth says that the great mass of the Catholic people was convinced that Huguenots or Calvinists were in the habit of tearing children from their mothers’ teats, sticking them on spits, and greedily devouring them as though they were young goats or boar.164 Whether that piece of gossip is true or not, I am not in a position to say. I prefer to believe it is false, although the natural instinct of the sect does not shudder at it, and so cruel were the crimes perpetrated by the Calvinists during that third civil war that a future age will never believe they happened. Witches [sagae], therefore, confess nothing which is so cruel or criminal that it has not been testified by [other] examples. I think that during the course of the whole of this work I have mentioned a good many examples of crimes by individuals, and that one can find everything which happens to a single individual. A man worthy of being believed, a member of the Society of Jesus, Gaspar Rhey, wrote to me in 1600 as follows.165 ‘Here in Munich, on 27th November, a mother and daughter, two men, and a twelve-year old boy—he was a survivor of those who, not long before this, were burned here or put in the stocks—suffered an absolutely dreadful punishment. Medea is a story. Thyestes is a story. They dishonoured the powers above and the powers below. Do you want me to spell it out? Any crime you include in your books about magic, these people admitted [to having committed]. I was present and was told this under oath by the judge who proceeded against these workers of poisonous magic [veneficos] and had them tortured. He read them thoroughly, (I mean your books), with very great care, and in consequence these people were branded six times inside the city after having had their arms broken on the wheel outwith the city. They were then burned alive at the stake.’ A judge, therefore, should not concern himself with whether the crime is more dreadful or less, but whether, in relation to the crime itself, regardless of its degree of seriousness, [the accused] actually did what they confess to having done. For example, she says she raised a storm and caused hail to fall on her neighbour Titius’s field. The judge should find out whether a violent storm did 164 165

Richard Dinoth (floruit second half sixteenth century) wrote an account of the French civil war (‘De Bello Civili Gallico’) which was published in 1582. Gaspar or Kaspar Rhey (1570–1625) was originally from Switzerland and played an important role in the development of Jesuit theatre in Germany.

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ager ille oborta procella fuerit grandinatus. Dici sese stregasse (ut loquuntur) filiolum N. et vere puellus nullo apparente morbo contabuit, fortassis etiam cicatrix parvula, in pectusculo vel gutture pueruli inventa. Dicit se necasse vaccas aut iumenta N. defossa sub limine stabuli olla, quae ibidem reperta; aut solo contactu necasse dicit, et visa fuit tangere, nec certa mortis causa apparet alia. Dicit et adolescentula 10 vel 11 annorum cum solo daemone consuesse, quae per inspectionem foeminarum peritarum devirginata invenitur. Nec vere peccatum strigum ullum est difficilioris probationis aut suspectius de delusione, quam nefanda cum daemonibus Venus. Remigius tamen indicia duo suggerit, si post tam nefario concubitu defuncta prae latissitudine per aliquod tempus ei decumbendum fuerit, aut si substrata lintea largo cruore sint perfusa, quae duo sagae duae in actis confessae fuerunt: lege illum lib. 1, cap. 6. Sane haec sunt indicia clara quibus saga queat cognoscere se non somniasse. Immo quoad viros etiam, censent Iaque. et alii, numquam sic deludi quoad concubitum, quin discernere queant, an vigilantes id fecerint, licet enim initium in somnis potuerit contingere, in ipse tamen patratione necessario volunt hominem expergiscere, atque id aiunt docere illorum experientiam, qui foedis huiusmodi imaginationibus inter dormiendum commaculantur. Et haec fuit Hebraeorum iam olim opimo: “quod rerum natura non capiat quenquam coire nescientem,” ait D. Hieron. Traditione in Gen., qui non refellit, ut nec Rupertus, et idem tenent Liran. Tostat. et Oleastrius, in cap. 19 Gen. agentes de ebrii Loth incaestu; scio D. Iren., lib. 4, cap. 51, et D. Chryso. Hom. 44. in Gen., Theodoret., Ambros. et alios voluisse haec omnia prorsus ignoro nec sentiente Loth facta, quod naturaliter fieri posse, etiam Caiet. et Perer. noster censuerunt. Nec quicquam dubito a daemone adeo fortiter aliquem soporari posse, ut ne in

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spring up and hail did fall on the field at that time. She says she ‘bewitched’, (as they put it), her little son N, and in fact the wee boy wasted away, even though, apparently, he was not ill. Perhaps, too, a tiny scar was found on the little boy’s chest or throat. She says she buried a jar under the threshold of a stable—it was found there later—and killed the cows and oxen, or that she killed them simply by touching them and was seen to touch them, and there did not appear to be any other particular reason for them to die. She says she was in the habit of consorting with an evil spirit when she was a girl aged ten or eleven, and when she is examined by women who know what they are looking for, she is found to have lost her virginity. No witches’ [strigum] sin is more difficult to prove, or more suspected to be a delusion than heinous love-making with evil spirits. [Nicolas] Rémy, however, suggests two indications of it: (i) if, after she has finished her wicked copulation, she has to take to her bed for a while because she is tired out, or (ii) if there is a large blood-stain on the bed-sheet. (Two witches [sagae] confessed these two in court-records. Read Rémy Book 1, chapter 6.)166 When it comes to men, however, [Nicolas] Jacquier and others think that they are never deluded as far as copulation is concerned, but that they can distinguish whether they did it while they were awake, because although it can start to happen while they are asleep, when it comes to the actual climax, [Jacquier and the others] mean that the man inevitably wakes up, and they say this is the experience of those men who defile themselves during sleep because of filthy mental images of this kind. This was also the opinion of the Jews in past times, ‘because it is not in the nature of things for anyone not to know he is having sex,’ says St Jerome, in Transmission of Genesis, not contradicting it. Rupert [of Deutz] does not contradict it, either, and [Nicholas of] Lyra, [Alonso] Tostado, and [Jerónimo] Oleastro are of the same opinion in their commentaries on chapter 19 of Genesis when they deal with drunken Lot’s incest.167 I know that St Irenaeus in Book 4, chapter 51, St [John] Chrysostom in sermon 44 on Genesis, Theodoret, St Ambrose, and others have said that absolutely all this was done without Lot’s knowledge or his being aware of it, and [Cardinal] Cajetan and the Jesuit [Benito] Pereira also thought that this can happen naturally. I have no doubt at all that an evil spirit can put someone

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This refers to the evidence of Nicole Morèle, 19th January 1587 and Didatia from Miremont, 31st July, 1588. St Jerome: the reference is to his Jewish Questions on Genesis and his commentary on 19.33, when one of Lot’s daughters decided to have sex with her father and he did not realise what was happening because he was drunk and asleep at the time. Rupert of Deutz, (c.1075/1080–c.1129), was a Benedictine theologian and Abbot of Deutz, an abbey which would now be in the suburbs of modern Köln.

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decisione quidem seminis dormire desinat. Posset itaque daemon sic sagis illudere, fateor. Verum causam non video cur id in diabolicis hisce mancipiis fieri suspicemur, quae (ut narrat | Spreng.) non raro repertae sunt in agris clara luce supinae, et crissantes, et postea visus teter vapor ab earum corpore se sursum elevare, quem illae in actis suum incubum fuisse confitebantur. Item, quando affirmant se ad conventum delatas, vel iter pedibus confecisse, et visae sunt ab aliis ire, aut in chorea ab aliis agnitae; et complices asserunt se simul adfuisse, et in reliquis circumstantiis conveniunt. Quando post reditum a conventu aliquot diebus aegri, ut multi apud Remig. et Binsf. quando reperta vasa convivantium, ut a Ianione Camerarii, quando inventae nudae in agris a cursu revertentes, ut Grillandi Lucretia, quando post multum denique tempus ac laborem domum rediere, ut Presbyter Pici, et Nob. ille Lochiensis Bodini, quando quassatis membris semineces ex nube in terram deiecti, ut iuvenis Batavus Ronssei, aut in arborem, ut Margareta et armentarii Remigiani. Denique quando se aiunt cattum vel quod aliud animal induisse, et vestigia patrati sub tali larva criminis apparent, ut sanguis pueri exsucti in cunis, apud Spin. vel vulnus in strigum corpore, qua parte schema ferinum convulneratum fuerat, ut cattus eiusdem Spinei, et bufo apud Ipras flandriae. Denique haec circumstantia (quid) innumera indicia iudici queat praebere, sed notanda duntaxat, quae rem ipsam, de qua quaeritur concernunt, v.g. vel delationem, vel concubitum. Nam si haec verisimilia, parum attinet, etiamsi parerga quaedam admiscean-

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into such a deep sleep that he keeps on sleeping, even when he discharges his seed. I therefore acknowledge that an evil spirit could delude witches [sagis] this way. But I do not see why we should suspect that this happens in the case of these slaves of the Devil. They, (as [Jakob] Sprenger tells us), are not infrequently found lying on their backs in the fields in broad daylight, moving their haunches, and later a foul mist, which the women would confess in court-records was their incubus, has been seen to rise upwards from their body. It is the same when they say they have been taken to a meeting, or have made the journey on foot, and others have seen them going or recognised them while they were dancing, and when their accomplices claim they were there at the same time, and agree about all the other circumstances; when, after their return from the meeting, they are sick for several days, as many instances tell us in Rémy and Binsfeld; when banqueters’ dishes have been found, as they were by Janio in Joachim Liebhard’s book;168 when they have been found in the fields, coming back naked from their journey, as was Lucretia in [Paolo] Grillando; when at last, after a long time and much trouble, they have come back home, as does the priest in [Gianfrancesco] Pico [della Mirandola], and the nobleman from Loches in [Jean] Bodin; when, violently shaken in every part of their body, they have been hurled, half-dead, to the ground from a cloud, as was the young Dutchman in [Baudouin van] Ronss, or into a tree, as were Marguerite and the herdsmen in Rémy; and finally, when they say they have transformed themselves into a cat or some other creature, and traces of the crime they have perpetrated under this kind of guise appear, such as [Bartolomeo della] Spina’s account of the blood of a child they had sucked dry in his cradle, or Spina’s story about the wound which had been made on the witches’ [strigum] body while they were disguised as a wild animal, such as the cat Spina mentions, and the toad in Ypres in Flanders. Lastly, this circumstance (what) can furnish the judge with innumerable pieces of evidence, but he should pay attention only to those which concern the actual subject under investigation— for example, either the [witch’s] transportation or her copulation, because if these are likely to be true, it matters little if a number of irrelevances which are less likely to be true are mixed in with them as well, the reason being that the

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Joachim Liebhard (1500–1574). Del Río refers to him as ‘Camerarius’, his pen-name. He was a Classical scholar, an indefatigable translator of Greek texts, and author of multifarious other works on subjects as different as numismatics and horsemanship.

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tur minus verisimilia; ideo enim solet diabolus falsa veris assuere, ut ne veris quidem fides constet; quod in confessione Mantensium Necromanticorum ex Crespeto alias ostendi; item in exemplis quibusdam a Remig. adductis. Denique in hac circumstantia, quae omnium praecipua est, audiat Iudex prudens prudenter monentem Plutarchum: “Quodammodo philosophiam tollunt, qui reb. mirabil. fidem non habent. Oportet autem quam ob causam aliquid fiat ratione tractare, quod vero id fiat ex Historia est sumendum”: lib. 5, Symposiac., cap. 7. Itaque narrationi reorum stare oportet, quae tot Historiis est comprobata. Hanc incredulitatis adversariorum ex inscitia natam pertinaciam iampridem veteres damnaverunt. Apul., lib. 1 De asino, asserit hominibus multa evenire usu mira, et plane vera, quae tamen ignaris relata fidem perdant. Dionys. Halicarnass., lib. 5, Antiquit., docet hoc unicuique insitum a natura, ut ex propriis ea quae de aliis dicuntur iudicemus, et an aliquid credibile vel incredibile sit, id ex propriis viribus metiamur. Plinius autem senior (locus excidit) “quemadmodum (ait) multa fieri non posse, priusquam facta sunt, iudicantur ita multa quoque quae antiquitus facta sunt, quia nos ea non vidimus, neque rationem assequimur, ex iis esse quae fieri non potuerint iudicamus. Quae certe summa insipientia est.” Tertia circumstantia est cur? Utpote si habuit causam tum temporis ad pactum cum daemone ineundum; puta insatiabilem libidinem, pusillanimitatem, desperationem, desiderium vindictae, curiositatem, egestatem subitam aut valde gravem, et huiusmodi, quibus impelli consuevisse: Theophili, Edelini et aliorum exempla declarant.

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Devil is accustomed to stitch things which are not true on to things which are, so that people cannot trust even what is true. I have pointed out elsewhere, (my source being [Pierre] Crespet), that this [can be seen] in the confession of the necromancers from Le Mans. (Likewise in a number of examples drawn from Rémy.) Lastly in connection with this circumstance, which is the most important of all of them, an experienced judge should listen carefully to Plutarch’s warning. ‘To a certain extent, those who have no faith in marvels destroy philosophy. One must, however, use reason to discuss why something happens, and one’s example of what happens should be taken from history,’ (Symposiacs Book 5, chapter 7.) It is therefore necessary to stand by the story the accused tell, when it has been confirmed by so many instances from the past. Long ago the ancients condemned objectors’ stubborn incredulity which is born from stupidity. In Book 1 of The Ass, Apuleius maintains that many extraordinary things do happen to people and that they are clearly true, but that they lose credibility when told to ignoramuses. In Book 5 of his Antiquities, Dionysius of Halicarnassus tells us that it has been implanted in each one of us by Nature to judge the things said about others by their characteristic signs, and to measure whether something is credible or incredible from its own essential nature. Pliny the Elder, however—the exact reference escapes me—says, ‘Just as many things are judged to be impossible before they have actually happened, so we also judge many things which actually did happen in the old days to be impossible because we have not seen them, and we do not follow up the logical conclusion from this, that there are things which could not have happened. This is certainly the height of stupidity.’169 The third circumstance is why, in as much as she had a reason at the time for entering into a pact with an evil spirit—insatiable lust, for example, simplemindedness, despair, desire for revenge, inquisitiveness, sudden or very dire poverty, and so forth, which have usually been the driving forces. (The examples of Theophilus, Edelinus, and others make this clear.)

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This appears, for whatever reason, as a quotation in the printed text, but actually only ‘How many things are judged to be impossible before they have actually happened?’ comes from Pliny, Inquiry into Nature Book 7, 6–7. The rest is Del Río’s own comment.

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Quarta, quomodo, non est magno usui, quia parum refert an modum ignorent; sufficit quid ex parte sua fecerint, et quibus usae sint instrumentis. Occulta sunt plerumque Satanae stratagemata, et media naturalia. Sat erit si indicent, quibus usae, pulveres, unguina, decermina mortuorum, buffones, ollae etc., maxime si ista compareant apud illas, vel visa, vel reperta quibus asserunt locis. Modus | etiam operandi sedulo distinguendus est ab ipsa rerum adhibitarum efficacitate; quamvis enim quod saga se dicit adhibuisse, hoc sit secundum se inutile ad effectum producendum; sufficiet, si pro signo esse queat: nam efficacitatis vis omnis pendet, a peritia et operatione ipsius diaboli ad signum operantis, ut patet in transvectionibus, et procellis cienstis, similibusque. Quinta quibus auxiliis: hoc est an ope daemonis et cum quibus complicibus; hoc indicium frequentissimum et optimum est, quia fatentur complices se simul fecisse. Videtur autem incredibile omnes eodem modo circa singulas circumstantias delusas fuisse; quamvis enim tam facile foret daemonibus decem decipere, quam unum; tamen non est censendus Deus hoc aeque permittere. Ne omnis ratio probandi talia delicta occulta iudicibus adimatur; hoc enim dissentaneum est providentiae divinae. Sexta est ubi, quae minimi momenti est. Nam possunt aeque deludi uno loco atque alio, Deo permittente. Septima circumstantia (quando) non multum attendenda, quia tantum uno, quantum alio possunt die, quantum interdiu, tantum noctu, et quovis tempore decipi a daemone possunt. Adminiculantur tamen hae duae ultimae reliquis circumstantiis ad earum confirmationem, cum testes conveniunt in loco et tempore, nec nihil probabilitatis habent locus famosus, aut tempus solemne (hoc est dies ordinarii) quibus earum scelerosa conciliabula celebrantur. Sed (inquiet) potest in conventu innocens repraesentari, adeo ut multi testes postea deponant eum se illic vidisse. Respondi alias, vel Deum id nunquam passum, vel si passus fuit aliquando eos infamari; nunquam tamen passus est eos damnari. Sed mox eorum innocentiam in lucem protulit, ut in illo ipso facto B. Germani, quod adversarii urgent, et certius probatur ex D. Athanasii iudicio, qui falso accusabatur brachium Arsenii ad usus magicos abscidisse.

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The fourth is how. This is not particularly useful because it is of little importance whether they did not know how to do what they did. It is enough to know what they did and what tools they used. On the whole, Satan’s stratagems are concealed, and his means belong to Nature. It will be enough if [the accused] indicate the things they used—powders, ointments, bits cut from dead bodies, toads, jars, etc., especially if these turn up in the women’s houses, or have been seen or discovered where the women say they are. One should distinguish their working-method, too, from the effectiveness of the objects they employ, because even though a witch [saga] says she has employed something, it may be useless for producing the effect she says she wanted to achieve. It will be sufficient if it can serve as a signal [to her evil spirit], because the whole force of its effectiveness depends on the skill and working of the Devil himself who operates in answer to a signal, as is clear in the cases of his transporting [witches], stirring up storms, and so forth. The fifth is with what assistance—that is, whether with the help of an evil spirit or of accomplices. This piece of circumstantial evidence is very common and very good, because the accomplices acknowledge they did it all together. But it does seem incredible that they were all deluded in the same way with regard to individual circumstances, because although it would be just as easy for evil spirits to deceive ten of them as one, one should not imagine that God allows this to happen in the same way, lest judges be deprived of every motive for proving this kind of hidden offence, since this is not consonant with divine foresight. The sixth is where. This is of very little importance because they can be deluded in one place just as well as in another, if God permits it. The seventh circumstance, when, need not receive much attention, because they can be deceived by an evil spirit on one day just as on another, and during the day just as during the night. These last two circumstances support the rest by confirming them, when witnesses agree about the place and time, and a well-known place or established time, (that is, the customary days on which they hold their criminal assemblies), can certainly provide proof. But, (someone will say), it is possible for an innocent person to be represented as being at a meeting, in as much as many witnesses later depone that they saw him there. I have given my answer elsewhere—that either God has never allowed this or, if He has allowed it on occasion, they are people with a bad reputation. However, He has never allowed them to be found guilty, but has brought their innocence to light not long afterwards, as in the case of St Germain, which objectors urge {as an argument]. It is proved with greater certainty from the case of St Athanasius who was falsely accused of having cut off Arsenius’s arm so that he could use it for magical purposes. Finally, if any

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Demum si quid huiusmodi argumentum valeret in adulteris, homicidiis et aliis etiam valeret. Nam posset etiam diabolus in latronum cavernis, et lustris libidinosorum innocentem exhibere tanquam adulterum vel homicidam; quod quidam B. Silvano narrant accidisse, aequali historiae fide, qua illi de B. Germano memorant, et de Santarenensi monacho habes inferius: lib. 6, cap. 2, sect. 3, q. 3, aa. Si concedunt aeque in aliis criminibus hoc locum obtinere, nae illi quam fidum sceleratis patrocinium, tam infidam reipub. et Deo navant operam; nihil enim accommodatius sit ad criminosos omnes suppliciis eripiendos. Si negant in aliis peccatis idem locum habere, doceant cur in solo crimine fascini daemon hoc possit, et non in aliis. Sat scio nunquam idonee docebunt. Sextum argumentum est malefici non sunt occidendi, propter abnegationem fidei, quia omnes homines, dum mortaliter peccant, fidem abnegant, et daemoni, relicto Deo, adhaerent, et tamen non propterea occiduntur. Conf. B. Petrus ter Christum negavit, et tamen non fuit propterea necatus. Respondeo: Peccatores recedere a Deo per inobedientiam tantum, et ideo improprie dicuntur propterea infideles, et fidem negare, sed malefici seu lamiae recedunt a Deo per expressam abnegationem Dei et fidei, quod ast apostasia, proprie dictae infidelitatis species, constituens peccatum unum specifice a caeteris mortalibus peccatis distinctum, ut optime | deducit Binsfeld. in lib. 7, C. De malef., in resp. ad 1. arg. Quoad B. Petrum, ille tantum peccavit contra praeceptum confessionis fidei, fidem vero nequaquam amisit. Malefici fidem corde et ore abiiciunt, idque sponte, nullo urgente metu. Petrum statim poenituit, sagae manent in sua defectione; plura de Petri negatione egregia invenies apud Fr. Soarem., tom. 2, in 3, p. D. Thom. Septimum argumentum. Deus permittit maleficia fieri, et sinit maleficos vivere: ergo non debet eos homo occidere. Respondeo: Ridiculum esse quod inferunt; sic enim sequeretur nullorum criminum reos occidendos, quod esse haeresim certam, docent Castr. et alii Catholici scriptores. Nonne magistratui gladius a Deo datus ad vindictam malorum? Ex his apparet quam ridicula sint argumenta adversariorum. Sit ergo: Conclusio: Lamiae occidendae etiamsi hominem nullum veneno necassent, etiamsi segetibus, et animalibus non nocuissent; etiamsi necromanticae non

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argument of this kind were valid, it would also be valid in cases of adultery, murder, and other [crimes], because the Devil could also produce an innocent person in robbers’ lairs and the debaucheries of the libidinous as an adulterer or murderer. A number of people say this happened to St Silvanus. This story is just as believable as the one they tell about St Germain, and you have one later, (Book 6, chapter 2, section 3, question 3, letters aa), about the monk from Santarém. If they admit that this is equally relevant in the case of other crimes, they are doing something which provides as loyal a defence of criminals as an activity which is disloyal to the state and to God, because nothing can be more useful for plucking all those guilty of committing crime from suffering punishment. If they say it is relevant in the case of other sins, let them tell us why an evil spirit is capable of this only in the crime of casting the evil eye [ fascini] and not in others. (I am well aware that they will never explain this satisfactorily.) A sixth argument is that workers of harmful magic should not be executed because they have denied the Faith, the reason being that when any human being commits a mortal sin, he denies the Faith, abandons God, and cleaves to the Evil Spirit, and yet he is not executed on that account. Confirmation of this is that St Peter denied Christ three times but was not killed on that account. My answer is that sinners depart from God simply because of disobedience, and therefore it is not right to say that because of this they are without faith and deny the Faith. Apostasy, properly speaking, is a kind of faithlessness and constitutes a sin which is different in kind from all other mortal sins, as [Peter] Binsfeld explains very well in Confessions of Workers of Harmful Magic Book 7, response to the first argument. As for St Peter, he sinned only against the precept of the confession of faith, but in no way lost his faith. Workers of harmful magic throw away faith in heart and word, and do this of their own accord without being pushed into it by fear. (You will find more about At Peter’s remarkable denial in Francisco Suárez, Vol. 2 on the third part of St Thomas [Aquinas].) A seventh argument. God allows acts of harmful magic to happen and permits those who do them to live. Therefore, a human being ought not to kill them. My answer is that their deduction is ridiculous, because it would follow from this that none of those guilty of any crimes should be executed, and [Alfonso de] Castro and other Catholic writers tell us that this is undoubted heresy. Hasn’t God given the magistrate a sword to execute vengeance on the wicked? [Romans 13.4]. From this it is clear that objectors’ arguments are ridiculous. So that’s all that need be said about that! Conclusion: witches [lamiae] should be executed even if they have not poisoned anyone, even if they have not harmed crops and animals, and even if

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forent, eo ipso tantum quod daemoni foederatae, quod conventui interesse solitae, et quae ibi exercentur praestare. Probatur id primum iure divino, Exodi 22, v. 19: “Maleficos non patieris vivere.” Quo loco vox Latina est admodum late patens, nec restringenda ad solos venenarios, ut nec Graeca nec Hebraea, quod quia fuse probavit, hic non repetam; idem statuitur Levit. xx, vers. ult. Secundo, probatur iure humano, lege Ecclesiastica, cap.: pervenit c. contra idolorum., 26, q. 5. Exiravagat. variis, una Ioann. xxii super specula, alia Innoc. viii, quae ponitur ante Malleum malef., alia Alexand. vi: incip. cum accepimus, alia Leonis x. incip. honestis petentium votis, alia Had. vi incip. Dudum uti nobis. Et lege saeculi, scripta quidem l. multi. l. nemo l. nullus. l. etsi. C. de malef. et mathem.; non scripta vero, consuetudine fere Universali Europae, iudicum Ecclesiasticorum, qui solent brachio saeculari eos tradere, et iudicum secularium ut patet ex scriptoribus qui res criminales prosecuti sunt nationum omnium: Italorum: Blanci, Carrerii, Grillandi, Gandini, Clari, Follerii, Bossii, et alior.; ex Hispania: Bern. Diaz. Plaçae, Aviles., Avendanni, Covarr., Gregorii., Lop.; ex Galiis: Fabri, Millei, Michaelii, Iaquerii, Berberii, Remigii; ex inferiore Germania: Damhauderii; ex superiore: Althusii., Godelmann., Fichardi, Molleri et ipsorum patronorum Lamiacorum, qui dum quaeruntur, et improbant, contestantur consuetudinem, hanc invaluisse. Haec pp. rescripta, hanc Impp. sanctionem, hanc Europae generalem

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they are not necromancers, simply because they have made a pact with an evil spirit, because they are usually present at a meeting [sabbat], and because of what they do while they are there. This is proved first of all by divine law: Exodus 22, verse 19, ‘You will not allow workers of harmful magic to live.’ In this verse the Latin word clearly has a very wide range of meaning and should not be restricted simply to those who deal in poisonous substances. Neither the Greek nor the Hebrew does so, and because I have proved my point at length, I shall not repeat myself here. The same thing is decreed in the last verse of Leviticus 20.170 Secondly, it is proved by human and ecclesiastical law:171 chapter ‘it has come [to Our ears]’; chapter ‘Against [worshippers] of idols’, [canon Episcopi] 25.q.5; and various Papal constitutions not included in the Decretals: (1) John xxii ‘On Mirrors’, (2) Innocent viii, attached to the beginning of The Hammer of Women who practise Harmful Magic, (3) Alexander vi, beginning ‘We have received’, (4) Leo x, beginning ‘With the honourable prayers’, (5) Hadrian vi, beginning ‘Not long ago, as [you made known] to Us’; and written secular law, ‘many people’, ‘no one, even though’, and Codex, ‘on workers of harmful magic and astrologers’, and by the unwritten custom of ecclesiastical judges in almost the whole of Europe, who usually hand them over to the secular arm, and of secular judges, as is clear from writers of every nation who have dealt with criminal matters: from Italy, [Marco Antonio] Bianchi, [Lodovico] Carrerio, [Paolo] Grillando, [Alberto] Gandino, [Giulio] Claro, [Pietro] Follerio, and [Egidio] Bossi; from Spain, [Juan] Bernardo Díaz [de Luco], [Pedro de] Plaza [y Moraza], [Francisco de] Avilés, [Pedro Núñez de] Avendaño, [Diego de] Covarrubias, and Gregorio López; from France, [Antoine] Favre, Milleus, [Sébastien] Michaëlis, [Nicolas] Jacquier, [Johannes] Berberius, [Nicolas] Rémy; from Lower Germany, [Joost] Damhouder; from Upper Germany, [Johannes] Althusius, [Johann] Gödelmann, [Johann] Fichard, [Daniel] Moller, and the actual protectors of witches who, while they bewail the custom and disapprove of it, bear witness that it

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‘A man or a woman in whom exists the breath of soothsaying or divination should be put to death. People will overwhelm them with stones and be responsible for their death’. A marginal note adds here: ‘as all those who have written in connection with the Inquisition tell us’: A Lantern for Inquisitors; the well-known Inquisitors’ Handbook by Bernard of Como, and the one by Nicolas Eymeric; A Road-Map for Inquisitors by [Jean] Barbier; [Jakob] Sprenger in The Hammer; Nicolas Jacquier in his Scourge; [Diego de] Simancas in Practice; Alfonso a Castro in Just Punishment, chapter 16.

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consuetudinem, haec decreta cunctorum tribunalium accusare mendacii, hoc est contendere falsum supposuisse et asseruisse; quod nomen, quod supplicium meretur. Tertio probatur ratione: criminis gravitati commensuranda poenae gravitas; gravitas autem criminis petenda a personae offensae dignitate, et ab ipso offensionis modo. Offenditur a Lamiis Deus Opt. Max. et Deipara et omnes coelites, et universa Ecclesia, genusque humanum, et animata inanimataque omnia; nam Deo et superis maledicunt, et blasphemant; caeteris creaturis abutuntur, et exitium parant; idque modis contumeliae et crudelitatis plenissimis; primo intervenit idololatria, gravior quam Israelitarum, illi vitulum aureum adorabant, coram eo bibebant, saltabant, canebant; hi coram daemone ipso, cui et devovent, cui sacrificant, cui fidelitatis et obedientiae sacramentis se addicunt; coram hoc (inquam) edunt, bibunt, | choreas ducunt cantillant, faedissimeque multa operantur. Secundo consulunt ipsum daemonem frequenter, quod ipsum morte dignissimum ex lege Dei. Tertio offerunt filios et filias suas daemoniis: lege Dei iubentur occidi, qui semen suum offerunt Moloch. Quarto eadem

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has grown strong.172 To accuse these official edicts of the Church Fathers, this sanction of the Emperor, this general custom of Europe, these legal decisions from every court-room, of lying is to maintain that they are putting forward and maintaining something which is not true, and that is a claim which deserves to be punished. Thirdly, it is proved by the argument that the seriousness of the punishment should be commensurate with the seriousness of the crime, and the seriousness of the crime should be measured by the rank of the person who has been offended and by the actual method used to commit the offence. Witches [lamiis] offend Almighty God, the Mother of God, all heavenly beings, the universal Church, the human race, and all animate and inanimate things, because they revile God and heavenly things, and blaspheme against them. They abuse every other created thing and prepare death for them, doing so in ways which are full to the brim of contumely and cruelty. (1) Among other things, idolatry, worse than that of the Israelites, takes place. They used to worship a golden calf, drink, leap about, and sing in front of it. Witches do so in front of the Evil Spirit himself, devote themselves to him, offer him sacrifices, and make themselves over to him by oaths of loyalty and obedience. In his presence, I say, they eat, drink, dance, sing in low voices, and do much that is absolutely disgusting. (2) They frequently consult the Evil Spirit himself and this itself, according to the law of God, is entirely worthy of the death penalty. (3) They offer their sons and daughters to evil spirits. The law of God commands that those who offer their seed to Moloch be executed. (4) The same law commands that a man who 172

Marco Antonio Bianchi, here referred to as ‘Blancus’, (1498–1548), published a treatise on evidence, Tractatus de Indiciis, Venice, 1546; Lodovico Carerio published a book on the practice of criminal law in 1556; so did Pietro Follerio (c.1518–1588) and so did Juan Bernardo Díaz (1495–1556), Bishop of Calahorra, in 1543. Pedro de Plaza y Moraza (1524–1564), published a summary of criminal offences and cases in 1558. Francisco de Avilés published A New, Careful, and Very Useful Exposition .... of the Laws .... of the Whole of Spain in 1557. Egidio Bossi’s collected papers, largely dealing with the use of torture in criminal trials, were published post mortem in 1562 under the title Various Treatises. Pedro Núñez de Avendaño (c.1490–c.1560) published two books on Spanish law in 1554 and 1569. The second, Forty Replies, perhaps being the more likely one to which Del Río is referring here. In 1555 Gregorio Lopez (1496–1560) published Siete Partidas, a legal code divided into seven parts. Antoine Favre (1557–1624) practised law in Chambéry and published a collection of decisions made in his own court, Codex Fabrianus Definitionum Forensium. This, however, was not published until 1609 and so Del Río must either have had access to an earlier manuscript version or, (more likely), was simply throwing out his name here as an eminent French jurist. Jean Barbier (floruit fifteenth century) published his guide to canon and civil law (‘Viatorium Utriusque Juris’) in 1488. Johann Fichard (1512–1581) was one of the leading lawyers of his day in the German states. Del Río may be thinking of his Consilia which were published posthumously in 1590.

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lege necari iubetur, qui cum iumento coierit; item qui adulterium commiserit; item qui cum sexus eiusdem homine Sodomiam commiseri; longe detestabilior est spurcities Magorum, quia, cum sint coniugati, adhuc versantur in continuo quasi concubinatu cum daemonibus, et sic non tantum contra sexum, neque tantum extra speciem peccant, sed etiam extra genus; quod detestabilius est, et pessimum omnium carnalium peccatorum. Nec ociosum est quod cum divina lex dixisset: malefios non patieris vivere; subiungat immediate: Qui cum iumento coierit moriatur. Qui immolat Diis occidetur. Nimirum ut haec connexa, et comitari solita sese indicentur. Sexto intervenit in eorum crimine atrocissima blasphemia et maleditum in Deum, quae divina quoque lex morte sancivit vindicanda. Septimo accedunt in uno crimine et alia multa, quibus a legibus humanis iustissime mors decreta supplicium; apostasia a vero Deo; exercere ritus et sacrificia Diaboli foedius, quam ulli olim pagani; transfugium a Deo ad hostem daemonem, cum Deo Sacramentum militiae in baptismo dixerint; rebaptizatio quoque, et chrismatis seu confirmationis conata abrasio; crimen laesae Maiestatis divinae apertissimum ex ipsa Professione et pacto seu foedere solo, ut ex formula et ritu ipso constat, nocturni conventus ad magicos apparatus, quod ipsum capitale. Cum itaque tam multa concurrant in uno crimine, quorum singula morte dignissima; videtur communi iudicio carere; qui communem hanc pestem non censet igne gladioque abolendam; et suspicionem occulti consensus atque conspirationis merito praebet; qui se, Dei et hominum coniuratos hostes defendere atque tueri velle profitetur. Accedat et alia ratio. Criminum morte puniendorum tres sunt causae praecipuae. Prima, ne criminosi vivendo damna inferant proximis et reip.; constat autem maleficos etiamsi non occiderent veneno, tamen plurima damna inferre, ut enim caetera mittam, cum eorum peccatum sit in uno multiplex quaedam colluvies, sentina, et semper repullulascens hydra peccatorum; Deus gravissime semper offenditur, et ad clades toti reip. inferendas provocatur

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has sex with a beast of burden be executed; so, too, someone who commits adultery; so, too, someone who commits sodomy with a person of the same sex.173 [5] The filthiness done by magicians is far more abominable because, even though they may be married, they will still keep on being the concubines, so to speak, of evil spirits and thus sin not only against their sex and beyond their gender, but also beyond their species, something which is more abominable and the worst of all carnal sins. It is not to no purpose that when the divine law says, ‘You will not allow workers of harmful magic to live,’ it adds straight away that the person who has sex with a beast of burden, and the person who sacrifices to ‘the gods’, will be executed, because there can be no doubt that these things are connected and usually accompany each other, and will make themselves known. (6) The most appalling blasphemy and reviling of God takes place during these people’s criminal activity, and divine law has also sanctioned vengeance by means of the death penalty. (7) Many others things are involved in this one crime, for which human laws with perfect justice decree the death penalty: apostasy from the true God; performing the Devil’s rites and making sacrifices in a more disgusting way than any pagans once did; fleeing from God to our enemy, the Evil Spirit, even though during baptism they took an oath to fight on God’s side; baptising people again, too, and trying to rub away the oil [of baptism] or of confirmation. The crime of treason against God’s Majesty is perfectly clear from their profession [of loyalty to Satan] and their pact or covenant alone, as it is from the form of words [they use] and the ritual itself, and the meetings held at night to get hold of magical equipment, which is itself a capital offence. Therefore, since so many things come together in a single crime, each one of which is entirely worthy of death, it seems there is something missing from every trial which does not consider that this general disease should be wiped out with fire and the sword; and this quite rightly furnishes a suspicion that there is a hidden consensus and conspiracy which owns that it wants to defend and protect the sworn enemies of humankind. There is another argument, too. There are three main reasons for punishing crimes with death. The first is so that those who live criminal lives do not cause harm to their neighbours and the state. It is undisputed that, even if workers of harmful magic were not killing people with their poison, they are doing a great deal of harm because—so that I don’t have to mention everything else, since their sin is a kind of multiple filth in one, a kind of bilge-water, a Hydra constantly re-growing [its heads]—God is always being very gravely offended and being very much provoked to bring disaster to the whole state; and this is

173

The references here are to Leviticus 20, 6, 2, 15, 10, and 13.

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maxime, ut his infelicissimis temporibus experimur, quibus huius sectae (quae iam caeteris longius proserpsit) flagitia, bonorum hominum precibus, et pietati praeponderant, plusque illa possunt ad irritandum, quam haec ad Deum placandum. Secunda causa est ut etiamsi aliis non nocerent facto, ne noceant exemplo: ut videmus quotidie lamias multiplicari, et earum sermones atque opera canceris instar serpere; quare tollendae de medio, ut stulto pereunte, sapiens astutior fiat. Tertia, ne si diutius mali tolerentur, maiora aggravatis sceleribus supplicia sibi accersant, et de die in diem fiant deteriores; cumque salutis pars sit, minus affligi; optime illis ad salutem consulit aeternam, qui mature flagitiis eripit. Docet experientia vix ullas extra rogum, vel carceres converti; quomodo convertantur, quae domi moriuntur, nec habent qui ad Deum revocet conscium peccati eorum quenquam? Potest illas Deus ad poenitentiam etiam domi revo|care, sed non videmus hoc fieri; quod singulari Dei contingit clementia, quae poenas tantis sceleribus debias vult breviore et leniore hic supplicio expiari. Cum itaque omnes hae rationes locum habeant in Lamiis, etiamsi nullum occiderint animal; consequens eas adhuc merito morte plecti, et hos iudices clementes potius quam crudeles in eas existere, consequens etiam impios et crudeles in remp. et quasi parricidas patriae esse, qui ad tam evidentem patriae perniciem haec viperarum examina dissimulatione, conniventia, aut aliter, fovent, celant, tuentur, aut debitae poenae subtrahunt. Obiicitur ex Constit. Carolina locus cuius haec sententia est: si alicui damnum maleficio sive veneficio intulerint, morte ignis plectantur; si vero nulli damnum intulerint, poenas patiantur pro delicti quantitate et qualitate. Respondeo: Semper (ut ostensum) huius delicti eam esse qualitatem et quantitatem, ut si foederatae fuerint cum daemone; si in conventibus, ea quae fieri solent, fecerint, morte plectendae sint. Dumtaxat ergo caput hoc definit, vene-

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just what we are experiencing in these most unfortunate times in which the disgraceful actions of this sect, (which has already crept much further forward than any of the others), outweigh the prayers and devotion of good people, and the former can provoke God more than the latter can placate Him. The second reason is so that, even if they did not harm others by what they do, they cannot harm them by their example. Every day, for instance, we see that witches [lamias] are multiplying and their words and deeds are creeping forward in the manner of a crab.174 Consequently, they should be removed from our midst so that ‘when a fool dies, a wise person can become more sagacious.’175 The third reason is so that wicked people, burdened by their crimes, cannot call down greater punishments upon themselves and become worse day by day if they were tolerated for too long, and since part of salvation is that one is tormented less, the person who forcibly removes them in good time from committing those offences is taking good care of his eternal salvation. Experience tells us that scarcely any of them are converted unless they go to the stake or to prison. How can those176 who die at home be converted when they do not have anyone to call them back to God, who is well aware that each of them is a sinner. God can also call those at home to repentance, but we do not see this happening. This is because of God’s remarkable mercy, which wants them to pay the penalties owed to such great crimes with a shorter and lighter torture here on earth. Therefore, since all these reasons are relevant in the case of witches [lamiis], even if they have not killed any living creature, the consequence is that these women are still deservedly punished with death, and it is more merciful than cruel of judges to proceed against them, and so those who favour, conceal, or otherwise protect them, or lessen their due punishment, to the obvious ruin of their country, by making a pretence of examining these vipers, and conniving with them, are also irreligious, cruel towards the state, and are rather like parricides of their own country. An objection, based on this opinion, which is taken from the Carolina Code, is raised, which says that if they have done harm to anyone by malefice or poisoning they should be punished by being burned to death, but if they have not done anyone harm, they should be punished in accordance with the severity and type of their offence. My answer is—as I have already pointed out—that the type and severity of this offence is that if it involved being covenanted with an evil spirit, and if they actually did what they usually do at these meetings 174 175 176

Instar canceris, which may also mean ‘like a malignant tumour’. A version of Proverbs 21.11: ‘when a scoffer is punished, the simple become wiser, and when the wise are instructed, they increase in knowledge.’ The pronouns at this point indicate that Del Río has women in mind.

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narios illos semper igne puniendos; caeteros, si venenarii non sint, aliquando ignis, aliquando alio supplicio puniendos. Patronis ergo Lamiarum, qui hoc capite nituntur, docendum fuit, harum Lamiarum crimen huiusmodi non esse, quod mortem mereatur; quod hactenus illi ostendere nequiverunt, et Binsfeld. Grillan. Sprenger. Alf. a Castro et alii citati, nosque etiam non obscure contrarium demonstravimus. Quid, quaeso absurdius, qui vaccam vel equum occiderit interfici; qui a fide Christiana defecerit, et Deo maledixerit, et Diabolo se addixerit expressa professione, et cum eo faedissime coierit, et ei sacrificaverit, etc. eum morte hoc affici: estne hoc poenas criminibus commensurare? Visum mihi, unde haec omnia luculenter probari queant, inserere huic loco exemplar sententiae latae Avinioni, anno 1582, ut refertur a Sebastiano Michaelis, in Pneumalogia: “Visis processibus coram N.N.N. etc. contra nobis constitutos reos, accusatos, et delatos, quibus tam per vestram, et quorumlibet vestrum relationem, ac propriam confessionem iudicialiter coram nobis factam, atque saepius repetitam, iuramento vestro medio; quam per testium depositiones, eorumque accusationes, et alias legitimas probationes, ex dictis, actis et processu resultantes, nobis legitime constitit, et constat, quod vos, et vestrum quilibet, Deum nostrum omnium Creatorem, et Opificem, Unum et Trinum abnegastis, et immitem Diabolum, hostem antiquum humani generis, coluistis vosque illi perpetuo devovistis; et sacratissimo Baptismati, et his qui in eo fuerant susceptores levantes, et proparentes, vestraeque parti Paradisi, et aeternae haereditatis, quam pro vobis et toto genere humano Domnus noster Iesus Christus sua morte acquisivit, coram praefato cacodaemone, in humana specie existente, abrenunciastis; infundente ipso rugiente diabolo denuo aquam, quam accepistis vestro vero mutato nomine in sacro baptismatis fonte vobis imposito, sicque aliud commenticium nomen vobis imponi fictitio baptismate passi fuistis, et accepistis; atque in pignus fidei daemoni datae vestimentorum vestrorum fragmentum et particulam illi dedistis, et ut a libro vitae vos deleri; et obliterari pater mendacii curaret, signa vestra propria manu, ipso mandante et iubente, in reproborum

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of theirs, they should be punished with death. Therefore, this chapter [of the Code] simply defines that those who are poisoners should always be punished by burning, and that anyone else—provided he or she is not a poisoner—can sometimes be punished by burning and sometimes by another form of punishment. In consequence, those protectors of witches [lamiarum] who rely upon this chapter must have been informed that the crime of these witches is not of a kind that warrants death. [Peter] Binsfeld, [Paolo] Grillando, [Jakob] Sprenger, Alonso de Castro, and others I have cited could not have told them this, and I too have been clear in demonstrating the opposite. What, I ask, is more ridiculous—for someone who has killed a cow or a horse to be executed, [or] for someone who has defected from the Christian faith, cursed God and devoted herself to the Devil by an express profession [of loyalty], had sex with him in the most disgusting fashion, and sacrificed to him, etc. to be put to death [by burning]? It occurred to me that all this can be proved very clearly by inserting at this point a copy of a sentence passed at Avignon in 1582, as recorded by Sébastien Michaëlis in his Pneumology. ‘We have reflected upon the proceedings, held in our presence, against N, N, N, etc.177 You have been accused, delated, and found guilty by your own account and that of every one of your associates, by your own confession made in correct legal form in front of us and repeated more than once on your solemn oath, and also by the charges and depositions of witnesses and other legal proofs arising from your words, your actions, and the legal process. We are legally agreed and decided that you and every one of your associates have denied God, the creator and maker of us all, who is One and Three, that you have worshipped the Devil, the implacable ancient enemy of the human race, and that you have given yourselves up to him in perpetuity: that in the presence of the foresaid evil spirit, who was with you in human form, you renounced your most holy baptism and dismissed those who stood therein as your godparents, your share of Paradise, and your eternal heritage which our Lord Jesus Christ bought for you and the whole human race by His death: that the roaring Devil himself178 poured water on you again, and you accepted it and changed the name you had been given at the holy font of baptism, and thus accepted a different false name in a fictitious baptism: that, as a pledge of the fealty you swore to the evil spirit, you tore off a small piece of your clothing and gave it to him; and so that the father of lies could make sure of deleting and obliterating you from the book of life, at his command and urging, you made your marks with your

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There were eighteen defendants altogether. A reference to 1 Peter 5.8: ‘Your adversary, the Devil, like a roaring lion’, etc.

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damnatorum, mortisque perpetuae libro nigerrimo ad hoc parato apposuistis; et ut ad tantam perfidiam et impietatem vos maiori vinculo devinciret, notam vel stigma cuilibet vestrum, veluti rei suae propriae, inussit; et illius mandatis et iussis iureiurando, super circulo (quod divinitatis | symbolum est) in terram sculpto (quae scabellum pedum Dei est) per vos, et quemlibet vestrum praesito, vos obstrinxistis signo Dominico et cruce conculcato; et illi parendo, adminiculo baculi, quodam nefandissimo unguento ab ipso Diabolo vobis praescripto illiti, cruribus et positi per aera ad locum constitutum, intempesta nocte, hora commoda malefactoribus, statisque diebus, ab ipso tentatore portati et translati fuistis; ibique in communi synagoga plurimorum maleficorum sortilegorum, et haereticorum fascinariorum, cultorumque daemonum, accenso igne tetro, post multas iubilationes, saltationes, comessationes, compotationes, et ludos, in honorem ipsius praesidentis Beelzebub Principis daemoniorum, in formam et speciem foedissimi et nigerrimi hirci immutati, ut Deum, re et verbis adorastis; et ad illum complicatis genibus supplices accessistis, et candelas piceas accensas obtulistis, et illius foetidissimum ac turpissimum anum (proh pudor!) summa cum reverentia ore sacrilego deosculati estis; illumque sub veri Dei nomine invocastis; illiusque auxilium, et pro vindicta in omnes, vobis vel infensos, vel petita denegantes, exercenda efflagitastis; atque ab ipso edocti vindictas, maleficia, fascinationes tum in humanas creaturas, tum etiam in animalia exercuistis, atque homicidia infantium quamplurima commisistis, imprecationes, ablactationes, tabes, et alios gravissimos morbos, ope iam dicti Sathanae, immisistis; infantesque per vos, nunnullis etiam scientibus tantum et annuentibus, arte iam dicta malefica oppressos, confossos, et interfectos fuisse, ac demum in cemiterio sepultos noctu et clam exhumastis, atque in synagogam praedictam, fascinariorum collegium, portastis; denique daemoniorum Principi in solio sedenti obtulistis, detracta et vobis conservata pinguedine,

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own hand in the coal-black book of damned evil-doers and perpetual death,179 which had been made ready for this purpose: and so that he could bind you to this great treachery and wickedness with a surer bond, he burned his mark or brand on each of you, as though you were his property. On his instructions and commands, you swore an oath and pledged yourselves over a perfect circle, (which is a symbol of divinity), drawn by you and your associates in the earth, (which is God’s footstool), and trod underfoot a cross and the image of our Lord. You obeyed him with the help of a staff smeared with an abominable ointment, the composition of which the Devil himself had written down for you. You put this staff between your legs and were carried and transported through the air to the appointed place by the tempter himself on pre-arranged days during the dead of night—an hour appropriate for evil-doers. There, in a general meeting of a very large number of workers of harmful magic,180 casters of lots, heretical casters of the evil eye, and demon-worshippers, a noisome fire was lit and, after a lot of shouting, jumping about, eating, drinking, and games in honour of the presiding officer himself, Beelzebub, prince of evil spirits, who had changed his shape and appearance to that of an utterly loathsome, jet-black goat, you worshipped him in deed and word as a god. You approached him as suppliants on bended knee, offered him lighted candles made from pitch, and (the disgrace of it!) enthusiastically, in a spirit of very great awe, kissed his disgustingly filthy arse with your sacrilegious mouth. You invoked him under the title, ‘True God’, you begged his help in wreaking vengeance on everyone who was either hostile towards you or denied your requests; and after he taught you how, you wreaked your vengeance, worked harmful magic, and cast the evil eye on human beings and animals alike, murdered as many young children as you could. With the help of the said Satan you let loose curses, loss of breastmilk, wasting diseases, and other very serious illnesses; by means of the wicked craft we have just mentioned you smothered small children, stabbed them, and killed them, (and not only did several people know about it, they also consented to it); and after they had been buried in the cemetery for a while, you dug them up secretly at night and brought them to the foresaid synagogue, the society of those who cast the evil eye.181 Finally, after drawing off the fat and keeping it for yourselves, you offered them to the prince of evil spirits as he sat upon

179 180

181

They made their marks, presumably because they could not write. Communi synagoga. The use of ‘Sabbat’ and ‘synagogue’ as terms for witches’ assemblies stems from at least the twelfth century. See J.B. Russell, Witchcraft in the Middle Ages, Ithaca-London: Cornell University Press 1972, pp. 131–132. Collegium fascinariorum. A collegium was an association of individuals united for a common purpose or by common interests and submitting themselves to rules in common.

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capite, manibus, et pedibus abscissis, truncumque decoqui, et elixari, et interdum assari curastis, iubenteque ac mandante praefato Patre vestro comedistis, et damnabiliter devorastis; mala denique malis addendo, vos viri cum succubis, vos mulieres cum incubis fornicati estis, Sodomiam veram et nefandissimum crimen misere cum illis tactu frigidissimo exercuistis, et quod etiam detestabilissimum est, augustissimum Eucharistiae Sacramentum per vos in Ecclesia Sancta Dei aliquando sumptum, iam dicti Serpentis a Paradiso eiecti praecepto, in ore retinuistis; illudque in terram nefarie expuistis, ut cum maiori omnis contumeliae, impietatis, et contemtus specie Deum nostrum virum et Sanctum dehonestaretis, ipsum vero diabolum, eiusque gloriam, honorem, triumphum et regnum promoveritis; atque omni honore, laudibus, dignitate, auctoritate, et adoratione honoraretis; decoraretis, et honestaretis. Quae omnia gravissima, horrendissima ac nefandissima sunt, directe in Omnipotentis Dei omnium Creatoris contumeliam et iniuriam. Quam ob causam nos F. Florus Provincialis Ordinis fratrum Praedicatorum, sacrae Theologiae Doctor ac Sanctae fidei in tota ista Legatione Avinionensi Inquisitor generalis; Dei timorem prae oculis habentes, pro tribunali sedentes, per hanc nostram sententiam diffinitivam, quam, de Theologorum et Iurisperitorum consilio, more maiorum, in his ferimus scriptis, iesu christi Domini nostri, ac B. mariae virginis nominibus pie invocatis dicimus, declaramus, pronuntiamus et deffinitive sententiamus: vos omnes supra nominatos, et vestrum quemlibet fuisse et esse veros Apostatas, idololatras, Sanctissimae fidei desertores. Dei omnipotentis abnegatores et contemptores, Sodomiticos, et nefandissimi criminis reos, adulteros, fornicatores, sortilegos, maleficos, sacrilegos, haereticos, fascinarios, homicidas, infanticidas, daemonumque cultores Sathanicae, diabolicae atque infernalis disciplinae, et damnabilis ac reprobatae fidei assertores, blasphemos, periuros, infames, et omnium malorum, facinorum et delictorum convictos fuisse. Ideo

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his throne. You cut off the head, hands, and feet and took pains to cook the trunk, boiling and sometimes roasting it, and then, with the encouragement and on the instructions of your foresaid ‘father’, you ate it and devoured it in damnable fashion. Then, adding wickedness to wickedness, you fornicated— the men with succubi, the women with incubi—and in your wretched fashion committed actual sodomy with them, an unspeakable crime, even though their touch was extremely cold. Sometimes, too, (something which is also absolutely abominable), you kept in your mouth the most revered sacrament you sometimes took in God’s holy church, and were wicked enough to spit it out on to the ground so that you could dishonour our true, holy God with a greater show of abuse, irreligiousness, and contempt, and promote the Devil himself and his glory, honour, triumph, and kingdom, and show him respect, honour, and reverence with every kind of honour, praise, and mark of dignity, authority, and adoration. All these are very serious, abominable, and unspeakable, and are directly contumacious and injurious towards Almighty God, the creator of everything. For this reason we, Father Florus of the Order of Preachers, Doctor of Sacred Theology and Inquisitor General of the Holy Faith throughout the jurisdiction of Avignon, having the fear of God before our eyes and as the person who has presided over this trial, declare by this definitive sentence which, on the advice of theologians and experts in the law, and in accordance with ancient custom, we have had committed to writing: and, having called devoutly on the names of our Lord Jesus Christ and the Blessed Virgin Mary, we say, declare, pronounce, and definitively pass sentence that each and every one of you named above have been and are genuine apostates and idolaters, that you have forsaken the most holy Faith, and that you deny and despise Almighty God: that you are sodomites182 and guilty of the most unspeakable crime: that you are adulterers, fornicators, casters of lots, and workers of harmful magic: that you commit sacrilege: that you are heretics, casters of the evil eye, murderers, infanticides, and satanic worshippers of evil spirits: that you have been found guilty of a devilish and hellish course of life, and of being advocates of a damnable and reprobate faith: that you are blasphemers and perjured individuals without reputation: and that you have been found guilty of every kind of

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It is never quite clear how great a range of sexual offences was intended to be covered by the word ‘sodomy’, but it almost certainly went beyond the more restricted sense of buggery which it has now. Del Río and his sources call it nefandissimum, ‘unspeakable’, which may suggest buggery, but ‘sodomy’ could be and was applied to bestiality as well, and as sex between humans and evil spirits was, in fact, sex between different species, the latter could be as applicable a meaning as the former.

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vos omnes, | vestrumque quemlibet, tanquam Satanae membra, hac nostra sententia, Curiae saeculari remittimus, realiter et in effectu condignis et legitimis poenis eorum peculiari iudicio plectendos.” Habes hic epitomen scelerum quae fascinarii isti soliti committere, quam alibi, accuratius comprehensam; habes et exemplum damnationis Ecclesiasticae, quo illa pacto Curiae saeculari, reos puniendos tradat, nec opus alia solemnitate, si laici sint rei. Maius opus quando tradendi sunt Clerici, quos constat ante traditionem omni clericali privilegio; praemissa regradatione, seu, ut vocant, degradatione spoliandos. Quaeritur autem, quid si moniales sint, vel monachi laici; nullo in clericorum gradu constituti; an et hi exauctorandi, et quomodo? De his ultimis non memini me quidquam legere. Sed arbitror sufficere nudationem seu spoliationem habitus monastici, ut viris caputium, foeminis velum, cum scapulari, et habitu supremo auferatur, vestisque laica illis iniiciatur, et ordine, cui se addixerant, eiecti, spoliatique omni religiosorum privilegio, sortisque Laicae effectis declarentur, sicque Curiae seculari tradantur. Praxim huius casus nondum vidi, sed suspicor hanc esse, vel esse debere. Sed quia in fascinariorum causis multorum criminum quaedam quasi colluvies et sentina reperitur, quorum non eadem qualitas est, quaeri solet propter quae liceat vel expediat hanc Clericorum vel Monachorum traditionem facere? Si sola haeresis proprie dicta, hoc est error in fide pertinax reperitur, sequenda decreta canonum de haereticis, quae proposui supra: hac eadem sectione littera tt. Quid iudici in caeteris criminibus quae haeresim comitantur ut plurimum, et quae subiungam, facere expediat; id quia dependet a circumstantiis personarum, loci, temporis etc. prudentiae et facti est, nec regulis ullis potest definiri. Hoc tantum in genere, honoris divini, et timoris, et publicae utilitatis summam semper habendam, esse curam; et ita demum, si haec permittant, iuris rigorem remitti posse. Si quaeras quid iudici liceat? Respondeo: Etsi olim degradatio non nisi propter tria crimina iure Canonico expressa permitteretur; hodie tamen praxim contrariam invaluisse passim, ut propter alia quoque crimina his maiora id facere liceat; quod sane et a plerisque interpretibus receptum, et aequitati

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wickedness, crime, and offence. Therefore, by this our sentence we remit each and every one of you, as limbs of Satan, to the secular court, to be punished actually and effectually by its wholly deserved and legal penalties in accordance with its particular judgement.’ Here you have a summary of the crimes these casters of the evil eye [ fascinarii] are in the habit of committing, and which have been quite accurately recounted elsewhere. You also have an example of the Church’s condemnation whereby she hands over those who have been found guilty to be punished by the secular court. There is no need for any other formality, if it is lay people who have been found guilty. It is more complicated when clerics have to be handed over. It is customary that, before they are handed over, they be deprived of all clerical privilege and that they be re-graded or, as it is called, ‘de-graded’. But the question arises, what if they are nuns or lay-brothers and have no clerical rank? Are they to be de-graded, and how? I do not remember having read anything about this group of people, but I think it is enough to strip or deprive them of their monastic clothing—the cowl in the case of the men, the veil in the case of the women—along with their scapular and outer habit, and to throw lay attire over them, and once they have been ejected from the order to which they belong and stripped of all the privileges of a religious, they should be declared to be lay people and thus handed over to a secular court. I have not yet seen this done in practice, but I suspect this is how it is done or should be done. But because one finds a kind of filth and bilge, so to speak, in the reasons for many of the crimes committed by casters of the evil eye, the nature of which is not the same, it is usually asked, what reason can one give for allowing or proceeding to hand over clerics or monks this way? If the only reason one finds is heresy properly called—that is, stubborn error in faith—the decrees of canon law in relation to heretics should be followed, as I proposed earlier in this section, letter tt. What a judge should do in relation to all the other crimes which very often accompany heresy, and which I shall talk about in a moment, is a matter of common sense and fact, and cannot be confined by any rules, because it depends on the circumstances of the people involved, the place, the time, etc. One’s greatest concern must always be God’s honour, the fear of God, and the public good, and that only if these permit can the rigour of the law be tempered. If you ask what the judge is permitted to do, my answer is that, even if degradation was permitted in earlier times only in the case of three crimes described by canon law, these days the contrary practice prevails far and wide with the result that because of other, greater crimes than these, it is permissible to do

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valde consonum, past Bald. Ancaran. et Abbat. frustra reclamantibus Antonin. Anan. et Butrio, in praxim deductum videmus. Quare licet hodie propter unum crimen valde enorme, vel plura gravia (sic voco quae non tam enormia) etiam non exspectata incorrigibilitate clericum tradere saeculari brachio puniendum, ut docent, post alios, Guilh. Benedictus in cap. Raynutius., Bernard. Dias de Lugo Episcopus Calagurritanus Prac. Criminal. canon c. 90, et Felicianus Episcop. Schalensis libro De depositione et degradat. cap. 14, a quibus adferuntur exempla multa rerum sic iudicatarum, in Italia, Hispania, Francia, Belgio; dissentiunt tamen in ea dumtaxat, quod incidente casu Felicianus censet, prius consulendum Pontificem Maximum, fateor id tutius. Sed alii hoc necessarium non putant, nec puto in praxi observari. Quod vera videamus iure Canonico requiri incorrigibilitatem, cap. cum non ab homine. de iudic.; hoc rectissime censent, cum Ancar. Abba. | Felino et aliis, citati dd. recipiendum in criminibus levioribus, et reip. parum noxiis; non vero in enorminibus et reip. periculossisimis (vide Diazium. supra cap. 33 et 90, Felician. cap. 12 et 14), quorum sententiam verissimam puto in criminibus huiusmodi diu continuatis: arg. cap. quam sit. de exciss. Praelator. Crimina autem huiusmodi valde enormia, et hac severitate digna infascinariorum facinoribus, praeter ipsam haeresim, mihi videntur saltem tria occurrere. Primo est Apostasia a Deo et professione Christiana, mera et perfecta,

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this. Most lawyers after Baldo [degli Ubaldi], [Pietro] Ancarano,183 and Nicolo de’ Tudeschi [= Abbas] have accepted this, and it is entirely consonant with justice, and in spite of fruitless objections from St Antoninus [of Florence], [Giovanni d’] Anania, and [Antonio de] Butrio,184 we see that it has been brought into practice. Consequently, these days it is permissible to hand over a cleric to the secular arm for punishment because of a single crime of great enormity, or because of several serious ones, (which is what I call those which are not so dreadful), even if it is not expected he is beyond correction as, according to others, Guillaume Benoît tells us in his [Review of ] the canon ‘Raynutius’, [Juan] Bernardo Díaz de Luco, Bishop of Calahorra in chapter 20 of his Criminal Practice in Canon Law, and Feliciano, Bishop of Scala in chapter 14 of his book on deposition and degrading.185 These men produce many examples of this kind of judicial decision in Italy, Spain, France, and the Spanish Netherlands, and they disagree only in that when this unfortunate event happens, Feliciano thinks the Supreme Pontiff should be consulted first. I say this is rather a good idea, but the others do not think it is necessary, and I do not think it is observed in practice. But we can see from the canon law, ‘since not by a human being’, that this requires that [the offender] be incapable of correction. The scholars I have cited, along with [Pietro d’] Ancarno, Nicolò de’ Tudeschi, and Felino [Maria Sandeo], are perfectly correct in thinking that it should be accepted in the case of less serious crimes and those which pose little harm to the state, but not in the case of those which are dreadful and extremely dangerous to the state. (See Díaz [de Luco] above, chapters 33 and 90, and Feliciano, chapters 12 and 14.) I think their opinion is absolutely accurate when it comes to crimes of this kind which have gone on for a long time. (See argument of canon ‘quam sit’ from ‘The Transgressions of Prelates’.) In my opinion, however, with the exception of actual heresy, there are at least three really dreadful crimes of this kind which are worthy of this severity towards offences committed by casters of the evil eye. The first is apostasy, pure and simple, from God and the Christian faith and desertion to the Evil Spirit, 183 184 185

Pietro d’Ancarano, (c.1333–1416), was a jurist particularly known for his commentary on the Decretals of Gregory ix. His Advice (‘Consilia’) was published in 1474. Antonio de Butrio, (1338–1408), also wrote numerous commentaries on the Decretals of Gregory ix, and his Advice, too, was published post mortem in 1472 and again in 1575. Guillaume Benoît, (1455–1516), was a canon lawyer who taught at the University of Cahors and served as a member of the Parlements of Bordeaux and Toulouse. His Repetitio in Caput Raynutius de Testamentis was published in 1526. Juan Bernardo Díaz de Luco, (1495– 1556), published his book in 1543, and Feliciano Ninguarda (1524–1595), a Dominican who held several bishoprics during his distinguished career—the reference here is to his being Bishop of Scala—published his Handbook for Visitors in 1589.

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et transfugium ad daemonem illique praestitum homagium, sive accedat idolatria (quae per se sufficit), sive non accedat; quia hoc crimen, secundum se, gravius est haeresi proprie dicta, et punitur non tantum poenis omnibus haereticorum, sed eo acrius, quod qui haeretico locus poenitentiae permittitur, is Apostatae iure civili diserte denegatur. Secundo loco est talis Sodomia nefandissima, per concubitum cum succubis et incubis daemonibus; propter Sodomiam vero tradendum brachio saeculari clericum, criminis huius aliquoties commissorem, statuit Pius v Pontifex Maximus in Bulla, incip. Horrendum illud scelus, de qua consule Navarr. cap. 27, Man. n. 246, et superioribus annis hoc in praxim Duaci deduxit. Reverendiss. Episcopus Attrebatensis. Tertio loco homicidium, quod in nostro casu multis ex capitibus est enorme et qualificatum. Primo quando occidunt proprias proles, vel parentes, aut coniuges (ut apud Remig. libro 2, cap. 1), et horum similitudine, quando monachi vel monachae necant suos collegas vel consorores. Secundo, quando nondum baptizatos, et animam perdunt cum corpore. Tertio, quando ad necem accedunt decoctiones illae, aut antropophagiae. Quarto, si veneno necant. Quinto, quando necant proditorie ex pacto mediante ipso daemone; haec duo ultima indigent probatione, caetera clarissima sunt. Quartum et quintum itaque probo, quia deterius est hominem veneno, quam gladio occidere: ideo Romani venena etiam adversus hostem detestabantur, ut Corn. Tacitus et L. Florus docuere. Deinde conatus proditorius gravitatem homicidii semper aggravat; estque maior ac dolosior proditio, quoties cavendi aut prohibendi minor occasio vel potestas est. Daemones autem sunt insidiatores invisibiles, in omnem nocendi occasionem intenti, quorum nec insidias cavere, nec vim (si Deus illis permittat) atque ferociam, prudentia aut vires humanae ferre valent. Denique per tales et maxime diuturnos, atque acerbissimos cruciatus excarnificatos necant, et ut plurimum (quo, quid gravius?) de mentis simul recto deiestos statu, in deliria, miserandumque furorem praecipitant, cumque sani-

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and paying him homage, whether that resembles idolatry—which is enough in itself [to warrant such punishment]—or whether it does not, because this crime, in accordance with itself, is more serious than heresy properly called, and is punished not only with every punishment meted out to heretics, but with greater violence, because the opportunity to repent which a heretic is allowed, is expressly denied an apostate by civil law. The second is the unspeakable crime of ‘sodomy’ [committed] by lying with evil spirits who are succubi and incubi. The Supreme Pontiff, Pius v, decreed in his Bull beginning ‘That dreadful crime’ that a cleric who committed ‘sodomy’ more than once should be handed over to the secular arm. (On this, see Martin de Azpilcueta [= Navarre], chapter 27, number 246 in his Handbook; and not many years ago the Most Reverend Bishop of Arras introduced this into what was done in Douai.)186 The third is murder which, in the case we are considering under many headings, is extremely serious and subject to qualification: (i) when they kill their own children, or parents, or spouses, (as in Rémy Book 2, chapter 2), and—in a case similar to these—when monks or nuns kill their own brothers or sisters in religion; (ii) when they kill those who have not yet been baptised, and destroy the soul along with the body; (iii) when the cooking and cannibalism I mentioned earlier are the reason for the killing; (iv) if they kill with poison; (v) when they kill treacherously with the help of the Evil Spirit himself as the result of the pact [they have with him]. These last two need to be proved—the others are perfectly clear—and so I prove the fourth and fifth on the grounds that it is worse to kill a human being with poison than with a sword, which is why the Romans detested the use of poison, even against an enemy, as Cornelius Tacitus and Lucius Florus have told us. Secondly, a treacherous attempt always makes the seriousness of a murder worse, and every time there is even a little chance or opportunity to issue a warning or prevent [the murder], the greater and more cunning is the treachery. But evil spirits are invisible when they lie in ambush, waiting for every opportunity to do harm, and neither human foresight nor human power has the ability to be on guard against their ambush or, (if God allows the evil spirits to do this), to withstand their violence and ferocity. Thirdly, they slaughter with the kind of tortures which last a very long time, are very violent, and tear [their victims] to pieces, and for the most part—and what is more serious than this?—cast them down from their right mind and hurl them headlong into madness and pitiable frenzy, while at the same time

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Francois Richardot (1597–1574) and Mathieu Moullart (1536–1600), Both bishops of Arras, had connections with Douai. It is not clear which of the two Del Río means.

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tate corporis, animi quoque tollunt incolumitatem. Quae cuncta Philo Iudaeus, qua solet gravitate et copia verborum rationumque perpendit, et idcirco iustum Moysis Zelum validius commendavit, quod maleficis nec diei quidem unius inducias a nece concedendas statuerit; adeo ut, si carnifex desit, per ipsummet Principem Iudicem populi, eos de medio tolli voluerit, qui tali supplicio manus suas non contaminaturus, sed Deo Sanctificaturus, ut alter Philnees, videatur. Addit vocem a Legislatore exodi, cap. xxii, ubi lex illa perscripta, positam | capi, de omnibus, qui vetitis artibus alicui necem moliuntur; et eos ad duo reducit capita, qui dicuntur οἱ μάγοι καὶ φαρμακευταί, et postea explicat quos duplici nomine complecti voluerit, nempe qui vel potionibus, vel verborum conceptis formulis abutuntur, φίλτροις καὶ ἐπῳδαῖς τισιν, quae proiisdem sumi saepe solere satis indicat Hesychii lexicum, ubi habes: ἐπαοιδοί, φαρμακοὶ, γόητες, sed de hoc alias plura dicta nobis fuere. dd. communiter admittunt veneni mali nomine, etiam magicos susurros, et incantationes, sive formulas quaslibet conceptis verbis ex pacto, cum daemone inito operantes, comprehendi; quia par damnum ex verbis talibus et venenis; iuxta illud Tragici de Medaea, qui postquam genus omne lethalium graminum, et Serpentum commemorasset ab ea usurpatum, subdit: Addit venenis verba non istis minus. Metuenda. Sane ratione pacti et daemonis sic vocati, damna inferentis. Nonne Iustinian. Imp. lege Cornelia de sicariis perinde illos teneri sanxit: qui susurris, ut qui venenis, occidere? Quid quaeso hic susurri, aliud quam verba illa tam metu-

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taking away their physical health and soundness of mind. All this Philo the Jew considered carefully with his usual gravitas and plentiful supply of words and arguments, and this is why he rather strongly commended Moses’s righteous zeal when he decreed that they should not be granted the stay of even a single day after the murder—to the extent that if no public executioner is available, [the murderers] should be removed from the midst of the people by the chief judge, who will not be regarded as sullying his hands with this kind of punishment, but will be treated as one dedicated to God, like a second Phineas. He adds that a word is used by the law-giver of Exodus, chapter 22, where the prescribed law is understood as referring to all those who endeavour to murder someone in forbidden ways, and reduces them to two headings, οἱ μάγοί καὶ φαρμακευταί [magicians and poisoners].187 Later on he explains that he means that the word includes these two meanings referring, of course, to those who either misuse medicinal drinks or the formal meanings of the words φίλτροις καὶ ἐπῳδαῖς τισὶν [drinks and certain kinds of chants],188 and Hesychius’s lexicon, where you have ἐπαοιδοὶ, φαρμακοὶ, and γόητης [chanters, pharmaceutical magicians, and workers of harmful magic], clearly indicates it is used with both these meanings. However, I have said more about this elsewhere. Scholars generally accept that magical whispering and incantations, or any formulae with set forms of words which work because of a pact made with an evil spirit, are included in the designation ‘evil poison’ because, according to the author of the tragedy about Medea, equal damage is caused by such words and such poisonous substances. After mentioning every kind of deadly herb and snake, he says, ‘She adds words to her poisons, and these should be feared No less than the poisons,’ [Seneca, Medea 737–738], undoubtedly because of a pact and an evil spirit, who has been summoned this way and is causing the harm. Didn’t the Emperor Justinian use the Lex Cornelia on Assassins to sanction the arrest of those who murdered by whispers in the same way as [to sanction the arrest of] those who murdered by poisons? What else, I ask, is being whispered at this point other than those words

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A φαρμακευτής was someone who made up, administered, and dealt in drugs, that is, herbal or mineral remedies for illness, or herbal or mineral substances, often manufactured to the accompaniment of spoken or chanted formulae and (possibly) magical gestures. Hence the secondary meanings of φαρμακευτής, (a) poisoner and (b) pharmaceutical magician. See Philo, The Particular Laws (‘De Specialibus Legibus’) 3.93, 94, 99, and 101.

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enda? Plato quoque occidi voluit lege sua, non solum qui venenis datis nocuissent, sed et quicumque deligationibus, aut illecebris, aut quibusdam incantationibus ad laedendum paratus esse videretur, et haec omnia se veneficiorum nomine comprehendere affirmavit lib. De legib. xi fere extremo: “ἐὰν δὲ καταδέσεσιν ἢ ἐπαγωγαῖς ἤ τισιν ἐπῳδαῖς ἢ τῶν τοιούτων φαρμακειῶν ὡντινωνοῦν δόξῃ ὅμοιος εἶναι βλάπτοντι.” Incantationum itaque et susurrorum nomine, omne malorum verborum ex pacto efficacium, quod malefici usurparint, genus comprehendi; qui negaret, neminem legi, nec audivi. Unde nihil dubitem huc referre, formulas illas devovendi, seu diras imprecationes, quibus maxime variis haec hominum venena Deum offendunt, ut erat illud quo, quae alicui nocere cupiebat, et se daemoni per pactum olim manciparat N. Lovanii semper utebatur: “Per illud ius et imperium, quod in me tibi permisi (daemonem alloquebatur) postulo ut quantum polles potesque tali vel tali (nomen exprimebat) noceas.” Ubi notandum imprimis hac forma contineri et exprimi primo complacentiam sive ratihabitionem primi pacti, cuius haec quaedam est renovatio, et nova quodammodo apostasia. Deinde peti simpliciter, et indefinite, ut daemon quantum poterit noceat; quare et illud peti, ut si queat occidere per diros cruciatus, id faciat. Ideo si constaret, ad Tartareas has preces, daemonem alicui mortem intulisse; debere puto hanc mortem devoventi huic, ut quae iussit, imputari. Si de nullius nece constet, sed tantum de morbis et afflictionibus illatis, officium iudicis erit, quacumque meliore via poterit, iuridice investigare, num mortis etiam causam alicui praebuerit, hoc est an aliquis ex iis quibus Diras imprecata est, morte violenta, daemonis eius opera, sit sublatus. Si vero praeterea in eadem familia, ubi degit (verbi gratia, in eodem monasterio superior, vel confrater) aliquis non sine suspicione maleficae noxae, et maxime illius eiusdem, quae grassetur eodem tempore adhuc in alios domesticos, interierit; caecum putem, qui locum quaestioni idoneae hic

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which should be feared? Plato, too, wanted his law to execute not only those who had harmed others by giving them poisons, but also anyone who seemed to be prepared to injure others by means of bindings, or allurements, or particular incantations, and near the end of Book 11 of his Laws he maintained that all these are included under the term ‘poisonous magic’: ‘ἐὰν δὲ καταδέσεσιν ἢ ἐπαγωγαῖς ἤ τισιν ἐπῳδαῖς ἢ τῶν τοιούτων φαρμακειῶν ᾣτινιοῦν δόξῃ ὅμοιος εἶναι βλάπτοντι’ [if a person looks like someone who causes harm by bindings, or enticing spells, or any incantations, or any poisonous substances of this kind at all], [Laws 11.933e].189 Consequently, I can have no doubt at all that this includes those cursing formulae or dreadful imprecations and that, with their extraordinary variety, these people’s poisons offend God. An example is the one which was always employed by a woman in Leuven who wanted to harm someone and had at one time enslaved herself to an evil spirit by means of a pact. ‘Through the law which binds you and the command I have allowed you to have over me,’ (she would address her evil spirit), ‘I demand that you do whatever can be done to harm such or such a person,’ (and here she would say the person’s name.) Here it should be noted especially, first of all, that this form of words contains and expresses complaisance with or approval of the initial pact, and that this is a renewal of it and, to a certain extent, a fresh apostasy; secondly that it asks the evil spirit, in simple and undefined terms, to do as much harm as he can, and therefore that it is asking him to kill someone by dreadful tortures if he can. So, if the request was effected by these hellish prayers and the evil spirit did cause someone to die, I think this death ought to be attributed to the person who was ordering the death to happen, because she had urged him to do it. If the agreement is that no one will die, but that he or she will suffer illness and afflictions, it will be the judge’s duty to investigate by whatever way will be the more effective whether she was the cause of anyone’s death, that is, whether one of the people against whom she had uttered dire threats, had been taken off by a violent death as the result of an action by her evil spirit. But, in addition to this, suppose there is someone in the same household—a superior or fellowreligious in a monastery, for example—who dies, and it is suspected that this harm was brought about by magic, and in particular by that same woman who happened to be railing at other members of the household at the same time. I should think that anyone who does not see there is a reason for investigation in

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For a list of such bindings (ligationes), see further Del Río, Investigations Book 3, part 4, section 4, question 8, and Agrippa, The Hidden Philosophy Book 1, chapter 40.

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superesse non videat; cum indicium hoc illa confessione, et infamia personae clara confirmatum, plane propinquum sit censendum. Ad poenam tali infligendam, si de mor|te illata, ne per tormenta quidem, quicquam fateatur, etsi lenior sententia sit quorumdam, leviori quam mortis supplicio afficiendam; tamen quando in multos tam improbo et propinquo conatu reus grassatus fuit, etiamsi mors nulla foret subsecuta, ordinariam mortis poenam tali conatui infligendam, iustius videntur complures Doctores summae auctoritatis censuisse. Quam sententiam equidem opinor, in iis qui non sunt usi ad nocendum veneno aliquo aut instrumento naturali, sed immediata ope opera diaboli, longe apertiorem et aequiorem habendam. Nam qui hoc pacto, vi talis conventionis initae homines perdunt; plane similes sunt malitia, homicidis, quos vulgo vocant assassinos, quorum homicidium pro valde enormi et qualificato in praxi haberi, norunt qui criminalia subsellia vel obiter adierunt. Hos commune Doctorum suffragium iubet omnino actu degradari, etiamsi conatum improbum mors subsecuta non fuerit, si modo per ipsos non steterit, quominus interficeretur. Longius etiam hac in re plurimi I.C. progrediuntur, adeo ut censeant, clericum qui assassino mandavit occidere quempiam, a iudice saeculari in hoc conatu deprehenso assassino, posse et ipsum mandatorem ab eodem iudici cape, et sine ulla degradatione supplicio affici; quod ultimum licet non diffitear videri communius receptum, securius tamen arbitror iudici saeculari, prius degradationem hoc casu opperiri, et urgere Ecclesiasticum forum, quatenus iuste et honeste poterit, ad hoc faciendum. Caeterum similitudinem assassinatus maximam in hoc maleficorum conatu inesse, quia docui lib. 2, quaest. 4, litt. B: non arbitror mihi nunc probandum, quid interest precio conducam sicarium, qui meum inimicum ex insidiis interficiat; an ad hoc vi pacti conventi a daemone, id ut faciat, obtineam? Hic pro pecunia est, anima ei pacta, et promissa. Verum dicat aliquis quid igitur respondes canoni, c. cum non ab homine, de iud. Breviter Respondeo: Sequi me cum multis graviss. I.C. quos Felician. et Diazius sequuntur, Ancaran. et Abbatem, qui censuere canonem illum intel-

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this case must be blind, since one must judge that this piece of evidence, when confirmed by the confession and evident notoriety of the individual concerned, is clearly likely to be true. In relation to inflicting punishment on such a person: if she makes no confession relating to having caused the death, even under torture, and even though some people have the rather lenient idea that she should suffer a less serious punishment than that of death, nevertheless when the accused has railed against a large number of people in such a violent (and likely) attempt [against their lives], even if no death has actually followed, several of the most authoritative scholars seem to have been of the opinion that it is more in accordance with justice that the usual death penalty be inflicted in the case of such an attempt. I certainly think that this opinion should be considered as more clearly practicable by far, and more just by far, in the case of those who have not made use of any poison or natural substance to do harm but have had direct help from the Devil. Those who destroy human beings this way by means of the power of the kind of covenant into which they have entered are clearly similar in wickedness to the murderers who are commonly known as ‘assassins’, and those who have attended or passed through the criminal courts know that in practice these people’s killing is considered to be a serious and aggravated crime. The common opinion of scholars says that these people are completely de-graded by their action, even if death has not followed as a result of their wicked attempt, provided it did not depend on their decision that the person would not be killed. Most legal experts go along with this to a fair extent in as much as they think that a cleric who has commissioned an assassin to kill someone can be arrested as the commissioning agent by the same secular judge who has arrested the assassin because of this attempt [on someone’s life] and can be punished without losing his grade at all. I do not deny that although this last seems to have been fairly generally accepted, I think it is better for the secular judge in this case to wait for [the individual] to be de-graded first and, in as far as he can do so justly and honourably, urge an ecclesiastical court to do this. However, bearing in mind what I said in Book 2, question 4, at letter B, there is a very great similarity between assassination and this attempt by workers of harmful magic, and I do not think I have to prove it. Why it is in my interest to hire a killer to ambush and kill my enemy? Or do I get an evil spirit to do it because of the pact I have with him? This case is done at a price because the soul is pledged and promised to the evil spirit. Someone, however, may say, so how, briefly, do you answer the canon ‘When not by a human being’ in the canon dealing with judges? My answer is that I follow [Pietro d’] Ancarano and Nicolò de’ Tudeschi [= Abbas], along with many very distinguished legal experts whom Feliciano [Ninguarda] and [Bernardo]

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ligendum de unico tantum, et non qualificato homicidio; non autem de unico homicidio qualificato (ut sunt ea quae nos initio proposuimus homicidia maleficorum), neque de pluribus non qualificatis. Concludo igitur quolibet istorum trium casuum, multoque magis duobus vel tribus concurrentibus, vel uno perfecte patrato, et alterius propinquo conatu accedente, Magos, sortiarios, maleficos, incantatores, sive quocunque alio appelles nomine, posse a iudice Ecclesiastico, quamvis monachi, quamvis Sacerdotes sint actu praemissa degradatione brachio saeculari puniendos tradi. Si obiicias quosdam docere, ex quibusdam canonum locis, ad hanc traditionem Sortilegii crimen non sufficeret, sed dumtaxat ad verbalem depositionem. Occurritur, id intelligendum casu quo Sortilegii crimen intra priprios suos terminos consistit, hoc est non progreditur ultra illicitam divinationem non coniunctam cum expresso pacto Apostatico. Nam de tali simplici divinatione, ut sunt pleraeque astrologorum et similium, expresse canones illi loquuntur, nempe c. unicum 26, q. 1, cap. si quis Espiscopus 26 q. 5. Et ideo nostrae sententiae nihil obstant. Caeterum quando incantationes etiam medicamentis ad malorum remedium adhibitae; tunc ex Divo Augustino expresse iubet alius | canon clericos degradari cap. admoneant in fin., 26, q. 7. Cuius loci duae sunt explicationes, una est degradari poni pro curiae saeculari tradi, ut per praecedens etiam quod subsequitur significetur; idcirco enim fere semper fit actualis degradatio, quae hoc nomen proprie meretur; alia est degradationem tantum poni pro depositione verbali, quae proprie vocatur depositio, improprie vero degradatio diceretur. Prior sententia verborum proprietati inhaeret, posterior aequitati. Sed suspicor in re non dissentire Abbatem et Butrium. Nec enim Butrius opinor affirmaret incantatores, qui nec apostatae, nec Sodomitae, nec

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Díaz [de Luco] follow. They thought that that canon should be interpreted in connection with only one kind of non-aggravated killing, not in connection with one kind which is aggravated—as are the killings done by workers of harmful magic I mentioned at the start—and not in connection with more than one aggravated crime of killing. I conclude, therefore, that when any one of these three cases is present, and much more so when two or three of them are present at the same time, or when one attempt has been successfully carried out and a similar attempt has been made on a second person, magicians [magos], casters of lots [sortiarios], workers of harmful magic [maleficos], and enchanters [incantatores], (whatever other name you care to give them), can be handed over by an ecclesiastical judge to the secular arm for punishment, even though they may be monks or priests, once they have actually been subject to de-gradation. If you object that a number of people, relying on certain passages in canon law, say that the crime of foretelling the future [sortilegii] is not sufficient to warrant their being handed over, but only to their being deposed orally, this is to be understood of a case in which the crime of foretelling the future stays within its own particular boundaries, that is, it does not go beyond illegal divination and is not conjoined with an overt pact of apostasy. Now, the canons ‘a single’ 26, question 1, and ‘if any Bishop’ 26, question 5, certainly talk about straightforward divination of this kind, (and most divinations by astrologers and people such as that are of this sort), and therefore they do not stand in the way of my opinion at all. However, when incantations have also accompanied medicines for the cure of ills, according to St Augustine, another canon, (‘let them warn’, at the end of 26, question 7), orders that clerics be de-graded. There are two explanations of this passage. One is that ‘de-graded’ means being handed over to a secular court, because that it is given its meaning by the precedent it is following, since actual degradation, properly and deservedly so called, almost always follows in consequence. The other is that the de-grading simply refers to the verbal deposition. The proper word for this is ‘deposition’ and it would not be correct to say that this is ‘de-gradation’. The former explanation sticks to the correct meaning of the word, the latter to the justice of the sentence.190 I suspect that Nicolò de’ Tudeschi and [Antonio de] Butrio do not, in fact, disagree, because Butrio, I think, would maintain that enchanters who are

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In effect degradation and deposition are two stages of the same punishment which is deprivation in perpetuity of all benefices, status, and power conferred by ordination. Verbal degradation refers to the reading of the sentence, actual degradation to the ceremony of stripping the individual of his ecclesiastical garments in a solemn conclave presided over by a bishop. Handing over to a secular court frequently followed.

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aliis noxii suis artibus esse sunt conati; actu degradandos, ut curiae saeculari traderentur, sed contenderet canonem illum de his non loqui, verum de iis ad quorum crimen incantationis, grave damnum aliis illatum, Sodomia, aut apostasia, accederet. Contra Abbas non opinor, negaret incantatores illos de quibus Butrius sic acciperet Canonem, et de quibus concl. nostra fuit: curiae saeculari tradi posse; sed contenderet canonem illum de his non egisse, sed de aliis de quibus nos non loquimur, quae Abbatis explicatio etsi minus propria, magis tamen consentanea videtur illi contextui. Sane nobiscum sensisse Abbatem et cum Butrio, quoad enormes illos quos dixi sortilegos, patet, quia Abb. solitus est distinguere inter crimina gravia, graviora, et gravissima; de gravibus tantum vult agi in cap. cum non ab homine. de iudic., de gravioribus in cap. tuae, de poen. de gravissimis in cap. novimus. de verb. signif. et cap. penult. de haeret. Et inter gravissima collocat quaecumque sunt qualificata, et valde perniciosa reip. et quia pro huiusmodi criminibus puniendis condignam paenam non habent canonum sanctiones, ut illa condigne undicentur, et reip. consulatur, ac satisfiat, vult merito introductum, ut iudex Ecclesiasticus talium reos degradet, et ilico post curiae saeculari (ut fieri solet) tradat, iuxt. d. cap. novimus et d. cap. penult., si vero delicta minus atrocia et minus perniciosa reip. sint tamen ex gravissimis; tunc vult iudicem debere degradare, et degradatum perpetuis carceribus mancipare, quae suprema iuris Canonici poena est, et in mortis locum successit. Quae sane Abbatis sententia merito Diazio et Feliciano supra citatis placuit. Et haec puto posse et debere iudicem sequi. Porro si spes affulgeret emendationis, et magna atque clara poenitentiae incidia exstarent (cave tale putes, quod reus secum petat clementer agi; melius indicium poenitentiae foret, si diceret nulla sibi condigna supplicia posse irrogari, et malle hic Deo tam atrociter offenso, gravi supplicio conari satisfacere), nec rei

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neither apostates nor sodomites, and have not attempted to do harm to others by means of their practices should actually be de-graded so that they can be handed over to a secular court. He would argue, however, that the canon I mentioned is not talking about these people, but about those to whose crime the serious harm brought to others by their incantation would be like that done by sodomy or apostasy. On the other hand, I do not think Tudeschi would deny that the enchanters to whom Butrio thinks the canon was referring and whom I included in my conclusion, can be handed over to a secular court. He would argue that the canon did not deal with these, but with others I am not talking about, and the explanation Tudeschi offers, even if less consistent, still seems to be more in accord with the context [of the canon]. Certainly, it is clear that Tudeschi and Butrio thought along the same lines as myself, as far as those outrageous ‘magical diviners’ [sortilegos], as I called them, are concerned, because Tudeschi was accustomed to distinguish between crimes, calling them ‘serious’, ‘more serious’, and ‘very serious’. He thinks that only the serious kind is being dealt with in the canon ‘when not by a human being’ in the canon concerning judges; the more serious kind in the canon ‘on penalties’ ‘tuae’ concerning judges; and the very serious in the canon ‘Furthermore We know about the meaning of words’, and the last chapter of ‘a heretic’. Among the very serious kind he places any crimes which are aggravated and very dangerous to the state, and because canon law sanctions do not have a wholly merited penalty to punish this kind of criminal, so that their crimes may be punished as they deserve and the state be taken into account and satisfied, he quite rightly wants a provision to be introduced for an ecclesiastical judge to de-grade those found guilty of such crimes and hand them over to a secular court immediately afterwards, (as is the usual practice), in accordance with the canon ‘We know’ and the last chapter of ‘a heretic’. But if their offences are less dreadful and less dangerous to the state, they still count as very serious, and under those circumstances, he thinks the judge should de-grade [the guilty individual] and, after he has been de-graded, sentence him to perpetual imprisonment, which is the most severe punishment canon law inflicts and takes the place of the death penalty. Quite rightly, [Bernardo] Díaz [de Luco] and Feliciano [Ninguarda] whom I cited earlier approved this opinion of Tudeschi and I think a judge can and ought to follow it. Furthermore, if hope of amendment were to make an appearance and great, clear indications of repentance were to show themselves—be careful of what you think when the accused asks you to deal leniently with him. It would be a better indication of his repentance if he were to say that no one can impose on him the kind of punishments he deserves and that, since he has offended God so dreadfully in this instance, he prefers to make an attempt to give Him satis-

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sunt relapsi, nec schandalum timetur, nec magnum imminet reip. periculum ex hac clementia; his concurrentibus semper, etiam in tribus illis quae dixi criminibus, aequius, lenius et honestius Episcopo putarim (nisi particulari causa in contrarium movente), si reum huiusmodi post actualem degradationem, sive monachus, sive alias clericus sit (maxime si in ordine sacro constitutus) ipsemet ad perpetuos Eclesiasticae curiae carceres damnet. Sic factum Ebroici, Magister Guilh. Edelino; sic factum Cameraci Ioannae Potiere; sic factum Cordubae Magdalenae Cruciae, in quorum tamen causa Sodomia, et maleficium, cum Apostasia concurrebant; sed in omnibus poenitentiae signa erant clarissima, et scandali atque noxae publicae periculum abesse iudicabatur. | Quoad ignis poenam ea quoque merito recepta, et a maleficis aruspicibus (lib. 3, c. De malef.) generali Europae consuetudine, ad omnes magos, maleficos, sortiarios, lamias extensa; quia sunt apostatae, sunt haeretici, sunt peccantes contra naturam, quorum omnium haec legitima poena est. Et haec poena coepit iam in Hispania a regno Ramiri Regis, circa annum 844. Nam ille Magica sacra cantionesque ignis supplicio coercuit (Ioan. Mariana De reb. Hispan., lib. 7, cap. 13); in Italia prius adhuc a temporibus D. Gregorii, quando Romae Basilius quidam senator magus qui ut poenam effugeret, se Monachum esse velle finxerat flammis absumptus fuit (vide D. Greg., lib. 1 Dial. cap. 4); hic Basilius una cum Praetextato, qui ambo senatores et viri illustres, fuere Magiae convicti, ut videas hoc crimen semper non muliercularum tantum et vilium, sed virorum etiam nobilium fuisse; quicquid Wierus et similes ogganniant. Impoenitentes itaque vivi comburendi, poenitentes prius strangulandi: vide Covarr. lib. 2, var. res., cap. 10, n. 9 et Clarum d. § fin. q. 99, n. 7. In Apostasia quoque speciale, quod in foro externo illi poenitentiae locus non est: lib. 3, cap. de Apost. Ad hanc autem poenam ignis ex communi consuetudine sufficere fidei abnegationem, et foedus cum daemone, docent Bart. consil. quod incipit mulier striga

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faction by means of a severe punishment—and if those found guilty have not relapsed, and there is no fear of scandal and no great danger threatens the state from this clemency, and these [conditions] are found together at all times, even in the three crimes I talked about, I still think it fairer, more lenient, and more decent, unless there is a specific reason moving him to the contrary, for the Bishop himself to sentence [the offenders] to perpetual imprisonment under the supervision of an ecclesiastical court. This was done in Évreux in the case of Master Guillaume Edelin, in Cambrai in the case of Jeanne Potière, and in Cordoba in the case of Magdalena of the Cross, and yet in their case sodomy, harmful magic, and apostasy occurred together. But in all of them the signs of repentance were very clear, and it was judged there was no danger of scandal and harm to the public. As for the penalty of being burned, this too has quite rightly been accepted and, by general custom in Europe, has been extended from evil-doing diviners [aruspicibus], (see Book 3, chapter on workers of harmful magic), to all magicians, workers of harmful magic, casters of lots, and witches [lamias] because they are apostates, because they are heretics, and because they are sinners against Nature. This penalty [of burning] began in Spain as early as the reign of King Ramiro in about the year 844, because he suppressed magical ceremonies and incantations by burning [their practitioners]. (See Juan de Mariana, The Affairs of Spain Book 7, chapter 13.)191 In Italy, even before the time of St Gregory, Basilius, a senator in Rome and a magician, who had pretended he wanted to be a monk in order to escape punishment was burned, (see St Gregory, Dialogues Book 1, chapter 4.) This Basilius and Praetextus, both senators and distinguished men, were found guilty of practising magic, so you can see that this crime was not always one only of silly lower-class women, but also of well-born men, whatever Weyer and people like him may yelp. Those, therefore, who are impenitent should be burned alive and those who are penitent should be garrotted first. (See [Diego de] Covarrubias, Various Resolutions Book 2, chapter 10, number 9, and [Giulio] Claro, op.cit. supra, the last paragraph of question 99, number 7.) In the case of apostasy, too, there are particular circumstances, because there is no place in an external court [of law] for repentance, (see Book 3, chapter on apostasy.) But, by common custom, denial of the Faith and making a treaty with an evil spirit are enough to warrant this penalty of being burned, as legal opinion by Bartolomeo [da Sassoferrato], beginning ‘a woman

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Ramiro i, (c.790–850), was King of Asturias and recorded as a ruler of some severity against all kinds of magical worker.

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de qua quaeritur in fin., et habetur tomo cons. crimin. Zileti. 1 et Molletus Ad constit. Saxo. p. 4, sect. 2. n. 4. Unum restat dignum quaestione: V. Iudici liceat hanc legis poenam consuetudine receptam minuere pro lubito suo? Decidenda haec quaestio est ex traditis a D. Thom. et eius interp. 2. 2., q. 67, art. 4, si adsit accusator, eo iuste invito, non posse ullum iudicem ne supremum quidem poenam debitam laxare; si vero iniuste invitus esset, ut si valde vita rei foret reip. necessaria, tunc inferior iudex id non posset, sed bene supremus posset, quod tamen rarissime et non nisi maxima ex causa faciendum. Inferior vero iudex nec permittente accusatore posset; superior poterit eo remittente, si tamen id fiat cum bono reipub., quod quia raro accidit, ideo etiam raro poena relaxanda. Si iudex ex officio processit, minor non poterit eam relaxare; supremus non potest, nisi utilitas reipub. id exigat, una et praecipua causa est leniendae poenae, poenitentia voluntaria. Sane prudentes iudices semper censuerunt spontaneam et promptam confessionem et indicia poenitentiae, levioris poenae infligendae, etiam in hoc crimine, causam idoneam esse. Stabuleti Ioannes de Vaux igne cremandus, capite plexus fuit; aliis locis, qui vivi erant exurendi, strangulantur ad palum. Hoc movit iudices illos Allobroges in casu quem his verbis narrat Cancellarius Parisiensis contigisse anno Domini 1424: “Recitatus est Lugduni Galliae coram clero processus cuiusdam mulieris delatae et detentae Burgi in Breyssia, quae est notabilis villa ducis Sabaudiae, circa quam est domus Sellionis ordinis Carthusiensis; haec mulier sub pallio devotionis et revelationum fingebat mirabilia. Asserebat enim se esse unam

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who is being interrogated as a witch’ tells us. It is also found in Volume 1 of legal opinions in criminal trials [published] by Ziletti, and in [Daniel] Moller’s book on the constitutions of Saxony Part 4, section 2, number 4.192 One point worthy of investigation remains. Is a judge allowed to lessen the legal punishment accepted by custom if he wishes to do so? The question should be decided by what St Thomas [Aquinas] and his interpreters have transmitted to us. (See [Summa] 2.2, question 67, article 4.) If the pursuer is present, and even if he has good reason to be reluctant, no judge can even relax the supreme punishment which is required [by law]. But if he were reluctant for no good reason, such as if the life of the accused were necessary to the state, under those circumstances a judge in an inferior court could not do it, but a judge in a superior court could. This, however, should be done very rarely and only for a very pressing reason. But the inferior judge could not do this, even with the pursuer’s permission. The superior judge will be able to do it if the accused is remitted to his court, but only if he does so with the good of the state in mind, and because this situation rarely happens, it means that the punishment, too, will rarely be relaxed. If the judge goes ahead unofficially, the lesser judge will not be able to relax [the punishment], and a judge in the highest court cannot do so unless advantage to the state requires it. One overriding reason for mitigating the punishment is voluntary repentance. Undoubtedly, experienced judges have always thought that a spontaneous, public confession and evidence of repentance are a suitable reason for inflicting a lighter punishment, even in the case of this crime. In Stavelot, Jean Del Vaulx was sentenced to death by burning. Elsewhere those who were sentenced to be burned were garrotted at the stake. This influenced the Savoyard judges in a case which the Chancellor of Paris tells us happened in 1424.193 ‘In Lyon in France, in the presence of the clergy, there took place the trial of a woman who had been accused and detained in Bourg-en-Bresse, which is a notable town belonging to the Duke of Savoy. The Seillon priory of the Carthusian Order is in the neighbourhood. This woman used to fake wonders under the cloak of devotion and [making] revelations, because she used to claim that

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The legal opinion of Sassoferrato is a reference to a collected edition of his legal advice, questions and treatises which appeared in 1585 and was reprinted several times thereafter in the 1580s and 1590s. It has been suggested, however, that his Consilia is a fake. See Marina Montesano, Classical Culture and Witchcraft in Mediaeval and Renaissance Italy, Houndmills, Basingstoke: Palgrave Macmillan 2018, pp. 166–167, footnote 83. Giovanni Battista Ziletti (floruit sixteenth century) was a juristconsult. This reference is to his Consilia Selectora in Criminalibus Causis, published in Venice in 1577. Jean Gerson, to whom Del Río is referring, actually dates the following incident to 1423.

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de quinque foeminabus missis a Deo compassive, pro redimendis innumeris animabus de inferno. Et iam sua collusione subdola deceperat in regione illa quam plurimas simplices mulierculas. Sciebat videndo frontem, peccata, quae fecerat unusquisque; hoc enim secundum Augustinum etiam Diaboli malitia scire potest, et suis revelare, non autem ea quae futura sunt absolute, sive ea quae in secreto cordis latent, et nullo | exteriore motu aut signo sese produnt. Habebat etiam supradicta mulier duos carbones in pede, qui eam afflixerant quotiescumque aliqua anima ad infernum descendisset; quotidie tres animas ab inferno liberavit; unam vel duas sine difficultate, aliam seu alias cum poena maiore, ut dicebat. Mentis quoque excessus seu exstaticos saepe habebat, in quibus mirabilia per revelationem didicerat; eratque mirae abstinentiae, singularissimae etiam vitae; plura vero alia de ea scribenda forent. Nuper autem cum Spiritus almus Ecclesiae suae rector verus (ut creditur) hunc Spiritum falsum detegere vellet; haec mulier capta, et poenis ut torqueretur est addicta, quae omnem veritatem confessa est, qualiter omnia praedicta cupiditatis occasione finxisset, ut se nutriret hoc modo, et paupertati suae subveniret; aut fortassis pro huiusmodi diabolo se miseram in famulam dedicavit. Inventa est insuper morbum caducum habere, ac eundem sub extaticis excessibus, quos finxerat, palliare; de qua cum varia opinio esset, an tanquam haeretica puniretur; iudicatum est a doctis ad poenitentiam eam admittendam, nec esse haereticam, quia illa quae fecerat dimisit, nec obstinata permansit.” Ita Gerson lib. De examinat. doctrinar., litt. O in fine. Haeretica non erat, quia in mente errorem nullum foverat; saga tamen et malefica, quia peccata ex pacto cum daemone inito divinabat; carbones etiam illi videntur illusione daemonis apparuisse, quanquam et humana vafrities quid simile carbonibus potuerit exhibere. Ordinarie expedit reipub. sontes puniri; ideo ordinarie peccaret etiam Princeps hanc poenam mortis relaxans; et si quod malum reipub. inde proveniret ad iustitiam pertinens, iudices, etiam Princeps, tum tenerentur ad damnorum restitutionem. Valen. et Aragon. supra

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she was one of five females sent by God in His compassion to redeem countless souls from Hell. She had already beguiled as many simple-minded women in the region as she could.194 By looking at each person’s forehead, she would know what sins he or she had committed because, according to St Augustine, the Devil’s wickedness is able to know this and reveal it to his followers. But things which are going to happen, or things which lie hidden in the secret place of the heart, do not betray themselves completely, or by any external movement or sign. The woman I am talking about also used to have two carbuncles on her foot, and these caused her distress every time a soul went down to Hell. Every day she freed three souls from Hell—one or two, (she used to say), without difficulty, another or others with a greater amount of pain. She also had frequent losses of self-possession or trances during which she learned wonderful things through a revelation. She led a life of extraordinary and most remarkable abstinence, and one would be able to write many more things about her. But recently the kindly [Holy] Spirit, the real governor of His Church, wanted to expose this false spirit. The woman was arrested and delivered up to be tortured painfully. She confessed the whole truth—how, prompted by greed, she had faked all her predictions with a view to feeding herself and relieving her poverty this way, (or perhaps this is why she dedicated herself to the Devil as his wretched servant). In addition to this she was found to have the falling sickness and to be cloaking it under the guise of the ecstatic trances she had faked. Opinion about whether to punish her as a heretic varied. It was decided by men experienced in this sort of thing that she should be allowed to repent, and that she was not a heretic, because she stopped doing what she had been doing and did not remain stubborn.’ (See [Jean] Gerson’s book, An Examination of Doctrines, at the end of letter O.) She was not a heretic because she had not mentally cherished any error [of faith], but she was a wise-woman [saga] and a worker of harmful magic [malefica] because she used to prophesy sinful things as a result of the pact she had made with an evil spirit. Her carbuncles, too, seem to have appeared as the result of an illusion by the evil spirit, although her human cunning will have been able to produce something similar to carbuncles. In the ordinary way, it is advantageous to the state that guilty people be punished, and therefore in the ordinary way even a prince would commit a sin if he relaxed the death penalty; and if some mischief were to befall the state because of it, the judges—even the prince—would be held responsible for making good the damage. (Valencia and

194

A marginal note here says that ‘region’ is a correction of a word generally mis-read as ‘religion’.

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et est commun. sententa, Silv. et Caietan. in verb. Iudicum peccata; Navar. in Manual. c. 23. et alior. Quam aegre autem Deus ferat maleficos magos vere idololatras, iesu et maria hostes, defendi aut debitae mortis poenae eripi; in Anatolii cuiusdam et sociorum Magorum causa, multiplici miraculo Bizantii fuit ostensum, narrante rem multis Evagrio. lib. 5 Histor. Eccles., cap. 19. Qua de re in monitis 3 et 4 plura sum dicturus. Hic restat ut repraesentem quod saepe pollicitus sum, Analyticum commentarium in cap. Episc. caus. 26, q. 5, quem extorsit non necessitas, sed adversariorum impudens pervicacia. Tribus §§ rem complectar. §. 1. de cap. Episcopi auctore et auctoritate. Quidam volunt esse concilii Aquileiens. cap. 1: ita Bodinus et Danaeus haeretici. Miror unde hanc inscriptionem cap. Epistopi acceperint. Nam nulli libri, quos multos vidi, vel Ivonis, vel Burchardi, vel Gratiani, eam exhibent; fors an lectionem illam commenti, ne viderentur nimis impudentes in solutione quam adducunt? Volunt enim nullam concilii illius auctoritatem fuisse, utpote quod conciliabulum non iusta (inquiunt) Synodus habeatur. Quaero ex Bodino de qua Aquileiensi Syn. loquatur? An de priore? Haec fuit anno 381, tempore Damasi Papae et Gratiani Imperatoris, in qua Palladius et Secundinus Ariani condemnari, cuius nulli alii canones extant, nisi actio unica contra Arianos, qui Synodum hanc Gratiano extorserant. Provinciale concilium fuit, sed semper pro iusto et legitimo habitum, nec aliud fere in quo plures pro numero sanctitate conspicui, ut Valerian., Euseb., Bononiens., Ambr., Philastr. alii, quos eat Bodinus et contendat ferreo ore in | conciliabulum convenisse. Probet etiam ex hoc concilio canonem desumptum. Posterius aliud celebratum Aquileiae, anno 698, sub Sergio Papa in quo Ecclesia Aquileiens., quae relapsa in schisma occasione Quintae Synodi fuerat, iterum reconciliata fuit Romanae Ecclesiae; huius concilii meminere Paul. Diaconus, lib. 5, Hist., cap. 18, Baron. Annali Octavo, sed

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Aragon above); and it is also the general opinion of [Francesco] Silvestri, [Cardinal] Cajetan against judges’ verbal transgressions, [Martín de] Azpilcueta, Handbook, chapter 23, and other people. But how difficult it is for God to put up with the defence of magicians who work harmful magic and are actually idolaters, enemies of Jesus and Mary, or their being snatched away from the death-penalty they should suffer, has been shown by an ambiguous miracle in Byzantium, in the case of someone from Anatolia and the magicians who were his associates. (Evagrius tells the story at length in Book 5, chapter 19 of his history of the Church.) I shall say more about this in Admonitions 3 and 4. At this point I still have to put before you something I have frequently promised, an analytical commentary on the canon Episcopi, (chapter 26, question 5), which has been wrested from me not by necessity, but by the shameless obstinacy of my opponents. I shall cover the subject in three paragraphs. Paragraph 1 deals with the author and authority of the canon Episcopi.195 Certain people date it to the first chapter of the Council of Aquileia—the heretics [Jean] Bodin and [Lambert] Daneau, for example. I am surprised at their reason for accepting the title Episcopi because no books—and I have looked at many by Ivo, Burchard, and Gratian—use it. Perhaps they invented that reading so as not to appear too impudent in regard to the explanation they were offering, because they claim that the ‘Council’ was not authoritative, in as much as it is not considered, (they say), to be a lawful synod. My question in relation to what Bodin says is, which synod of Aquileia is he talking about? This one or an earlier one? The earlier one took place in the year 381 at the time of Pope Damasus and the Emperor Gratian, and during it Palladius and Secundinus were condemned as Arians. None of its other canons has survived except one enacted against the Arians, who had forced Gratian to call this synod. It was a provincial council, but has always been considered lawful and legitimate, and I have noticed that there is almost no other Council in which more saintly men took place, such as Valerian, [Bishop of Aquilaeia], Eusebius of Bologna, Ambrose [of Milan], Philaster, [Bishop of Brescia], and others. Let Bodin come and argue against that in his brazen way! Let him also prove that the canon came from this Council. Later on, there was another, well-known Council in Aquileia, held in 698 under Pope Sergius, during which the church in Aquileia, which had relapsed into schism at the time of the fifth synod, was reconciled once again with the Roman Church. Paul the Deacon mentions this Council in Book 5, chapter 18 of his history [of Rome], as does [Cesare] Baronio

195

Gratian, Decretum, causa 26, question 5, canon 12.

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canones nullos eius proferunt, nec quod sciam extant. Unde ergo probat Bodinus esse huius concilii Canonem? Cui etiam iniurius est, id vocans Conciliabulum, cum Romani Pontificis auctoritate fuerit congregatum. Dent Bodinus et Danaeus aliud concilium Aquileiense, quod conciliabulum fuit, ex quo canon ille sit desumptus. Iaquerius et alii citant ex concilio Acquirensi. Sed mendosi codices eos in fraudem traxere. Plerique scribunt ex conc. Anquirensi. Non diffiteor fieri posse ut ruditas illius saeculi causam praebuerit Gratiano sic scribendi, ut censet Ant. Augustinus, lib. 1, De emendat. Gratiani Dialo. 5, in fine, ubi docet sic solitum aberrare in nominandis Conciliis; sed ille potius saeculi, quam Gratiani error dicendus, quia hanc corruptionem deprehendas etiam in Parisiense Burchardo, sed in Lovaniens. Ivone est Ancyrensi: inde nata differentia quod veteres soliti C. et Q. confundere, ut in nomine Quirinii et Cirinii; dissentiunt autem tam Ivonis, et Burchardi, quam Gratiani veteres codices, in Anquirensi, Anchyrensi, Anchyrani., constat concilii verum nomen esse Ancyranum, ab urbe quae Graecis ἄγκυρα, et sic alibi vocat Gratianus. cap. Diaconi. 8. etc. De Syracusanae. 13, dist. 28, cap. 32, presbyteros. dist. 50, cap. 6 si qui episcopi. d. 92, cap. 40 si qua de rebus. 12, q. 2, cap. qui divinationes. 26, q. 5, cap. desponsatas 27, q. 2. Ancyra urbs Galatiae antiqua et nobilis, ubi celebris ille lapis thesaurus antiquariorum, et apud Claudianum Ancyranique triumphi; Straboni et Ptolomaeo ἄγκυρα; Laonico corrupte οὔνκυρα; hodie Bellonio et Nigro Anguori. statim occiso Maximino celebratum in ea concilium fuit, persecutione cessante, anno ferme 314,

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in the eighth volume of his Annals, but neither man quotes any of its canons and, as far as I know, they have not survived. Consequently, how does Bodin prove that the canon comes from that Council? He is also wrong to call it an unlawful Council, since it was assembled by the authority of the Roman Pontiff. So let Bodin and Daneau produce another Council of Aquileia which was an unlawful Council, from which the canon we are talking about could have come. [Nicolas] Jacquier and others quote from the Council of Acquira, but inaccurate codices have led them into error. Many of them write ‘from the Council of Anquira’. I do not deny that this is possible, since the ignorance of that century caused Gratian to write the word like that, as Antonio Agustin thinks in his Emending Gratian Book 1, dialogue 5 at the end where he tells us that this kind of mistake in naming Councils was quite common.196 But the error should be called that of the century rather than of Gratian, because you can catch this corrupt reading in Burchard’s Parisian manuscript. In the Leuven manuscript of Ivo, however, the reading is ‘of Ancyra’. The difference comes from the ancients’ habit of mixing up ‘c’ and ‘qu’, as in the name ‘Quirinius’ and ‘Cirinius’. But the old codices of Ivo as well as those of Gratian and Burchard disagree, writing ‘in Anquira’, ‘in Anchyra’, and in ‘Ancyra’. There is general agreement that the name of the Council is ‘of Ancyra’, from the city whose name in Greek is ἄγκυρα [Ankyra = ‘anchor’], and this is what Gratian calls it elsewhere. (See chapter 8, ‘a deacon’s task’, etc; chapter 13, ‘concerning [the Bishop of the city of] Syracuse’, distinction 28; chapter 32, ‘priests’, distinction 50; chapter 6, ‘if those who are bishops’, distinction 92; chapter 40, ‘if by chance concerning matters’, 12, question 2; chapter 26, ‘those who practise divinations’, question 5; chapter 27, ‘betrothed women’, question 2.) Ancyra was a famous ancient city in Galatia, where there was a celebrated stone, treasured by antiquarians, and [there is a reference to the city] in Claudian’s phrase, ‘Ancyra’s triumph’, [Against Eutropius 2.416]. To Strabo and Ptolemy it was ἄγκυρα [Ancyra]; in the vernacular it is corrupted to οὔνκυρα [Ounkara], and these days it appears in [Pierre] Belon and Negri as ‘Anguori’.197 A Council was held there immediately after the death of Maximinus when the persecution [of Christians] ceased in about

196 197

Antonio Agustin y Albanell, (1516–1586), was a Spanish historian and Archbishop of Tarragona. His Two Books of Dialogues on Emending Gratian was published in 1587. Pierre Belon, (1517–1564), was a celebrated traveller and naturalist. His remarks on Ancyra appear as chapter 115 in his Observations de Plusieurs Singularitez et Choses Mémorables which first appeared in 1553. Domenico Maria Negri (floruit sixteenth century) published Eleven Books of Geographical Commentaries in 1557.

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in quo multa de lapsis salubriter constituta fuerunt, nec pauca contra magicas fraudes sancita, et contra contagiosam superstitionem ex commercio cum gentilibus in populum fidelium proserpentem, ut patet ex can. 23, seu (ut Balsamon) 24, qui relatus a Gratiano in d. cap. qui divinationes. Sed ex his canonibus Balsamon. 25, alii 24 tantum ponunt; nec inter eos noster habetur. Unde igitur Gratianus eum descripsit? Inciderat in collectionem quandam sexdecim partialium librorum, in qua lib. 6, cap. 6 et 7; adiiciebantur duo canones concil. Ancyrano, quos hodie additos videmus primo concilor. tomo editionis Surianae, item optimae Romanae; priorem de homicidis servi alieni, posteriorem de sortilegis et maleficis per Episcopos parochia expellendis; quem totum Gratianus descripsit, errorum quae in codice collectionis erant nulla ratione habita. An Burchardus ex illo eodem codice partialium librorum descripserit, an vero collector ex Burchardo, non possum definire, quia collectionem illam non vidi. Quid ergo, dicemusne hunc canonem esse concilii Ancyrani? Communis haec opinio est, non recentiorum modo, Turrecrematae in d. cap. Episc., Tostati in Exo. et in Matth., Iaquerii in Flagello, Alphonsi a Castro lib. 1 De iusta haer. punit., cap. 16, Victoriae relect. de Magia, Carranzae in Summa concilior., Simancae in Cathol. instit., Spinaei q. de strigib., Silvestri | De strigimag. admir., Binsfeldii De Confess. malef. et Ant. Augustini in d. Dial., verum etiam antiquorum, ut Collectoris illius partialium sexdecim librorum, Collectoris omnium conciliorum, Burchardi, Ivonis, Gratiani. Obiiciunt qui contra sentiunt, quod iste canon nec in Graeca concil. editione sola, nec in ea quam Balsamon interpretatus fuit; nec in Latinis versionibus Cre-

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314,198 during which much concerning those who had lapsed was decided in a beneficial fashion, as well as not a few sanctions against magical deceits, and the creeping contagion of superstition among the population of the faithful, arising from trade with the pagans. This is clear from canon 23, or according to [Theodore] Balsamon who was quoted by Gratian in the chapter ‘those who practise divinations’, 24. Some people, however, simply substitute 24 for 25 when referring to these canons of Balsamon. I am not inclined to agree with them. So, what was Gratian’s source for his version? He had come across it by chance in a compilation of sixteen incomplete books in which two canons were added to the Council of Ancyra. These days we see them added to the first of the Councils in the Soriano edition, and likewise the very good Roman edition. The first deals with the murderers of a slave belonging to someone else, the second with casters of lots and workers of harmful magic who were to be driven out of a parish by the [local] bishops. Gratian copied in their entirety the mistakes which had been included, for no good reason, in the manuscript of the compilation. Whether Burchard copied them from the very same codex of incomplete books, or whether a compiler copied them from Burchard I cannot be certain, because I have not seen that compilation. Why, then, am I going to say that [Episcopi] is a canon from the Council of Ancyra? This is the general opinion, not only of more recent authors—[Juan de] Torquemada on the said canon Episcopi; [Alonso de] Tostado in his commentaries on Exodus and Matthew; [Nicolas] Jacquier in his Scourge; Alfonso de Castro in Book 1 of his Just Punishment of Heretics, chapter 16; [Francisco de] Vitoria, Lecture on Magic; [Bartolomé] Carranza in his Summary of the Councils;199 [Diego de] Simancas in his Catholic Teaching; [Bartolomeo della] Spina, Inquiry into Witches; Silvestro [da Prierio], The Astonishing Things done by Hag-Magicians; [Peter] Binsfeld, Confessions of Workers of Harmful Magic; and Antonio Agustín in his Dialogues—but also of the compiler of the sixteen incomplete books, the compiler of all the councils, and Burchard, Ivo, and Gratian. Those who have the opposite idea object that the canon [Episcopi] is not included in the only Greek record of the Council, nor in the one which Balsamon translated, nor in the Latin versions, (either the Collectio Cresconiana,

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In reference to the date, a marginal note says, ‘some people say 308.’ Maximinus ii died in 313 and the synod was held in 314. Bartolomé Carranza, (1503–1576), was a Dominican and Archbishop of Toledo. In 1558 unfortunately worded expressions in his commentary on the catechism fell foul of the Spanish Inquisition, and after a long, drawn-out process he was partially cleared, but died still under a cloud. His Summary of All the Councils was first published in Venice in 1546.

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sconiana, vel Dionysiana (quam secutus Ioan. Wendelstinus), nec in Tigurina, nec in alia ulla concil. Ancyrano inseratur. Sed de multis quae ex conciliorum canonibus exciderunt, hoc unum esse potuit; potuere etiam Burchardus et alii veteres Latini plenius volumen nacti fuisse, quam Balsamon aut alii Graeci, aut qui vertere ex Graecis, quorum libri conciliorum Latinis semper fuere corruptiores et magis mutilati. Nihilominus alii adhuc censent ex nullo concilio desumptum, sed ex aliquo Patrum. Nam Beetzhius in Praeceptorio ascripsit B. Gregorio, evidenti memoriae lapsu. Alii volunt desumptum ex D. Augustini lib. De spiritu et anima. Sed liber hic non est Augustini, ut mox docebo; et auctor ille mutile admodum hoc canone fuit usus. Doctissimus denique Annal. Eccles. scriptor censuit a Damaso id statutum, tom. 4, Annal. anno 382, sic scribens: “In actis autem Damasi Papae, in Ecclesia recitari solitis, de quibus inferius erit mentio, habentur aliqua ab eodem Pontifice decreta in Romano concilio; hocne an priore incertum est, etc.” Deinde: “post quaedam concilii decreta, ait: nec non etiam excommunicandos esse omnes, maleficiis, auguriis, sortilegiis, omnibusque aliis superstitionibus vacantes, qua sententia praesertim foeminas illas plectandas esse, quae illusae a daemone se putat noctu super animalia ferri, atque una cum Herodiade circumvagari, etc.” Atque hoc censet confirmari, quia censet eadem ferme a S. Augustino descripta haberi de spiritu et anima, cap. 28, nec non in appendice Ancyrani concil. et apud Gratianum suo eodem titulo collocata. 26, q. 1, cap. 12. Et constet ex Severo Sulpitio Vitae S. Martin., cap. 25; in occidente et oriente maleficorum artes plurimum invaluisse, quod ex Ammiani lib. ult. hist. uberius probetur; adeo ut in ipsos sacros Dei ministros praestigiae quoque

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the Collectio Dionysiana, which is the one Johann [Cochlaeus] from Wendelstein followed, nor in the Collectio Tigurina), nor in any other record of the Council of Ancyra.200 But this could have been one of the many they had excised from the canons of the Councils. Burchard and the other old Latin authors could have got hold of a more complete volume than the one Balsamon and the other Greeks had, or those who translated the records from Greek. The books of the Councils in Greek have always been more corrupt and more mutilated than those in Latin. Nonetheless, other people still think that [the canon Episcopi] did not come from any Council, but from one of the Fathers [of the Church], because in his Instruction [Jan de] Beets, through an evident lapse of memory, attributed it to St Gregory. Others say it came from St Augustine’s book, The Spirit and the Soul. But this book is not by St Augustine, as I shall point out in a moment, and the author made use of a canon which was badly mutilated. Finally, the very learned author [i.e. Cesare Baronio] of the Annals of the Church thought it was decreed by Damasus. In Annals Volume 4, under the year 382, he writes as follows. ‘But among the Acts of Pope Damasus which are usually read aloud in church, about which mention will be made later, are included a number of this Pope’s decrees from the Council of Rome. (It is uncertain whether this refers to the first one),’ etc. Then, following some of the Council’s decrees, he says, ‘Not only should all those who spend their time in acts of harmful magic, reading signs, casting lots, and every other kind of superstitious practice be excommunicated, a sentence whereby those women in particular should be punished who are tricked by an evil spirit into thinking they are being transported at night by living creatures and are wandering about with Herodias,’ etc. He thinks this is confirmed because he thinks almost the same thing was written by St Augustine in chapter 28 of his Spirit and Soul, and also in the appendix to the Council of Ancyra, and was gathered under the same heading in Gratian 26, question 1, chapter 12; and, based on chapter 25 of Severus Sulpicius’s Life of St Martin, it is generally agreed that the practices of workers of harmful magic were especially prevalent in the west and the east, (as Ammianus proves at inordinate length in the last Book of his Histories,) to the extent that the juggling deceptiveness of magical incantations crept into the [speech of] God’s holy

200

Cresconius/Crisconius was a seventh-century canon lawyer who made a compilation of the canons of the Church Councils thus far. Dionysius Exiguus had made one earlier. Johannes ‘Cochlaeus’ Wendelstein, (1479–1552), was a prolific author of books on many different subjects.

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magicarum excantationum irrepserint, ut de Gerontio Diacono D. Ambrosii narrat Sozomenus, lib. 8, hist. cap. 6. His tamen argumentis nondum inducor ut Burchardo, Ivoni, Gratiano, ne dicam tot aliis doctissimis viris contradicam, vel a communi me sententia patiar avelli. Maleficorum multitudo non minor fuit Constantii, et Iuliani temporibus ut non paucioribus exemplis possem probare. Sed quid opus in re clara? Quod autem a Gratiano sub eodem titulo collocetur, ut ab appendice quoque illa; hoc perspicue non pro Romano, sed per Ancyrano concil. facit. Quod eadem apud Augustinum totidem fere verbis legantur; auget suspicionem Damasi non esse hoc decretum de mulierculis, sed recentius, nam liber ille non est Augustini, sed alterius nec tam dicti, nec tam antiqui. Nec Augustinus subticuisset Damasi esse piae recordationis sanctionem. Nec quidquam obstat, ne credamus illa Damasi acta, in iis saltem partibus, quae in Ecclesia non recitantur (qualis est ista) esse mendosa, nec didici unquam illa Damasi acta in Ecclesia olim integra recitari solita, sed sicut hodie videmus in Breviariis inseri, seu recitari non acta integra, sed Actorum partem. Pro Damaso robo|ris aliquid habet hoc unum argumentum quod horum actorum exstant Romae complura exemplaria m. s. quorum quatuor Illustriss. Baronius vidisse se testatur, d. t. anno 427. Accedit illud Antonii Augustini Dialo. 14, de hoc cap. epist. his verbis: “Damaso in concil. Rom. ascribi vidi in lib. quodam Michaelis Tomasii ex veteri libro, in quo vita eiusdan Pontificis conscripta.” Veram haec opinio etiam patitur difficultates, quas nostra. Imprimis enim in canonibus conciliorum Romanorum, quae duo sub Damaso habita, non reperitur; non in priore anni 373, quo damnati sectatores Apollinaris. Nam illius canones interciderunt, et eorum summam volunt Anathematismis Theo-

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ministers themselves, as Sozomen tells us in relation to Gerontius, St Ambrose’s deacon, (History Book 8, chapter 6.)201 I am not yet persuaded by this evidence, however, nor by Burchard, Ivo, or Gratian, to say I am going to contradict so many other very learned men, nor am I going to allow myself to be torn away from the commonly accepted opinion. In the time of Constantius and Julian the number of workers of harmful magic was not too small for me to be able to prove it with an equally small number of examples. But what is the need when the situation is clear? The kind of thing Gratian collects under the same heading—and one also gathers this from the appendix I mentioned—he quite clearly does not get from the Council of Rome, but from the Council of Ancyra; and because one can read the same thing in almost the same number of words in St Augustine, it increases one’s suspicion that this is not Damasus’s decree on the subject of foolish women, but one which is more recent, since the book I mentioned is not by St Augustine, but by someone else who is neither as learned nor from the same period. St Augustine would not have remained quiet about a sanction by Damasus of blessed memory, nor does anything stand in the way of our believing that the acts of Damasus, at least in those sections which are not read aloud in church—and what kind of a church does that?—are full of faults. I have never heard, either, that it was once customary for Damasus’s acts to be read aloud in full in church but, just as today, we see the acts are inserted in breviaries or read aloud, not in full but in part. In Damasus’s favour there is the one strong argument that several manuscript copies of these acts are extant in Rome, four of which the most illustrious Baronio testifies he has seen, (op.cit. under the year 427), and there is also what Antonio Agustín has said about the canon Episcopi in his fourteenth dialogue. It goes as follows. ‘I have seen it ascribed to Damasus at the Council of Rome in a book by Miguel Tómas who was relying on an old book which contained a biography of that Pope.’202 This opinion, however, also suffers from the difficulties which mine [does not]. First of all, [the canon] is not found among the canons of the two Councils of Rome which were held during Damasus’s pontificate. Nor is it found in an earlier Council of the year 373 during which the sectaries of Apollinaris were condemned, because the canons of that Council have perished. [People] claim that the sentences of excommunication recorded by

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‘He declared that during the night he had got hold of a woman with donkey’s legs, cut off her head, and thrown it into a small mill. Ambrose regarded this kind of speech inappropriate for one of God’s deacons.’ Miguel Tómas de Taxaquet, (1529–1578), came from Majorca and from 1577–1578 was Bishop of Lérida.

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doreti comprehensam, qui nihil pertinent ad d. cap. Episc. Lege Theodoret., lib. 5, Hist. cap. 11. Nec reperitur iste canon in posteriore concil. sub Damaso Romae habito; supersunt isti canones, et in iis nullus est nostro consimilis. Praeterea veterum scriptorum, qui nostrum canonem exhibent, nullus Damaso ascribit; non Burchard. lib. 10, cap. 1, non Ivo p. 11, cap. 30, non auctor sexdecim partialium librorum; non collectores conciliorum, sed omnes consentiunt in Concil. Ancyrense. Multa etiam reperias ad verbum in lib. illo de spiritu et anima, cuius auctor si ex Damasi actis sumsisset, cur non meminisset; solitus, non concilia, sed auctores etiam recentiores, et minoris nominis quam Damasus, citare, ut Boetium, cap. 37, in fine; ut notes Augustinum esse non posse, et cap. 47, quaedam dissentanea Augustino, consentanea Gennadio ponit; nec Possidius in Indiculo operum Augustini hunc memorat librum, et Vincenctius Belloacens. ac Trithemis Hugoni Victorino, nonnulli Etheriano ascribunt. Quare magis vergit animus, ut donec certiora habeamus cum Ancyrano concilio relinquendum, cui tamen arbitror vel a Burchardo, vel aliis quaedam inserta. Sunt enim illo quaedam tradita ad modum Doctoris disputantis, nec certa, nec admodum solida, ut suo mox loco docebo; immo si ad mentem adversariorum interpretemur, falsa, et absurda, prorsusque indigna tum Damaso, tum Ancyranis Patribus. Quae nescio, unde Burchardus descripserit; ab Ivone Gratianus, a Burchardo mutuatus Carnotensis Ivo. Burchardus ex duobus unum canonem conflavit, cui Gratian. etiam de suo tertium limbum in extremo assuit. Nam rectissime glossa Canonica tres in eo partes deprehendit, et secundam incipere ab illis verbis. Illud etiam non omittendum, Gratianus Burchardo et Ivoni tertiam addidit, cuius initium Nonnullis inveniuntur, etc. post illa infidelis et pagano

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Theodoret include a summary of them, but [his anathemas] have nothing to do with the said canon Episcopi. (Read Book 5, chapter 11 of Theodoret’s History.) Nor is this canon found in a later Council held in Rome under Damasus. Its canons survive and there is no canon in them like the one we are discussing. Moreover, none of the old writers who talk about our canon ascribes it to Damasus—not Burchard in Book 10, chapter 1, not Ivo in Part 11, chapter 30, not the author of the sixteen incomplete books, and not the compilers of the Councils’ [proceedings]. On the contrary, they all agree it belongs to the Council of Ancyra. You can also find much of it, word for word, in the book The Spirit and the Soul. If its author had taken it from the Acts of Damasus, why would he not have said so? He is in the habit of citing, not the Councils, but authors, even ones of less standing than Damasus—Boethius, for example, at the end of chapter 37—and in consequence you may note that he cannot be St Augustine; and in chapter 47 he says a number of things which disagree with St Augustine and agree with Gennadius. Possidius does not mention his book in his index to the works of St Augustine; Vincent de Beauvais and [Johannes] Trithemius ascribe it to Hugh of St Victor, and several people to Ugo Eteriano.203 Consequently, I am more inclined to think that until such time as we are better informed, the canon should be left with the Council of Ancyra. I am of the opinion, however, that certain things were inserted either by Burchard or others, because a number of things in it have been transmitted after the manner of a scholar conducting a dispute, and they are neither reliable nor particularly substantial, as I shall point out in a moment in its right place. Indeed, if we interpret them according to the intention of objectors [to the rigorous punishment of witches], they are untrue and ridiculous, entirely unworthy of Damasus and the Council Fathers at Ancyra. I have no idea where Burchard copied them from. Gratian copied them from Ivo, and Ivo of Chartres took them from Burchard. Burchard conflated one canon from two and Gratian also tacked on a third flourish at the end from his own copy, because the gloss to the canon quite correctly sees that there are three parts to it, and that the second begins with the words ‘one should also not leave out.’ Gratian added a third to Burchard and Ivo, which starts ‘several people are found,’ etc, and after those

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Possidius (floruit fifth century) was a friend of St Augustine and compiled an ‘indiculus’ to his works. Vincent de Beauvais (1184/94–c.1264) wrote a wide-ranging compendium (Speculum Maius) which was divided into three parts, Speculum Naturale, Speculum Doctrinale, and Speculum Historiale. He refers to the De Spiritu et Anima in all three: Speculum Naturale., 23 and 25 passim; Speculum. Doctrinale, 17 and 62; and Speculum. Historiale, 18 and 55. Ugo Eteriano (1115–1182) was a Byzantine diplomat and controversialist.

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deterior. In Gratiani ergo verbis tria sunt membra diversorum scriptorum, in Burchardi et Ivonis duo. Primum est: Ut Episcopi eorumque ministri, etc. Usque et ideo a tali peste mundari, debet sancta Ecclesia. Hoc totum reor Ancyrani concilii fuisse; additum forte ad ea quae habeamus in eiusdem concilii can. pen. sancita, vide cap. qui divinationes 26, q. 10. Mediae partis et secundae reliqua, non arbitror esse concilii illius, quae pleraque continentur in Pseudo Augustini lib. De spiritu et anima, sed valde mutilata et truncata, quae cuius sint nescio. Ex hoc libro verbis quibusdam mutatis, et fine atque principio nonnulis additis, primus ille compilator tam illustri additamento, ex suo ingenio, tam magno auctuario concilii canonem adauxit. Nec novum est Gratiano et aliis compilatoribus canonum, cogere in unum diversos canones, nec novum li|brariis praecedentis canonis verba cum praecedentis vel subsequentis canonis verbis confundere: leg. Anto. Aug. Dial. 6 cum seqq. Quae et quanta canonis istius auctoritas? Nunc indagandum. Id ex praecedenti quaestione pendet; communis enim sententia est, et indubitata, etsi Gratiani decretum a sede Apostolica sit receptum, ita tamen receptum esse, ut fides dictorum penes auctorem sit, et tanta sit eorum canonum quos in medium producit auctoritas, quanta est fontium, unde canones illi manarunt. Nec enim quisquam eorum, qui ius Ecclesiasticum vel a limine salutavit, potest ignorare, multa in Decreto haberi, quae postea Decretalibus, Sexto, Clementinis, et Extravagantibus abrogata fuerunt; nonnulla quoque sunt a Gratiano per errorem inserta, quae cum veritate pugnare deprehenduntur, quae nihil nunc necesse est recensere. Notarunt ea viri docti et Catholici. D. Anton. Augustinus diopere Dialogorum, et non uno loco Caes. Baronius Annalium Ecclesiasticorum tomis novem. Quod ut Gratiani aevo concedendum, ita hoc nostro, nimis tenero et acuto, diligenter animadvertendum, ne quis vel contemptu, vel inconsideratione in praecipitium aliquod ruat. Quod ad ipsum vero hunc canonem

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words, ‘has no faith and is worse than a pagan.’ In Gratian’s version, therefore, there are three pieces taken from different manuscripts. In Burchard and Ivo there are two. The first is, ‘so that bishops and their clergy,’ etc. up to ‘and therefore Holy Church must be cleansed of this kind of infectious disease.’ I think the whole of this passage comes from the Council of Ancyra, and perhaps he added it to the decrees we have in the penal canons of that Council. (See the canon, ‘those who practise divinations’ 26, question 10.) I do not think the rest of the central second part, most of which is contained in pseudo-Augustine’s book, The Spirit and the Soul, but in badly mutilated and truncated form, comes from that Council. Whose it is I do not know. A number of words from this book have been changed and several added at the end and at the beginning, and the first compiler augmented the Council’s canon with such a manifest and such an inordinately long addition from his own ingenuity. Compressing different canons into one is not an unusual thing for Gratian and the other compilers of the canons to do, nor is it unusual for copiers to mix up the words of the preceding canon with those of the canon preceding it, or the one which comes afterwards. (Read Antonio Agustín, Dialogue 6, sqq.)204 What is the authority of this canon, and how great is that authority? This must now be investigated. It rests upon the preceding questions, because the general, unquestionable opinion is that, even if one accepts that Gratian’s decree came from the Apostolic See, one’s acceptance is such that trust in what it says rests with [one’s trust in] where it comes from, and the authority of the canons [the Holy See] publishes is as great as the authority of the sources from which those canons have flowed. No one who has even a passing respect for Church law can be unaware that many things are contained in [Gratian’s] Decretum which were later removed from the decretals of Pope Sixtus, the decretals of Pope Clement, and those decretals not contained in Gratian’s compilation. Gratian also mistakenly inserted several things which are seen as fighting with the truth, although there is no need for me to run through them now. Learned Catholics have noted them—Antonio Agustín in his work Dialogues which I have referred to before and, in more than one passage, and Cesare Baronio in the nine volumes of his annals of the Church—and, just as one should pardon Gratian’s age for this, our age, which is over sensitive and subtle, should also take careful note of this, so that no one falls down a precipice either out of contempt or lack of forethought. But this applies to the canon

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The reference is to his De Emendatione Gratiani Dialogi which was published post mortem in Tarragona in 1587.

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Episcopi spectat, cum non sit nisi concilii particularis, seu Provincialis, de cuius a Romano Pontifice approbatione non constat, et ideo errare potuit; non est auctoritatis tantae, ut quae per eum deciduntur certa fide sint credenda, nisi quatenus S. Scripturae, et Ecclesiasticae traditioni, ac definitioni S.A. C. Rom. Ecclesiae sunt, quae tradit, consentanea. Denide longe minor est argumentorum seu rationum, quam sanctionis seu decisionis auctoritas. Nec argumenta habenda pro definitis vel statutis ab ipso illo concilio. Equidem si bono sensu capiantur, et congrua interpretatione fulciantur, ne argumenta quidem illa reiicio Nicol. Remigius vult hunc canonem ex eo capite invalidum censeri, quod Marcellus Ancyranus Episcopus Sabellianismi (ut ait) merito suspectus fuerit (Sic ille lib. 1, Daemonolat., c. 29). Verumtamen hoc plane impertinens est. Nam tunc temporis quando haec Synodus congregata, non videtur adhuc in haeresim prolapsus, nec ipse Concilio huic praesidit, sed Vitalis, Agricolaus, et Basilius Amasenus, teste Balsamone. De ipsa quoque Marcelli haeresi rem plane obscuram esse patet, ex iis quae, post Severum, Epiphanium, et D. Hieron. more suo, diligenter Cardinalis Baronius adnotavit lib. 3, Annal. Addit Remigius huius concilii quoad istum canonem auctoritatem, Patrum, quos posterior aetas tulit, ut Ambrosii, Augustini, Thomae, Bonaventurae, et aliorum sententiis esse impugnatam. Sed (si accurate perpendas) facile videbis Patres illos, de secta, cuius in d. c. Episcopi fit mention, nec verborum unum locutos fuisse; solummodo asseruerunt, transvectionem esse possibilem (hoc est posse a daemonibus corpora de loco in locum transferri), quod non decisioni Canonis, sed rationi eius tantum uni repugnare mox ostendemus. Ratio ergo haec a Patribus istis reiecta merito, non ipse Canon. § Explicatio verborum et sententiae d.c. Episcopi. In Gratiani editione Romana, iussu Gregorii xiii correcta, sic scribitur iste Canon, in principio: “Epsicopi eorumque ministri omnibus modis elaborare studeant, ut perniciosam et a Diabolo inventam sortilegam et magicam artem ex parochiis suis penitus era|dicent, et si aliquem virum aut milierem, huiuscemodi sceleris sectatorem invenierint, turpiter dehonestatum de parochiis suis eiiciant. Ait enim Apostolus: Haereticum hominem post primam et secundam correptionem devita, sciens, quia subversus est qui huiusmodi est. Subversi, sunt et a diabolo capitavi

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Episcopi itself, since it is merely a canon from a particular [i.e. not General] or provincial Council and there is no agreement about whether it had the Roman Pontiff’s approval, and therefore could have been a mistake. It is not of such great authority that its decisions should be believed with blind faith, except to the extent that they are in accord with Holy Scripture, the traditional teaching of the Church, and the decree of the Holy Catholic and Roman Church which is transmitting them. Secondly, the authority of arguments or reasons is far less than that of an ordinance or decision [by the Church], and its arguments should not be regarded as definitions or regulations by the Council itself. But as far as I am concerned, if they are interpreted sensibly and supported by suitable interpretation, I do not reject even those arguments. (Nicolas Rémy wants the canon from this chapter to be considered invalid because Marcellus, the Bishop of Ancyra, was rightly—he says—suspected of Sabellianism. This is what Rémy says in his Worship of Evil Spirits Book 1, chapter 29.) Still, this is clearly irrelevant because at the time the synod met, it does not look as though he had lapsed into heresy and nor did he preside over the Council. That was Vitalis [of Antioch], Agricolaus [of Caesarea], and Basilius of Amasa, as Balsamon testifies. With regard to Marcellus’s heresy, too, it is obvious, (from what Cardinal Baronio noted carefully, in his usual way, following [Sulpicius] Severus, Epiphanius, and St Jerome, in Book 3 of his Annals), that the situation is not clear. Rémy adds that, as far as this canon is concerned, the authority of this Council was attacked by the opinions of Fathers such as St Ambrose, St Augustine, St Thomas [Aquinas], St Bonaventure, and others who came along later. But if you think about it carefully, you will easily see that those Fathers said not a single word about a sect of which there is no mention in the canon Episcopi. They simply maintained that transvection is possible—that is, that bodies can be transported from one place to another by evil spirits— and in a moment I shall demonstrate that this does not go against what the canon decides, but simply against the reasons it gives. It was this reasoning, therefore, not the canon itself, which was quite rightly rejected by the Fathers I mentioned. An explanation of the words and meaning of the canon Episcopi. In the Roman edition of Gratian which was corrected by order of Gregory xiii, this is how the canon begins: ‘Bishops and their clergy must make every effort to uproot entirely from their parishes the practice of magic and divination by casting lots which was invented by the Devil, and if they find any man or woman who is a follower of this criminal activity, they should throw him or her out of their parishes in disgrace, with every mark of shame, because the Apostle says, “Shun anyone who is a heretic after the first and second reproof, since you know that a person who is like this has been subverted,” [Titus 3.10–11]. They

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tenentur, qui reiicio creatore suo Diaboli suffragia quaerunt, et ideo a tali peste debet mundari sancta Ecclesia.” Hactenus prima pars canonis, quae nec luce, nec confirmatione alia indigest, utpote satis clara et certa. Statuerant Ancyrani concil. Patres, alio canone, sortilegos quinquennali poenitentiae subiici; nunc isto canone sanciunt de ipso crimine magiae et sortilegii quid in genere existiment, nempe pestem esse, et omnimodis eradicandam etiam poenis infamibus, ut detonsione, flagris etc., quae hodie adhuc in usu vigent. Apostoli illa verba pessime Erasmus de factosis exposuit seu contentiosis, ut et Calvinus et Hofinannus haeretici, sed de vere ac proprie dictis haereticis optime D. Hieronymus, Ambros. Sedulius, Theophilactus, Caietanus, et caeteri Catholici, immo et ex suspectis magnus Erasmi amicus Faber Stapulensis. Unde recte elicio ex hoc quoque Canone sortilegia, et magicas artes ad haereticam pravitatem et eius inquisitiones pertinere, servata tamen distinctione, quoad poenam, sortilegi haeretici, et non haeretici, de qua disserui hoc eodem libro, sect. 2, et 15. Ait Diaboli suffragia, hoc est auxilium, quaerere, qua eum pro creatore et opitulatore colunt, tanquam Deum, quae est basis et fundamentum totius cap. Episc. Et iacto fundamento contrario, nempe unum esse Deum, nec aliud praeter eum numen, contra quam Gentiles credunt; ostendit cum Gentilib. eadem perfidiae macula deformes esse quosdam Christianorum, de quibus subdit, parte secunda: “Illud etiam non est omittendum, quod quaedam sceleratae mulieres retro post Satanam conversae, daemonum illusionibus et phantasmatibus seductae, credunt et profitentur se nocturnis horis, cum Diana Dea Paganorum, vel cum Herodiade et innumera multitudine mulierum, equitare super

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have been subverted and are being held prisoner by the Devil. They have abandoned their Creator and are looking for the Devil’s support, and therefore Holy Church must be cleansed of this kind of infectious disease.’ This is the first part of the canon and does not need any light to be shed on it or any other corroboration, since it is clear and straightforward enough. The Fathers of the Council of Ancyra had decided, in another canon, that casters of lots be subject to five years of penance. Now by this canon they set out what, in general terms, they think about the crime of magic and divination— that it is a disease and should be eradicated entirely, even by dishonourable punishments such as shaving the head, flogging, and so forth, which are still in widespread use today. Erasmus expounded those words of the Apostle very badly on the grounds that they are factious and contentious, as did the heretics Calvin and [Melchior] Hoffman. St Jerome, St Ambrose, Sedulius, Theophylact, [Cardinal] Cajetan, and every other Catholic, however,—and, indeed, if one includes suspect individuals, [Jacques] Lefèvre d’Étaples, a great friend of Erasmus—have explained very well that actually and properly speaking they refer to heretics.205 Consequently, I also correctly deduce from this canon, that divination by casting lots and the practice of magic belong to the perversity of heresy and the things it is searching for. But as far as punishment is concerned, I preserve the distinction, which I discussed in this Book in sections 2 and 15, between a diviner who is a heretic and one who is not. [The canon] says, ‘they are looking for the Devil’s support,’ that is, his help, which is why they worship him as God, their creator and one who gives them succour, and this is the basis and fundamental point of the whole canon Episcopi, and once the opposite fundamental point has been made, (that there is one God and no other one but He, contrary to what the heathen believe), it points out that there are certain Christians who, along with the heathen, are made ugly by that same stain of treachery. In connection with them the second parts adds: ‘One should also not leave out that a number of criminally wicked women who have turned themselves round [to ride] backwards behind Satan and have been led astray by illusions and apparitions caused by evil spirits, believe and openly declare that during the night hours they ride on certain kinds of creatures, along with Diana, a goddess of the pagans, or with Herodias

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Melchior Hoffman (c.1495–c.1543) was an Anabaptist with a number of radical political, as well as religious ideas. It is not quite clear to which Theophylact Del Río is referring— possibly, because of the emphasis on ‘Catholic’, i.e. Roman—Theophylact the Archdeacon, (floruit eighth century). Jacques Lefèvre d’Étaples (c.1455–c.1536) was a French theologian considered to have heretical leanings and several of his books were condemned in France for that reason.

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quasdam bestias, et multarum terrarum spacia intempestae noctis silentio pertransire, eiusque iussionibus velut Dominae obedire, et certis noctibus ad eius servitium evocari.” His verbis tota narratio criminis, et sectae huius graphica descriptio proponitur. Unicum autem crimen impingitur illis, Apostasiae et infidelitatis ex delusione per daemonem natae; fuisse enim has mulierculas adeo sceleratas, ut Dianam Numen Gentilium, et foeminarum nequissimam Herodiadem, pro Deabus colere se faterentur, et alias in eumdem errorem pertrahere conarentur. Merito itaque sceleratas vocat, quae a Deo recedentes, et a fidei puritate desciscentes Satanam sequuntur. Sequuntur autem Satanam et post eum convertuntur, quia (ut aiunt) Dei dominium deserebant, et Diaboli servitio et mancipabant, eiusque iussionibus parebant, certis noctibus evocatae, mentitas illas bestias conscendentes, et Dianam venatricem Pseudonumen Paganum, vel Herodiadem incaestam et innoxio Praecursoris Dominici sanguine cruentam, comitari se et colere credebant. Et his omnibus certam fidem praestabant, et eadem animo comprobantes, et fieri quae credebant optantes, ut credulitate, sic voluntate peccabant. Haec summa narrationis. Cui facile credent qui sciunt quid Mantenses Magi nostris temporibus, de Sibylla Nursina, et alia prope Parisios degente, in Actis Iudicia|riis sunt professi, quae ex Crespeto praecetedentibus libris commemoravi. In nostra canonis narratione, notet Lector primo, in illo cursu seu pompa daemonica adfuisse cursus Dominam seu Reginam, ut hodiernae quoque sagae fatentur, et eam nominatim dici, vel Dianam vel Herodiadem; additur in libro illo de anima et spiritu: Minerva. Talis pompae quoddam simulachrum legitur in narratione B. Antonini, quam exhibui lib. 3, p. 1, q. 4, sect. 8, ubi etiam Venus mulo vecta; an quia meretrici sterilitas convenit? Dianam eandem cum Hecate seu Proserpina, docui Magicum Numen fuisse, host est cacodaemonem. comment. in Senecae Medeam, vers. 7, 11, et 787 et Dominae nomen illi peculiare fuisse; inde petat, qui volet. De Herodiade idem dicendum; quia sub hoc

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and a countless number of other women, silently pass through the open countryside of many lands in the dead of night, obey the orders of Diana as though she were their mistress, and are called to her service on particular nights.’206 The whole story of their criminal activity and a vivid description of this sect is given in these words. But a single crime of apostasy and lack of faith, arising from a delusion brought about by the Evil Spirit, is imputed to them because these silly women were so polluted by their crime that they used to confess they worshipped Diana, a divinity of the heathen, and Herodias, the most wicked of women, and would try to drag other women into the same error. The canon therefore quite rightly calls those women who retreat from God, withdraw from the purity of the Faith, and follow Satan ‘criminally wicked’. They follow Satan and ride backwards in his wake because, (so they say), they were forsaking the lordship of God and enslaving themselves in the service of the Devil, and were obeying his orders when they were called out on certain nights, mounted those counterfeit creatures, and accompanied Diana the Huntress, the pagans’ pseudo-deity, or lewd Herodias who was stained with the blood of the innocent fore-runner of the Lord, and believed they were worshipping them. They would evince a certain loyalty to all these things, and sanction them, and choose to become women who believed in them, and would sin in belief as well as in will. This is a summary of what the canon tells us, and those at the present day who know what the magicians of Le Mans confessed in the records of their trial about the Sibyl of Nursa and another one who lived near Paris, will find it easy to believe it. (I have mentioned this story, which I got from [Pierre] Crespet, in the preceding Books.) In my account of the canon, the reader should note first that, in that passage or demonic procession, there was present a mistress or queen, just as modern witches [sagae] say, and that she is called Diana or Herodias. (‘Minerva’ is added in the book, The Soul and the Spirit, which I have mentioned). One reads something like this procession in a narrative by St Antoninus, which I set out [for the reader] in Book 3, part 1, question 4, section 8, in which Venus was carried on a mule.207 Is this because she was bringing barrenness to a prostitute? I have said that this Diana, as well as Hecate or Proserpina, was a goddess of magic, that is, an evil spirit. (See my commentary on Seneca’s Medea, verses 711 and 787), and that the name was peculiar to the ‘mistress’ I mentioned. (Anyone who wants to do so can look there.) The same can be said of Herodias, 206 207

‘Riding backwards.’ See Albrecht Dürer’s engraving, ‘Witch Riding Backwards on a Goat’, c.1500. The section to which Del Río refers deals with the malefice of binding which renders men and women incapable of performing the sexual act.

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nomine daemon aliquis (forte Venus) colebatur. Herodias fuit Aristobuli filia Salomes saltatriculae mater, et utraque dignum vita exitum vitae invenit, narrante rem Nicephoro lib. 1 Hist., cap. 20: certum neutram ex inferno rediisse, neutram choreis illis adfuisse; falsa ergo persuasio fuit muliercularum, quod cum Diana vel Herodiade equitarent; falsa etiam, quod super bestias equitarent, quia veterinaria haec erant daemones, qui bestiarum formam assumpserant, falsa etiam, quod crederent veras bestias posse tam exiguo temporis spacio adeo dissitas provincias pertransire. Quid mirum si triplici mendacio tinctam persuasionem canon reprehenderit, et hanc idololatriam, ut haeresim verbis seqq. damnaverit? “Sed utinam hae solae in perfidia sua periissent, et non multos secum ad infidelitatis interitum pertranxissent. Nam innumera multitudo hac falsa opinione decepta, haec vera esse credunt, et credendo a recta fide deviant, et errore Paganorum involvuntur; cum aliquid divinitatis aut numinis extra unum Deum arbitrantur.” Totus hic versic. deest Pseudo Augustino illi, sed habent Ivo et Burchard., nisi quod pleraque legunt in singulari numero, item: “et in errore paganorum revolvitur.” Nunc, commemorata muliercularum huismodi credulitate, quid in ea et quale quam vitiosae perfidiae insit malum ostendit; nempe latens daemonis pro Deo cultus; hunc vocat perfidiam, infidelitatem, falsam opinionem a recta fide deviationem, et errorem paganorum; quae omnia sic connectit, ut unum alterius sit ratio et explicatio; nam (et) simul pro copula et causali particula hic (ut alias saepe) sumendum. Cum dicit (utinam hae solae etc.) non laetatur de istarum interitu, sed optat nullas alias praeterea in idem perfidiae barathrum pertractas, et id factum dolet. Unde colligas, quam sint in Ecclesiam et remp. crudeles, qui in tales mulierculas seductas et seductrices volunt clementes videri. Ait: Perfidia, quo nomine non compellat ipsam daemonum illusionem, praestigias seu phantasmata; nam longum est discrimen inter illudi, et perfidum esse. Saepe sanctissimis viris daemon per phantasmata illudit, ut de B. Secundello, Iordano et aliis docui lib. 3 Disquisit., quorum tamen in mente animi nulla infuit perfidia. Perfidia fidei, illusio seu deceptio prudentiae contra-

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because some evil spirit—perhaps Venus—used to be worshipped under this name. Herodias was the daughter of Aristobulus, and the mother of the dancer Salome, and both found a way of leaving life which was worthy of that life. (Nicephorus tells the story in Book 1, chapter 20 of his History.) It is certain that neither of them came back from Hell, and neither was present at the dances I mentioned, and so the silly women were wrong in thinking that they were riding with Diana or Herodias. They were wrong, too, in thinking they were riding on wild creatures, because their beasts of burden were evil spirits who had assumed the shape of wild creatures; and they were wrong when they believed that real animals can cross such remote provinces in such a short space of time. Why is it surprising if the canon censures a belief which is soaked in a threefold lie, and condemns this idolatry as heresy in the following words? ‘If only these women had been the only ones to perish in their treachery and had not drawn many people along with them into a faithlessness which destroys them! Because a countless number of people, deceived by this false notion, believe it is true and, by believing it, stray from the correct faith and are swept away [involvuntur] by the pagan error of thinking that there is some kind of divinity or divine power outwith the one God.’ None of this short passage appears in pseudo-Augustine. Ivo and Burchard, however, do have it, except that they gather most of it together in a single passage and also read ‘and return to [revolvitur] the error of the pagans.’ Now, after mentioning the kind of credulity these silly women have, it shows what evil there is in it, and what kind of evil stemming, of course, from their corrupt treachery, lies hidden in their worshipping an evil spirit instead of God. The canon calls this ‘treachery’, ‘lack of faith’, ‘a false notion’, ‘a deviation from the correct faith’, and ‘the error of the pagans.’ It connects all these in such a way that they account for and explain each other, because ‘and’ here should be taken—as it often is elsewhere—as both a connective and a causal particle. When it says, ‘If only these women had been the only ones’, etc., it is not taking pleasure in their death, but wants no other women apart from these to be dragged into the same abyss of treachery, and it is sorry that this has happened. Consequently, you can understand how cruel to the Church and to the state are those who want to appear to be merciful to such silly women—those who have been led astray and those women who have led them astray. It says ‘treachery’, by which it is not referring to the actual delusion, conjuring-tricks, or mental apparitions produced by evil spirits, because there is a big difference between being deluded and being treacherous. The Evil Spirit often deludes the holiest of men by creating images in their heads, as I pointed out in Book 3 of Investigations, in connection with St Secundellus, Jordanus, and others, but there was not treachery in their minds. Treachery to the Faith is the opposite of illusion or

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ria est. Ipsum itaque perfidiae nomen, docet hoc loco non agi de illusione qua illusio est, sed de illusione qua est coniuncta cum perfidia, seu de muliercularum deceptarum perfidia, qua talis, h.e. qua infidelitas est. Etenim illusio hic tantum erat fons perfidiae, et qua talis erat, eius quoque men|tio praetermitti non potuit, ut de infidelitate commodius, quod intendebat, canon probaret, ut peccati fonte et causa cognita, peccatum iustius damnatum intelligeretur. Ait: Infidelitatis, ut sciamus quid perfidiam vocarit; eandem mox vocat falsam opinionem, cuius falsitas in eo, quod et veras bestias, et illas Dian. et Herod. adesse, et numen esse opinabantur. Et propter hoc ultimum dicit a recta fide defecisse, cuius dicti subdit rationem, quia sic errore Paganorum involuuntur, quia quod Pagani sentiunt, videlicet plures uno Deos esse, idem ipsae sentiunt. Hoc enim subdit in vers. fine, ad manifestandum de quo errore Paganorum sit locutus. Nihil his omnibus verius, nihil clarius; et valde obtusum pectus gestet, qui non quo sequentia tendant ilico perficiat. Sequitur: Quapropter Sacerdotes per Ecclesias sibi commissas populo Dei omni instantia praedicare debent, ut noverint haec omnino falsa esse, et non a divino, sed a maligno spiritu, talia phantasmata mentibus fidelium irrogari. Nihil horum etiam apud Pseudo Aug. continetur; sed agnoscunt ea Burchar. et Ivo. apud quos tamen in q. l pro fidelium est infidelium, quae variatio reperitur etiam in Gratiani codicibus. Res autem eodem recidit fideles fuere ante perfidiam, infideles factae hac persuasione. Nunc periti more medici morbo ostenso medicinam Canon apparat; ideo enim monet divini verbi praecones, Doctores et ductores animarum, ut pedo veritatis pestem ab ovibus, quas nondum scabies invasit, sedulo arceant, docendo quae seqq. versic. praescribentur. Ait: Haec omnino (sive ut Burch. et Ivo, omnimodis) falsa esse. Quae haec? Nempe quod de transvectione super veras bestias, et de comitatu Dianae et Herodiadis, et de earum dominio ac numine dicta sunt, omni ex parte et undequaque mendacia esse. Phantasmata sic vocat, non imagines seu simulachra

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the deception of one’s judgement. Therefore, the very word ‘treachery’ in this passage tells us that the canon is not dealing with illusion as illusion, but illusion as conjoined with treachery, or the treachery, as such, of foolish women who have been deceived—that is, treachery as faithlessness. Indeed, here illusion is simply the source of treachery and, in as much as it is so, the canon could not have failed to mention it, the better to prove what it was saying about faithlessness so that once the source and cause of sin had been recognised, the sin the canon had condemned would be better understood. It says, ‘of a lack of faith,’ so that we may understand what it calls ‘treachery’. It goes straight on to call it a ‘false opinion’ whose falsity lies in the women’s thinking the animals are real, that Diana and Herodias are present, and that they are divine. Because of this last point, too, it says the women have removed themselves from the true faith and adds an explanation of this—that because of this ‘they are swept away by the pagan error,’ meaning that these women have the same notion as pagans do, (namely, that there is more than one God.) The canon adds this at the end of the passage in order to make clear which error of the pagans it has been talking about. Nothing is truer than all this, nothing is clearer, and a person would have to be remarkably dull-witted not to realise immediately where the remarks which follow were going. It goes on, ‘Consequently, priests throughout the churches committed to their care ought, as a matter of the utmost urgency, to preach to the people of God, so that they can know that these notions are entirely untrue, and that fanciful ideas such as these are inflicted on the minds of the faithful, not by the Holy Spirit but by the evil spirit.’ None of this is contained in pseudoAugustine, either, but Burchard and Ivo recognise it, (although their versions have ‘the unfaithful’ instead of ‘the faithful’.) This variation is also found in the manuscripts of Gratian, but it boils down to this—the women were faithful before their treachery and became faithless as a result of what they had been persuaded to believe. Now, having pointed out the disease in the manner of a skilled physician, the canon prepares the medicine, because it advises the heralds of God’s word— scholars and the guides of souls—that with the shepherd’s crook of truth they should unremittingly keep the disease away from the sheep who have not yet been attacked by the mange by instructing them in what the following passage prescribes. The canon says, ‘these notions are entirely’—or, as in Burchard and Ivo, ‘in every way’—‘untrue.’ What notions? Undoubtedly what the women are told about being carried on real creatures, and the train of Diana and Herodias and their lordship and divinity, every jot and tittle of which is a lie. It uses the phrase ‘fanciful notions’ to describe, not simply the images or likenesses which have

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quae obiecta fuerunt intellectui sola, sed simul ipsos circa haec errores. Nam non tam quaeritur an a bono ista spiritu, vel a malo immissa, quam an ista vere, an illusorie et praestigiose tantum contingant. Atque ita iam habemus erroris narrationem, damnationem, et remedium; statim subdit decisioni rationes, quibus Sacerdotes, per Ecclesias sibi commissas huius perfidiae gravitatem et vanitatem populo queant persuadere. Huc enim perspicue omnia sequentia verba tendunt, usque ad vers.: quisquis ergo aliquid, ubi rursus definitio seu sanctio condemnatoria contra hosce haereticos iteratur. Rationes autem has desumit a causis ac modis illusionis ipsius, dicens: Si quidem ipse Satans, qui transfigurat se in Angelum lucis, cum mentem cuiuscunque mulierculae ceperit, et hanc sibi per infidelitatem subiugaverit, ilico transformat se in diversarum species personarum atque similitudines, et mentem, quam captivam tenet, in somniis deludens; modo laeta, modo tristia, modo cognitas, modo incognitas personas ostendens; per daevia quaeque deducit, et cum solus spiritus hoc patitur, infidelis mens hoc non in animo, sed in corpore evenire opinatur. Causam duplicem illusionis proponit deludentem et delusam. Ex parte deludentis, quia hoc diabolo, qui vult deludere, non difficile. Nam potest istis maiora. Modum vero quo deludere sit solitus ostendit, haec eum in spiritu facere. Sed quia hoc potest duobus modis contingere, primo iis qui dormiunt, et nullatenus vigilant, secundo non plane dor|mientibus, sed semivigilantibus quando eis obiiciuntur simulachra aut plane praestigiosa, aut apparentia in corporibus per daemonem formatis vel assumptis: ideo quaeri solet de quo istorum duorum modorum canon nunc loquatur? Spin. contendit loqui de posteriore tantum. Probat quia si de priore loqueretur, frustratoria esset ratio. Nam postmodum expergefacti animadverterent sibi dormientibus illa per visionem dumtaxat imaginariam accidisse, quemadmodum id animadvertunt post exstasim qui rapti fuere. Atque ita fieret ut istae in perfidiam non laberentur per falsam credulitatem. Verum haec argumentatio parum stringit. Cur non et exstasis, et in somnis illusio adeo vehemens esse queat, ut post-

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been cast in the path of the understanding, but also of the actual errors involved in these notions, because the question is not so much whether they were sent by the Holy Spirit or the Evil Spirit, as whether they are real or simply illusory and the result of a conjuring-trick. Thus, we now have an account of the error, a condemnation of it, and a remedy for it. The canon immediately adds the reasons for getting rid of it, whereby priests can persuade the people throughout the churches committed to their care how serious and false this treachery is. All the words which follow as far as the phrase ‘therefore anyone [who believes] that anything,’ conduce to this purpose, where once again a decision or decree of condemnation is repeated against these heretics. It chooses these reasons with respect to the causes and methods of the illusion itself, saying, ‘If indeed Satan himself, who transforms himself into an angel of light, captures the mind of some silly woman and subjugates her to himself by depriving her of her faith, he then immediately transforms himself so that he looks like and resembles different people, and in dreams plays tricks on her mind which he holds prisoner, showing her at one time things which are cheerful, at another, things which are sad, at another, people she recognises, and at another, people she does not recognise. He leads her through unfrequented places, and even though only her spirit is experiencing this, her faithless mind thinks it is happening physically, not just in her head.’ The canon proposes a two-fold cause of the illusion, one which deludes and the other which is deluded. On the one hand it deludes because it is not difficult for the Devil who wants to delude someone, since he can do a great deal more than this, and the canon points out the way in which he usually has deluded someone—by making things happen to him in spirit. Now, he is able to make this happen in two ways: (i) to those who are asleep and not awake at all, and (ii) to those who are not entirely asleep, but half-awake, when he throws in their path images which are either clearly the result of conjuring-tricks, or apparitions in bodies which have been created or assumed by an evil spirit. So, one asks one’s usual question: which of these methods is the canon talking about at this point? [Bartolomeo della] Spina maintains it is talking only about the second one, his proof being that if it were talking about the first, its meaning would be deceptive because, according to this, once they had been woken up, they would realise that those things had happened to them while they were asleep and that, just as those who have been snatched away in an ecstasy realise as much afterwards, they had seen them merely in their imagination, and in consequence these women would not slip into treachery because of a spurious credulity. This argument, however, scarcely holds together. Why can an ecstasy and an illusion seen in dreams be so strong that shortly afterwards a person can

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modum homo credat se vigilantem ea corporeo sensu passum fuisse? Quare malo dicere, c. de utroque modo intelligendum, ac solummodo excludi plenam et omnis somni expertem vigiliam, quae interpretatio verbis contextus multo melius convenit. Et quocunque modo, illud (solus spiritus) sumas, non docet semper id in solo spiritu fieri, nec ullum hic verbum reperias, quo id convinci queat; tantummodo docet sic fieri solere; et cum ita fiat, adeo caute hunc impostorem irrepere, ut tamen, quibus illusi, hi credant et pertinaciter contendant, vere haec sibi vigilantibus evenisse. Qui transfigurat se, qui solet nonnunquam se transfigurare in Angelum lucis; sumptum a D. Paulo. 2. Cor. 11, v. 14, qui usus voce μετασχηματίζεται, h. e. assumit similitudinem et quasi schema Angeli lucudi et gloriosi, ne putes de ipsa specie seu forma essentiali mentionem fieri, sed de externo tantum splendore, quo Angeli lucis, hoc est splendentis et gloriosi, tenebrio iste lucifugus fulgorem et claritatem imitatur; qua da re consuli potest D. Athanasius in vita Beati Antonii. Est autem argumentum a maiore ad minus. Si aliquando potest imitari et exhibere ipse miser et caliginosus speciem Angeli beati? Cur non et alias species viliores et damnatorum, ut Dianae, Herodiadis, etc. Hoc ergo facit primo; deinde postquam qualis apparet talis creditur esse a muliercula quapiam (nam cuiuscunque positum pro cuiusvis vel alicuius, quo pacto non crediderim locutum B. Damasum, sed potius Burchard. vel Gratianum), tum illam perducit ex errore in infidelitatem, et ex illusa facit infidelem, scilicet persuadendo se ut Numen credi et coli. Postquam vero semel hac infidelitate mentem imbuerit, proclive est frequentius atque frequentius eam in somnis deludere. Hinc porro patet quae sit causa ex parte delusorum, nempe infidelitas propter quam Deus permittit sic eas deludi. Nisi enim crederent divinitatis aliquid Dianae ac Herodiadi competere, nunquam illas adorarent, vel si comitarentur. Nunc cum, ut Pagani, id credant, Deus permittit, sic illas a daemone per insomnia et imaginarias species deludi, ut credant factum, quod nec fieri quidem potuit. Cum mentem cuiuscunque: non sic intelligas, quasi vocula cum inferat hoc necessario a daemone fieri, ita ut nequeat eas vere transportare, sed tantum

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believe he has undergone them sensibly and physically while he was awake? For this reason, I prefer to say that, in relation to both methods and to each separately, that one cannot exclude [the possibility] that he was wide awake and not asleep at all. This interpretation fits the context of the words very much better. Whichever way you take ‘spirit alone’, too, it does not always mean that this happens only in spirit, nor can you find any words in this passage which can prove that it does. It merely says this is usually the case, and that since this is so, this imposter has crept cautiously and imperceptibly, but in such a way that those who have been subject to these illusions believe and stubbornly maintain that they really did happen to them while they were awake. ‘Who transforms himself’: who is sometimes in the habit of transforming himself into an angel of light. This is taken from St Paul, 2 Corinthians 11, verse 14 which uses the word μετασχματίζει, that is, assumes the likeness and, as it were, the posture of a bright, glorious angel. Do not think the canon is talking about the [angel’s] actual appearance or essential form. It is talking merely about an external splendour with which the trickster, (who flees from the light), imitates the brilliance and brightness of an angel of light—that is one which shines and is glorious. (On this, St Athanasius’s life of St Antony can be consulted.) But this is an argument from the major proposition to the minor. Suppose the gloomy wretch can sometimes look like a blessed angel. Why [can he not look like] other, baser forms of the damned, such as those of Diana, Herodias, and so forth? So, he does this first and then, later on, whoever he appears to be, some silly woman believes he is who or what she is seeing, (because ‘of every kind of [silly woman]’ means ‘of any’ or ‘of some sort of’, which is why I do not believe what Damasus says, but rather Burchard or Gratian); and then he guides them from error into loss of faith, and from a woman suffering from an illusion, he makes one who has no faith—that is, he persuades her to believe he is a divinity and to worship him as such. But after he has once imbued her mind with this faithlessness, it is more and more often likely that he will delude her when she is asleep. From this, it is clear why some of them are deluded—[because of] their loss of faith, on account of which God allows these women to be deluded this way because, if they did not believe there was some kind of divinity in Diana and Herodias, they would never worship them or become part of their train. Nowadays, when they believe this, as the pagans did, God allows them to be deluded by the Evil Spirit through dreams and imaginary apparitions in such a way that they believe their experience is real, even though it could not have been. ‘When [he captures] someone’s mind.’ Do not interpret the vocable ‘when’ as though it necessarily means that this is done by an evil spirit in such a way that he cannot transport them in reality, only that it is implied that this is what

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inferri id quod contingit; hoc est (ut loquuntur) cum non habere vim inferendae necessitatis antecedentis huius dicti ad consequens, sed contingentiae seu possibilitatis tantummodo. Solum enim vult probare, daemoni possibile esse sic has deludere. Species atque similitudines: coniunctio atque vim | habet explicandi, nam ne de vera specie, seu essentiae mutatione quis capiat, additur posterius, quasi dicat species hoc est similitudines. Captivam infidelitate Per devia quoque deducit, hoc est fingit se corporaliter eas per invios calles et varias semitas desertaque loca deducere. Nam si vere per devia deduceret, iam sibi ipsi canon repugnaret, concedens vigilantium animas saltem deduci; quod esset absurdius, nec enim mens a diabolo extra corpus suum potest deduci. Cum solus spiritus hoc patitur: Burchard. etiam, Ivo, et Pseudo. Augustinus habent patitur, quod positum pro patiatur, sed restringitur ad sectam istarum muliercularum, de quibus est sermo. Nam istae non poterant, nisi in somnis, talia perpeti, nec possibile erat Diabolo illa re ipsa exhibere (nempe Dianam aut Herodiadem Numen, aut veras bestias tam celeriter se moventes), quae simulabat. Necessarium itaque fuit, hoc illis perpetuo contingere apparenter. Unde etiam patet, quam inepte hinc strigum patroni colligant, ne nunc quidem unquam mulierculas maleficas corporaliter haec pati, hoc est vere de loco in locum transferri, aut concumbere. Quin etiam de his ipsis Dianianis non affirmatur, quid fieri possit, vel non possit, sed tantum quid de facto fieri soleat, vel non soleat. Subsequitur in Canone: Quis enim non in somnis et nocturnis visionibus extra se educitur, et multa videt dormiendo, quae nunquam viderat nocturnis vigilando? Quis vero tam stultus et hebes sit, qui haec omnia quae in solo spiritu fiunt, etiam in corpore accidere arbitretur. En primum argumentum quo probat haec muliercularum dicta ex mera illusione manasse, et videri illis facta, quae nunquam facta fuerunt. Probatio huiusmodi est: Nemo est cui non, concurrente sola vi naturali, frequenter accidat multa videre somniantem, quae putat se pervigilem videre, et ideo experrectus putat se non in somnis, sed in vigilia, haec conspiticatum. Quod si tantum naturalis causa passio puta praecedens, languor, vel quid simile potest, pollet-

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happens—that is, (as they put it), ‘when’ does not have the power to imply the necessity of what is said before in relation to what comes after it, but simply its potentiality or possibility, because the canon merely means to show that it is possible for an evil spirit to delude these women this way. ‘Looks like and resembles.’ The conjunction ‘and’ has the power to explain because, lest anyone understand this to refer to a real appearance or a change of essential being, ‘appearances’ is added later [in the sentence] to mean ‘likenesses.’ ‘Holds prisoner,’ because of her loss of faith. ‘He also leads her through unfrequented places’: that is, he pretends he is drawing her physically through trackless mountain-passes, along various pathways, and through uninhabited places. If he really were drawing her through unfrequented places, the canon would be contradicting itself and granting that the [women’s] souls, at least, were being drawn while the women were awake. But this would be ridiculous because the mind cannot be drawn out of its body by the Devil. ‘Even though only her spirit is experiencing this.’ (Burchard, Ivo, and pseudo-Augustine have ‘is suffering’ instead of ‘can suffer’.) This, however, is restricted to the sect of the silly women the canon is talking about. The women could not do such things except in sleep, and the Devil could not cause in reality the things he was counterfeiting—Diana, the divinity Herodias, or genuine animals able to move at such speed. So, they must always be happening to women in appearance only. Consequently, it is also clear how inept witches’ [strigum] protectors are when they deduce that, even these days, silly women who practise harmful magic never go through these things physically—that is, being transported from one place to another, or having sex [with evil spirits]. But in regard to these followers of Diana the canon does not say what can or cannot happen, merely what usually does or does not happen in fact. The canon goes on: ‘Who is not led outwith himself during dreams and what he sees at night and who, while asleep, sees many things he has never seen while he is awake at night? Yet who can be stupid and foolish enough to think that all these things which are taking place in spirit are also happening to him physically?’ Here is the first piece of evidence with which the canon proves that what it has been saying in regard to those silly women has flowed from simple illusion, and that the things which appear to have happened to them have never actually happened. The proof is as follows. There is no one to whom, simply as the result of the working of a natural power, it cannot frequently happen that while he is dreaming, he sees many things which he thinks he is seeing while he is fully awake, and in consequence, when he actually is awake, he thinks he has had a glimpse of them, not in sleep, but in a waking state, because if there can or could simply be a natural cause—something which happened before [he went

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que, quanto id facilius erit virtuti causae superioris, qualis est potentia diabolica, quae naturalibus illis, non liberis, causis abuti, cum vult, potest? Igitur dementis ac stupidi foret hominis contendere, huiusmodi non potuisse non corporaliter simul contingere. (Hinc subinfert tacite mulierculas istas fuisse delusas, quia quae in spiritu tantum illis contingebant, ea sibi vigilantibus accidere corporeo sensu percepta contendebant), sicut hebes foret, qui naturales somniorum delusiones verarum rerum ac factorum nomine cohonestaret, quia visus sibi vigilando ista perpetrare. Sensus ergo istorum verborum: Qui haec omnia, quae in solo spiritu, etc. pendet a superiore membro. Scilicet, haec omnia quae nunquam vigilantes viderant, sed viderant tantum cum dormiebant. Qui hunc sensum esse non videt, nae ille vigilans somniat, et oculis apertis nihil videt. Adversarii autem nostri, sic interpretantur: In somnis homo saepe videt quae nunquam viderat vigilans: ergo mulieres etiam istae decipiuntur in omnibus quae fatentur a se facta vel visa. Nonne vitium consecutionis vel pueri viderent; nempe falsum assumi, aut saltem id quod prius fuit probandum, mulieres istas tantum somniasse quae fatebantur. Aeque perperam exponunt quod sequitur; stultus et hebes est, qui quae in solo spiritu fiunt, etiam in corpore accidere arbitrantur: ergo stulti sunt et | hebetes, qui credunt ista mulieribus his simul in corpore accidisse. Quis enim non continuo excipiat, quin tu prior probas haec in solo spiritu facta, et tum demum tibi corpus licebit excludere. Ut enim canonis honori consulatur, necessarium est haec sic coniunctim accipere, quae in solo spiritu fiunt, ea simul in corpore contingere non posse; non vero quae in spiritu fiunt, etiam simul in spiriu et corpore contingere non posse; hoc est, ea quae quis somniat simul somnianti revera contingere non posse quo nihil foret absurdius. “Cum Ezechiel propheta visiones Domini in spiritu, non in corpore, vidit? Et Ioannes Apostolus Apocalypsis sacramentum in spiritu, non in corpore vidit et audivit? Sicut ipse dicit: statim, inquit, fui in spiritu. Et Paulus non audet dicere se raptum in corpore.”

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to sleep], for example, weariness, or something such as that—if the power of a Higher Cause is going to find it quite easy to do this, what can one say about the Devil’s power which makes unrestricted use of those natural causes when it pleases? Therefore, it would be the act of a madman and a dolt to object that [the Devil] could not make this happen and could not make it happen physically. In consequence the canon silently implies that these silly women were deluded because they would keep on maintaining that they felt that what had happened to them only in spirit was happening to them physically while they were awake, just as someone who graced the natural delusions of dreams by calling them real happenings and things he had actually done, would be a complete fool, because he thinks he is doing these things while he is awake. So, the sense of the words ‘who [is experiencing] all these things only in spirit’ depends on the phrase [which comes] before ‘only in spirit’, namely, ‘all these things’— which they had never seen while they were awake, but only while they were asleep. Anyone who does not understand that this is the sense—that the person is dreaming while awake, with his eyes wide open, understands nothing. My opponents, however, interpret the words as follows. In sleep, a person often sees things he had not seen while he was awake. Therefore, these women, too, are deceived with regard to everything they say they have done or seen. Wouldn’t they, (or children), see what is wrong with that [logical] sequence? It is undoubtedly a false assumption, or at least what comes before it should have been proved—that these women merely dreamed what they were confessing. Equally false is [my opponents’] explanation of what comes next—that the person is a fool and a dolt who thinks that what the women do only in spirit, they also do physically, and therefore those who believe that these things happen to the women physically are also stupid and doltish. Who does not immediately object that you first prove that these things were done only in spirit and that then it will be permissible for you to exclude the body? To show respect for the esteem in which the canon is held, [they say], one must accept both the following points: what happens only in spirit cannot simultaneously happen physically, and what does not happen in spirit cannot also happen simultaneously in spirit and physically—that is, what someone is dreaming cannot actually happen to the dreamer at the same time. Nothing could be more absurd than that. ‘When did Ezechiel the prophet see his visions of the Lord in spirit and not physically? Did John the Apostle see and hear the mystery of the Apocalypse in spirit and not physically? He himself says, “Immediately I was in the spirit”,208 and St Paul is not bold enough to say he himself was snatched away physically.’

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There is a marginal note here. ‘Ivo, “he himself said he was immediately in the spirit”.’

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Ecce S.S. exempla, quibus probat nonnunquam aliqua contingere homini in solo spiritu, et non in corpore; hoc est imaginarie seu spiritualiter, et non re vera seu corporaliter. Hoc bene probat canon, nec eo amplius probare potuit; quare nec amplius probare voluisse credendus est, nisi quis auctorem canonis supini stuporis velit accusare. Omnes enim norunt exempla particularia, non nisi de aliquibus, et non de cunctis probare; ex particularibus enim universalis conclusio non deducitur. Esto contigerint ista Ezechieli, Ioanni, Paulo in spiritu: ergone nihil aliis contigit in corpore? Ergo quae de Christo et Habacuquo legimus, illis in solo spiritu contigerunt? Quis hoc affirmans, non ad Anticyras relegetur? Audent tamen Ponzinibus, Alciatus, Duarenus ac similes, qui ea affirmant, unde hoc quod diximus necessario consequitur. In Pseudo Augustino aliter ista leguntur, nempe: “cum Ezechiel et alii Prophetae, Ioannes Evangelista etiam et Apostoli in spiritu non in corpore visiones viderint.” Quibus verbis de Prophetis et Apostolis videtur voluisse universim id affirmare, ut consecutio efficacior redderetur; si hoc voluit, et non quod canon tantum: vide mendacium audax. Quis credat talia vel B. Damaso, vel D. Augustino in mentem venire potuisse? Nulli Prophetae, nulline Apostoli vere et corporaliter ullas visiones viderunt? Dormiebat Princeps Apostolorum, quando excitatus Angelum vidit, et ab eo deductus ex carcere, solutis cathenis, liberatus fuit? Act. 12, v. 7 et 8: Somniabat Christus Dominus quando a Satana super templi pinnaculum; et supra montem excelsum translatus? Matth. 4: Somniabat Abacuc quando ab Angelo a Iudaea translatus in Babylonem, et Daniel in somnis cibum comedit in leonum lacu? Daniel. 14, v. 35: Condemnent etiam isti Canonis Ancyrani suppletores, omnes illos Patres Doctissimos et sanctissimos, qui corporali visione in specie aliqua visibili contendunt, ab Eiaia., cap. 6, Domini gloriam visam: D. Greg. Nissenum Orat. 6. de beatitudin., D. Chrysostom. in d. cap. 6 et Hom. 4. de incomprehensib. Dei natura, et in Ioan. Hom. 14, D. Cyrillum

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Here are the examples from Holy Scripture whereby the canon proves that sometimes some things happen to a human being in spirit only and not physically—that is, in his imagination, or spiritually, and not in reality, or physically. The canon proves this well and could not have proved it further, and so, unless one is willing to accuse the author of the canon of careless stupidity, one must believe he did not want to prove it further. Everyone knows that particular examples prove some things, but not all of them, because one does not deduce a universal conclusion from particular examples. Granted that these things happened to Ezechiel, John, and Paul in spirit, does that mean nothing has happened to others in the flesh? So, did what we read about Christ and Habakkuk happen to them only in spirit? Won’t anyone who maintains this be sent to the Anticyras?209 [Gianfrancesco] Ponzinibio, [Andrea] Alciato, [François] Douaren, and people such as these who do say so are rash enough to insist upon it, and in consequence what I have said necessarily follows. In pseudoAugustine one reads a different version, namely, ‘Although Ezechiel and other prophets, and John the Evangelist and the Apostles did not see their visions while they were in the body.’ With these words about the prophets and the Apostles he seems to have wanted to make a statement which would be universally true so that he could make his conclusion more effectual. If he did want this and did not simply want what the canon was saying, notice his daring falsehood. Who believes that such an idea could have occurred to St Damasus or St Augustine? Did none of the prophets and none of the Apostles see any of their visions in reality and in the flesh? Was the leader of the Apostles asleep when he was woken up and saw an angel, and when the angel struck off his chains, brought him out of prison, and set him free? (Acts 2.7 and 8). Was Christ our Lord dreaming when Satan carried Him to the pinnacle of the Temple and the top of a very high mountain? (Matthew 4.[5 and 8]). Was Habakkuk dreaming when an angel carried him from Judaea to Babylon, and was Daniel asleep when he ate food in the lions’ den? (Daniel 14.25).210 Let these people who add to the canon of Ancyra also condemn all those very learned and very holy Fathers [of the Church] who reach a physical vision in some form they can see: the glory of the Lord seen by Isaiah, chapter 6; St Gregory of Nyssa, homily 6 on the beatitudes; St [John] Chrysostom, op.cit. supra, chapter 6, homily 4 on the incomprehensible nature of God, and homily 14 on John; St Cyril of Alexandria,

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There were various places called ‘Anticyra’ in the ancient world. The name was associated with the plant hellebore which was used in the treatment of madness. This is the wrong verse. Verse 25 talks about feeding a mixture of pitch, fat, and hair to a snake. Daniel eats in verse 38 when Habakkuk brings him food.

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Alexandri., lib. 1, in Ioan. cap. 22 et horum sequaces Euthym. ac Theophilac. in 1. cap. Ian., Damnent D. Irenaeum lib. 4, cap. 37, Chrys. d. Hom. 14, et Theodoret. in Dialo. Immutabilis, sic accipientes illud Oseae 2, v. 10: “Visiones multiplicavi, et in manu prophetarum assimilatus sum.” Falsus ergo potius ille auctor negans universim. Pressius noster de tribus tantum, de quibus tamen ipsis hoc non admodum certum vel necessarium. Ezechiel tantum asserit: “assumpsit me spiritus,” cap. 3, v. 12 et 14. | Item: “spiritus quoque levavit me, et assumpsit me,” cap. 11, v. 1. Sed non additur imaginarie, an cum corpore ut Abacukum. Quid quod probabilior, immo forte sola vera interpretatio est, spiritum illic vocari Angelum, et dici prophetam in corpore, et quidem cunctantem ab Angelo translatum de loco ad locum, nempe a fluvio Chobar in suburbia Babylonis ubi Iudaei de transimigratione degebant: d. v. 12 et v. 14; et postea inde Hierosolymam: d. cap. 11, v. 1; quae interpretatio melior est, tum quia magis amica contextui, tum quia probata D. Hieronymo his verbis: “Transferturque propheta non, ut quidam existimant in spiritu, sed in corpore, quod et de Abacuc, iuxta Theodotionem legimus.” Assentitur Theodoretus, sed et Polychronius, et alius Scholiastes Graecus in cathena, quibus tutius assentiare, quam Rabbinizantibus, qui exponunt visum sibi vehementi vento rapi. Apocalypsis scriptor B. Ioannes fatetur se “in spiritu fuisse,” c. 1, v. 10, non etenim credendus est in somnis vidisse quae narrat, sed vigil in exstasim raptus; atque ita illa, quae praesentia non erant, sed futura, corporaliter non vidit, sed in spiritu; ut recte Ambr. Haymon, et alii eo loco interpretantur. Quare non satis apte adversarii ex hac D. Ioan. revelatione colligunt, maleficis omnia quae fatentur in somnis contingere, neque hoc canon ex isto B. Ioan. exemplo voluit,

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Commentary on John Book 1, chapter 22; their followers Euthymius [Zigabenos] and Theophylact [of Ohrid] on John. Let them condemn St Irenaeus Book 4, chapter 37; Chrysostom homily 14; and Theodoret [of Cyrrhus] in his dialogue on the immutability of God, while they listen to Hosea 12.10: ‘I have multiplied visions and, by the hand of the prophets, I became like them.’ So, in fact, the author I mentioned is being deceitful when he denies the entire possibility [of physical visions]. Our man speaks more plainly about only three, although it is not very clear or incontrovertible which three he is talking about. Ezechiel simply says, ‘the spirit received me,’ (chapter 3, verses 12 and 14), and likewise, ‘the spirit also lifted me up and received me,’ (chapter 11, verse 1). But there is no addition of ‘in imagination’ or ‘bodily’, as there is in Habakkuk.211 The more likely, indeed perhaps the only, accurate interpretation is that an angel is summoned there as a spirit and that the prophet is said to be ‘in his body’, and while he was unsure what was going on, he was transported by the angel from one place to another, that is, from the River Chobar to the outskirts of Babylon where the Jews were living after they had been carried away, (verses 12 and 14), and later on [he was taken] from there to Jerusalem, (chapter 11, verse 1). This is a better interpretation because it is more in accord with the context and also because St Jerome proves it when he says, ‘The prophet is not transported, as a number of people think, in spirit, but bodily, and this is what we read about Habakkuk according to Theodotion.’ Theodoret agrees, but so do Polychronius212 and another Greek commentator in their [Biblical] catenas, and it is safer to agree with them than it is with Rabbinisers who put forward the idea that he was swept away by a strong wind. The writer of the Apocalypse, St John, says he ‘was in the spirit,’ (1.10). He should certainly not be understood as having seen what he talks about while he was asleep. He was wide awake and was snatched away into an ecstatic trance and, while in this state, saw things which were not happening in the present moment but in the future, seeing them in the spirit, not in the flesh, as St Ambrose, Haimo [of Auxerre], and others correctly interpret this passage. Consequently, my opponents do not draw a satisfactory inference from St John’s revelation when they say that everything workers of harmful magic confess happens to them while they are asleep. The canon did not intend, and could

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What is here given as chapter 11, verse 1 is actually 3.14. Chapter 11.1 actually says, ‘et elevavit me spiritus,’ ‘and the spirit lifted me up.’ Daniel 14.33–36 describes how an angel lifted Habakkuk by his hair and carried him to Babylon. Del Río’s ‘bodily’ is therefore justified by the text. ‘In imagination’, however, is not there, even by implication. Polychronius (died c.430) was Bishop of Apamea. He wrote commentaries on Job, Daniel, and Ezechiel.

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vel potuit probare. Tertium illud de B. Paulo, non contra nos, sed in seipsos, plus habet difficultatis. Verba sunt 2 Cor. i 2, v. 14: “Novi nominem in Christo ante annos quatuordecim (sive in corpore, nescio, sive extra corpus, nescio. Deus scit) raptum huiusmodi usque ad tertium caelum. Et scio huiusmodi hominem, sive in corpore, sive extra corpus, nescio, Deus scit. Quoniam raptus est in paradisum, et audivit arcana verba, quae non licet homini loqui.” In hoc toto testimonio non aliud potest canonis instituto accommodari, quam audaces nimium fuisse has mulierculas, quae non formidarent de suis visionibus certi aliquid definire; nempe se tunc certo corporalibus sensibus ea percepisse, cum tamen Apostolus neutram de sua visione partem audeat affirmare, sed dubius maneat an in corpore, an extra corpus fuerit raptus. Verum hic (quaeso Lector) attende primo, quam id pro adversariis nihil habeat momenti. Quid enim? Divus Paulus non audet profiteri, an tum fuerit in corpore, an extra corpus? Ita sane loquitur. Non igitur potuit mulierculis illis constare, an et ipsae tum, quando putabant se cum Diana equitare, fuerint in corpore. Haec enim tota vis argumenti est. Respondeo primum id non sequi. Non quia conferendae ullo modo sapientia vel sollertia haec vasa ad ignominiam cum vase electionis (absit talis blasphemia), sed quia res valde dissimilis est. Habuerunt enim istae mulierculae, non solum unde possent, sed unde deberent intelligere, spiritu tantum et imaginariae haec se passas; rei videlicet impossibilitatem, ut dixi; quam quia delusae non intelligebant, nec veritatem docentibus auscultabant, merito canon eas damnavit. Apostolus autem nihil habuit cur se deberet in alterutram partem resolvere. Contra solet nostri aevi strigibus accidere, quibus plurima suppetunt indicia, unde queant et debeant intelligere se in facto non delusas, et corporaliter se, quae asserunt, egisse; quae hoc eodem libro, et hac sectione copiose sum prosecutus. Unde iam constat

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not have intended, to prove this by means of its example of St John. Thirdly, the passage from St Paul does not pose a difficulty for me, but for them. It comes from 2 Corinthians 12.14:213 ‘I know someone like this who was snatched away into the third heaven fourteen years ago, (whether in his body or out of his body I do not know: God knows.) I do know that someone like this, (whether in his body or out of his body, I do not know: God knows), was snatched away into Paradise and heard secret words which a human being is not allowed to speak.’ One cannot interpret anything in the whole of this testimony, in relation to the meaning of the canon, in any way except to say that these silly women were remarkably presumptuous when they were not afraid to attribute a degree of certainty to their visions and say that there was no doubt they had seen these things at that time with their physical senses. The Apostle, however, was not rash enough to come down on one side or the other in connection with his vision but remained in doubt whether he had been snatched away in his body or outwith it. At this point, Reader, please note first that this does nothing at all to help my opponents. Why is that? Does St Paul not dare say specifically whether he was then in his body or outwith it? This is certainly what he was saying. The silly women, therefore, could not have known for sure whether they were in their body when they thought they were riding with Diana. Herein, you see, lies the whole force of the argument. My answer is, first, that this does not follow, not because these vessels fit for disgrace should be compared at all in good sense and cleverness with the chosen vessel, (save us from such a kind of blasphemy!), but because the situation is entirely different.214 These silly women not only had the ability but also the obligation to understand that they had experienced these things simply in their spirit and fancy—in other words, that the situation could not actually have happened, (as I have said), and the canon condemned them because they were deluded and did not understand this and did not listen to those who were telling them the truth. There was, however, no reason at all the Apostle should be obliged to resolve the question one way or another. By contrast, it is usually the case with the witches [strigibus] of our day and age that they have a good many pieces of evidence from which they can, and should, understand that they have not been deluded in relation to what they have done—which is what I have argued at length in this Book and in this section. Consequently, there is now general agreement that one cannot look to

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This looks like a printer’s error. The reference should be 2 Corinthians 12.2–4. ‘Chosen vessel’ refers to St Paul. See Acts 9.15: ‘The Lord said to [Ananias], Go, because he [St Paul] is my chosen vessel to bring my name before the heathen.’

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nec ab illis Dianae comitibus ad nostras striges validum fatis argumentum peti, quod fusius ostendam § se|quenti; nec D. Paulli exemplum istud plus probare, quam non semper visiones istas in corpore simul et spiritu accidere. Attende secundo eos qui ex hoc vers. 14 colligunt id quod adversarii nostri contendunt, cogi dicere illud: in corpore, vel extra corpus, sic accipiendum, quasi neget se scire an visio illa rapta et vera apparitione, an imaginaria tantum contigerit. Qui sensus est a canonis mente nisi manifestum errorem canoni adscribas plane alienus; sequeretur enim nescivisse B. Paullum an vere in tertium coelum et in Paradisum captus fuerit, corpore et anima simul sicut Abacuc in Babylonem; an vero secundum spiritum tantum, sicut B. Ioannes in Pathmos existens, quod dici nequit, quia B. Paulus scire poterat, corpus suum Damasci in terra mansisse, et hoc tenebatur credere sociis, qui eum deduxerant, et Iudae qui hospitio eum exceperat. Et hunc sensum accurate, et merito post D. Augustinum refellit D. Thomas, et ostendit esse sensum Iudaicum, a D. Hieronymo quoque explosum; veram autem sententiam verborum B. Pauli esse, quod ignoret; non an in exstasi hoc sibi acciderit (quod satis sciebat, et non fuisse corpus loco motum), sed an durante illa exstasi et visione, anima modo extraordinario miraculoso fuerit, divina quapiam operatione, ab ipso corpore separata; vel utrum anima manserit in corpore illud informans, alienata tamen a corporeorum sensuum functione. Sic ille 2. 2., q. 175, art. 6, et De verita. q. 16, art. 6 et in d. cap. 12, quo loco etiam D. Chrys. Hom. 28, Theophil. Haymon, Sedul., Caietan., Catarinus. Adverte tertio eos qui volunt hoc exemplo doceri animam D. Paulli extra corpus raptam, facere canonis auctorem temerarium, qui praesumat affirmare id de quo negat Apostolus sibi liquere; affingunt etiam canoni, quod nullomodo dixit. Denique qui hinc eliciunt non posse aliquem corporaliter per angelos deferri, dissentiunt a D. Paulo, nam putabat id fieri potuisse (secundum eorum

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those companions of Diana for a satisfactorily strong argument which is applicable to our witches, (as I shall point out at length in the next paragraph). Nor does the example of St Paul prove more than that these visions do not always take place in the flesh and in the spirit at one and the same time. Secondly, notice that those who infer what my opponents are arguing from this verse 14 [sic] are forced to say that the phrase ‘in the body or outwith the body’ must be interpreted in such a way that it appears to say that [St Paul] did not know whether the vision actually took place in reality or simply in his imagination. This sense is clearly different from the canon’s intention, (unless you ascribe a palpable error to the canon), because it would follow that St Paul did not know whether he had really been snatched up into the third heaven and Paradise in body and soul simultaneously, as Habakkuk had been when he was taken to Babylon, or whether it had happened to him only in the spirit, as was the case with St John while he was on Patmos. But one cannot say this, because St Paul was able to know that his body had remained on earth in Damascus, and he was obliged to believe the companions who had brought him there, and Judas who had given him hospitality. St Thomas [Aquinas], following St Augustine, accurately and properly disproves this interpretation and shows that it is a Jewish interpretation, which was also rejected by St Jerome, and that the true sense of St Paul’s words is that he did not know—not whether this was happening to him in an ecstatic trance, (because he was well aware that his body had not moved from the spot), but whether his soul, in some unusually miraculous fashion, as the result of an action by God, had been separated from his bodily senses as long as the ecstasy and vision lasted, or whether his soul had stayed where it was, informing the body, but separated from the working of its physical senses. (See St Thomas, [Summa] 2.2, question 175, article 6 and (on truth) question 16, article 6, and loc. cit. 12; and on this passage in St Paul, St [John] Chrysostom, homily 28, Theophilus, Haimo, Sedulius the Irishman, [Cardinal] Cajetan, and [Ambrogio] Catarino [Politi].)215 Notice, thirdly, that those who wish to understand from this example that St Paul’s soul was snatched outwith his body make the author of the canon rash enough to presume that what the Apostle denied saying was clear to him [the author], and they also add to the canon something which it did not say at all. Finally, those who draw the inference that no one can be carried physically by angels disagree with St Paul because, (according to their interpretation), 215

‘Haimo’ could be either Haimo of Auxerre (died c.865) or Haymo of Halberstadt (died 853). Both wrote commentaries on Holy Scripture. Sedulius Scotus, (floruit mid ninth century), wrote a commentary on the Epistles of St Paul. Ambrogio Catarino Politi, (1484–1553), was a Dominican theologian and a prolific author.

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interpretationem) alioqui non dubitasset, sed aperte pronuntiasset se extra corpus raptum, si in corpore credidisset se rapi non potuisse. Quomodocumque tamen has tres Ezechielis, B. Ioannis et B. Pauli exstases interpreteris; inde nec consequetur mulierculas illas nequivisse a daemone corporaliter transferri, quia a non esse factum, ad non posse fieri, invalidum est argumentum; nec etiam consequetur, quia sic tribus illis contigerit; similiter, non aliter mulierculis istis contigisse; multo minus consequetur, sic semper et ubique omnibus contingere; sed dumtaxat consequetur, decipi illas mulierculas potuisse, quia haec illis non corporaliter, sed imaginarie dumtaxat contingere potuerunt. Sequitur in Canone: Omnibus itaque publice annunciandum est quod qui talia, et his similia credit, fidem perdit. Concludit istas mulierculas debere iudicari haereticas; de his enim, et qui qualia mulierculae istae credebant, credunt, haec accipienda. Nam adversarii qui haec verba ad omnes nostrarum strigum confessiones porrigunt, iniqui sunt inquisitoribus fidei, et nimis in maleficia liberales, et errant multimodis. Primo quia istud, qui talia credit, referunt absurdissime ad proxime praecedentia; praecessit autem proxime de Paulo, Ioanne et Ezechiele. Quaero igitur: an fidem perdit qui haec ita credit contigisse illis, ut canon refert? Manifesta quidem haec foret ipsius canonis contractictio, et (ut scho|lae loquuntur) implicantia in adiecto. An ergo volunt fidem perdere, qui non credit his tribus ista contigisse, sicut canon asserit, hoc est contendit haec ilis non tantum imaginatione, sed etiam in corpore contigisse. Sed tunc iste sensus non apte cohaereret cum praecedentibus, et dicendum fuisset: Quod qui talia non credit. Deinde hoc non foret verum. Nam etsi aliquis diceret B. Paulum in corpore raptum, non perderet idcirco fidem, sed temerarius tantum esset qui assereret, quod Paulus se professus nescire. Qui diceret Ezechielem corporaliter translatum, contra communiorem recentiorum sententiam loqueretur, sed fidem non perderet, quia probabiliorem veterum Patrum sententiam sequeretur, et alias canon Divum Hieronymum, Theodoretum, Polychronium, et Graecos alios ex eo capite solo haereticos pronuntiaret, quod non est ferendum. Non igitur hic versiculus et decretum de haeresi pertinet ad ea quae velut

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Paul thought that this could have happened, otherwise he would not have had doubts about it but, had he believed he could not be snatched away physically, would have stated openly that he had been snatched out of his body. But however you interpret these three ecstasies of Ezechiel, St John, and St Paul, it will not follow therefrom that those silly women could not have been transported physically by an evil spirit, because to go from ‘it did not happen’ to ‘it cannot happen’ is not a valid way of arguing. Nor will it follow that, because it happened this way in these three cases, it happened in a similar way and not differently in the case of these silly women. Much less will it follow that it happens this way everywhere and to everybody. It will merely follow that those silly women could have been deceived, because these things could have happened to them not physically but merely in their imaginations. The canon goes on, ‘Therefore it should be proclaimed publicly to everyone that the person who believes such things and things like them is throwing away his faith.’ The canon concludes by saying that these silly women ought to be put on trial as heretics; and so should those who believe the kind of thing these silly women believed, because objectors who apply these words to all the confessions made by modern witches are unfair to inquisitors of the Faith, far too generous towards acts of harmful magic, and wrong in many ways, first of all because they are ridiculous enough to apply the phrase ‘who believe such things’ to what is said immediately beforehand. Yet what is said immediately beforehand refers to St Paul, St John, and Ezechiel. So, my question is, is a person who believes that these things happened to those women, the way the canon says they did, throwing away his faith? It is perfectly obvious that this would be a contradiction of the canon and, as the Schools say, ‘an implication in terms’; or do they mean that someone who does not believe that these things happened to the three men I mentioned—that is, he maintains they happened just as the canon claims, not simply in their imagination, but also in the flesh? In that case, however, the sense has no proper connection with what goes before, and the phrase would have to say, ‘that anyone who does not believe such things.’ Secondly, it would not be true, because even if someone were to say that St Paul had been snatched up bodily, he would not be throwing away his faith by doing so. He would simply be rash, because St Paul said he did not know. If someone were to say that Ezechiel had been carried away physically, he would be going against the common opinion of more recent scholarship, but he would not be throwing away his faith, because he would be following the more likely opinion of the ancient Fathers [of the Church]. Otherwise, the canon would be proclaiming St Jerome, Theodoret, Polychronius, and other Greeks heretics on the strength of this passage alone—a notion which is insupportable. This line and its decree on heresy applies to things which the authors of

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argumentando canonis authores inserverunt, sed dumtaxat ad praecedentem canonis sanctionem, qua Sacerdotes iubebantur populum docere haec istarum muliercularum deliria (quae sunt commemorata) esse omnino falsa, et nata ex Diaboli delusione; et eos qui muliercularum affirmationi fidem adhiberent, a recta fide aberrare, et errore paganorum involvi. Sensus ergo qui talia credit qualia hae mulierculae Dianianae, de quibus canon agit. Hoc autem quod sequitur: Et his similia, non est referendum ad omnia quae mulierculae istae credebant, sed ad quaedam quae credebant, et erant vere haeretica. Primo, aliquid esse Numinis praeter verum Deum. Secundo, quod alteri quam uni Deo divinum honorem liceat exhibere. Tertio, quod talia suadens, aut ad talia hominem devehens sit bonus spiritus. Quarto, quod nequeant eis talia contingere imaginarie seu in solo spiritu. Quinto, quod possit ullus immediate, praeter solum Deum, subito vel sine rerum naturalium applicatione, speciem seu essentiam ullius creaturae, in aliam, commutare, vel vera creatione aliquid producere. Nam haec omnia eas credidisse partim expresse in canone habetur; partim non improbabiliter ex eo colligitur. Ad haec ergo talia et similia, hoc est haeretica, istud est referendum. Non potest autem referri ad caetera, in quibus decipiebantur quidem, non vero idcirco fidem perdebant: verbi gratia, primo, quod putabant de facto haec sibi vigilantibus accidere: nam hac in re delusae tantum erant, non haereticae; secundo, quod putabant veris se bestiis vehi; tertio veras bestias posse tam cito tam longa terrarum spacia traiicere, et per aerem volare, sine spiritualis intelligentiae opera; qui sunt errores contra philosophiam et rectam rationem, non contra fidem Catholicam; quarto quod opinabantur se convenire et discurrere cum multitudine mulierum et hominum aliorum, partim vivorum, partim mortuorum, quae tantum erat delusio, et non haeresis. Si vero credidissent se daemonum opera posse corporaliter deferri, etiam per aerem valde celeriter, successive tamen, et congruo activitati daemonis, et earum conditioni tempore; id nec erat hae-

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the canon introduced by way of proving what they were saying. But it applies only to the canon’s preceding ordinance, whereby priests were ordered to tell the people that those silly women’s insanities, (which I have mentioned), were entirely untrue and originated in a delusion by the Devil, and that those who had faith in what the silly women were claiming were straying from the correct faith and involving themselves in the error of heathens. So, the sense of ‘who believes such things’ refers to the kind of thing these silly followers of Diana believed, and the canon is dealing with those. But the following phrase, ‘and things like them’, should not be applied to everything those silly women believed, but to certain things they believed which were also actually heretical: (i) that there is some kind of divinity apart from the true God; (ii) that it is permissible to show divine honour to someone other than the one God; (iii) that it is a good spirit [spiritus] which advocates such things or brings someone to believe them; (iv) that such things cannot happen to them in their imagination or only in the spirit; (v) that anyone other than God alone can, without an intermediary, suddenly and without the application of natural things, change the appearance or essential being of any created thing into that of another, or produce anything by an act of genuine creation. This is because it is considered that these women believed all these things, partly because the canon expressly says so, and partly because one can, not improbably, make such an inference. Therefore, this should be applied to ‘this kind of thing’ and to ‘things like them’—that is, things which are heretical. But it certainly cannot be applied to every other way in which [the women] were being deceived, and this is not why they were throwing away their faith, (i) because, for example, they thought these things were actually happening to them while they were awake, and this means they were merely deluded, not heretical; (ii) because they thought they were being carried by real creatures; (iii) because they thought that genuine creatures can traverse such wide stretches of land so quickly and fly through the air without the operation of a spiritual Intelligence,216 (which are errors which fly in the face of natural philosophy and proper rationality, not the Catholic Faith); (iv) because they were of the opinion that they were meeting and racing around with a large number of women and other people, some of whom were alive, some of whom were dead, and this is merely delusion, not heresy. But had they believed they could be carried bodily through the air by the action of evil spirits—and very quickly, too, not gradually in successive stages—at a time suited to the activity of the evil spirit

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Incorporeal beings such as spirits or angels. Some were specifically associated with planetary influences. Others, as here, were thought of in a more general sense.

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reticum, nec deceptio; sed dubia dumtaxat quibusdam opinio, re autem vera probabilior, et tantum non de fide sententia. Igitur quod ad hanc translationem attinet, non deciditur quid Diabolus facere possit, sed quid de facto cum istis mulierculis egerit. Ex his iam perspicitis: quae hoc canone definiantur esse haeretica? Nempe quinque illa a me commemorata. Quorum, 1, 2, 3, et 5 etiam Tostatus Episcopus Abulens. postea citandus, Cardilis Turrecremata, ad d. cap. Episcopi, Silvester Sacri Palatii Mag. et alii observarunt; et quidem 1, 2 et 3 aperte satis colligitur ex iis quae iam in textu sunt explicata. Quintum vero fuit significatum obscurius, quando dixit super quasdam bestias, sed apertissime decidetur sequentibus canonis verbis. Equidem, Quartum addidi, videns aperte elici ex contextu, cum agit de exemplo revelationis B. Ioannis, nam S.S. satis aperte docet eam mere spiritualem fuisse, et ideo ex S.S. satis aperte convincitur aliquam visionem mere spiritalem esse posse. Nunc pergit quintam illam probare. Et qui fidem rectam in Domino non habet, hic non est eius, sed illius in quem credit, id est Diaboli. Nam de Domino nostro scriptum est: Omnia per ipsum facta sunt. Pergit ostendere has mulierculas fidem perdidisse. Quasi dicat: Dixi has miseras fidem perdidisse, quia nulla est fides, nisi quae recta fertur in Deum, ut in primum principium, et naturae auctorem ac Dominum totius creaturae. Qui ergo non habet huiusmodi rectam fidem (hoc est non erroneam, nec detortam aut divisam ad alia Numina) ille non est dei (ut legit Ivo et Burchard.), hoc est non pertinet ad deum: sed est Diaboli, cui se mancipavit, et ad quem pertinet, quia in eum credit. Nam ad eam confugit, post eum conversus; eo ipso quod credit illam esse creatorem huiusmodi bestiarum, quibus per aera transferantur. Haec enim opinatio eius contraria est S.S. attestanti; quaecumque creata sunt, per Dominum nostrum, et non per bonos vel malos angelos esse facta; et sine deo factum esse nihil, quod factum est. Cum itaque tam diserte hoc veritas Evangelica profiteatur, merito concludit. Quisquis ergo aliquid credit posse fieri, aut aliquam creaturam in melius aut in deterius immutari, aut transformari in aliam speciem aut similitudinem, nisi ab

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and the women’s own situation, this would not be either heretical or a deception, but simply some people’s uncertain opinion, (actually one quite likely to be true), and not merely an opinion concerning the Faith. Therefore, when it comes to this transportation, it is not settled why the Devil is able to do it, but why he actually did so in the case of these silly women. From these remarks do you now see that the things which are defined by the canon are heretical? This certainly applies to the five points I mentioned. Numbers 1, 2, 3, and 4 have been noted by [Alonso] Tostado, Bishop of Avila, (whom I shall cite later on), Cardinal [Juan de] Torquemada, commenting on the canon Episcopi, Silvestro [da Prierio], Master of the Sacred Palace, and others; and, indeed, one can clearly and satisfactorily deduce numbers 1, 2, and 3 from things in the text which I have already explained. When the fifth, however, said ‘on certain creatures’, it has been called somewhat obscure, but the following words of the canon will make it perfectly clear. I added the fourth, actually, because I saw that it was clearly elicited from the text when it deals with the example of St John’s revelation, because Holy Scripture quite clearly tells us that a vision can simply happen in the spirit. So now my task is to prove the fifth point. ‘He who does not have the correct faith in the Lord does not belong to God, but to him in whom he believes, that is, the Devil, because it has been written about our Lord, “Everything has been made by Him”, [John 1.3].’ My task is now to point out that these silly women had thrown away their faith, (as though the canon is saying, ‘I have said that these wretched women have thrown away their faith’), because there is no faith except for the correct one, which is directed towards God as the first beginning, the creator of Nature, and the Lord of every created thing. Therefore someone who does not have this kind of correct faith—that is, one which is not heretical or distorted or divided up between other divinities—‘does not belong to God’, (which is the reading of Ivo and Burchard), that is to say, is not God’s possession, but belongs to the Devil to whom he has enslaved himself and whose possession he is, because he directs his belief to him and takes refuge with him after he has become his convert, since he believes [the Devil] is the creator of the kind of creatures by whom people can be carried through the air. This ‘belief’ of his is contrary to the evidence of Holy Scripture, that whatever has been created has been made by our Lord and not by good or bad angels, and that without God nothing which has been made was made. Therefore, since the truth of the Gospel proclaims this so plainly, the canon quite rightly concludes, ‘Therefore whoever believes that anything can be made, or that any created thing can be changed into something better or something worse, or be transformed so that it looks like or resembles some other created thing, (unless it is done by the Creator

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ipso creatore, qui omnia fecit, et per quem omnia facta sunt; proculdubio infidelis est, et pagano deterior. En capitis totius anacephalaeosin, in qua recolligens author multos Paganorum errores, eos omnes aperte damnat; et subindicat mulieres illas sceleratas his omnibus assensum praebuisse. Nam alioquin haec nihil omnino ad praecedentia pertinerent. Putabant ergo Gentiles, primo, a suis numinibus, quae plurima et vanissima colebant, posse res aliquas de novo fieri seu creari; sic enim existimarunt a Neptuno equum, a Minerva productam oleam; quod esse haereticum patet, quia creare est infinitae potentiae, et ideo soli Deo competit, ut probarum ex initio Evangelii secundum Ioannem. Sed credere quod per applicationem activorum et passivorum, aut per alterationem qualitatum, modo naturali generationis, sive mutationis, quaedam ex subiecta materia, daemonum industria, gigni queant, non est haereticum, sed verissimum: ut docui lib. 2 Disquisition. Secundo, credebant posse a Pseudotheis suis homines et animantia in coelum transferri seu Deificari (quod homines vocabant Indigitari), quod Canon noster dicit mutari in melius. Sic illi coelum Diis, Semideis, Semonibus, Medioxumis, et Patellariis implerunt; quinetiam et aquilas et canes et corvos et asinos hoc honore dignati, quo nihil magis impium aut stolidius. Tertio, credebant posse ab il|lis bestias in viliora bruta, vel homines in bestias vere transformari; hoc noster canon vocat in deterius immutari, quibus narrationibus tota Nasonis Metamorphosis, et Divi Augustini, lib. 18 De civitate Dei redundant; quod etiam est plane erroneum. Sed erroneum non foret opinari imperfecta quaedam, ad eiusdem speciei perfectionem, naturae consentaneam, a daemonibus perduci, aut quae perfecta sunt, ab iisdem debilitari, aut viliora accidentarie (ut dici solet) reddi, ac effici posse; quod docet quotidiana experientia. Quarto, putabant illis Deificatis (ut sic loquar) animantibus, maiorem, quam cum in terris versabantur virtutem atque efficientiam inesse: qua de re multa Spineus Q. de strigibus, cap. 27 post. D. Thomam in lib. 12. Metaphysic. Quinto censebant haec fieri a bonis spiritibus, hoc est a Diis suis, quos non credebant esse cacodaemones. Quae quinque merito cuncta tam gravi censura notantur. Haec ergo subindicat omnia credidisse mulierculas illas primo posse a Diana vel Herodiade de novo fieri seu creari tales bestias; secundo, Herodiadem et Dianam factas Deas; tertio, posse ab illis homines, in quas vellent, bestias com-

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Himself who has made everything and by whose agency everything has been made), undoubtedly has no faith and is worse than a pagan.’ Here you have a summary of the whole chapter, in which the author collects together many of the pagans’ errors and clearly condemns all of them. He also hints that the criminal women he was talking about had given their consent to all of them, because otherwise these points would have no relevance at all to those which precede them. So pagans used to think (i) that the very large number of worthless divinities they used to worship could make or create something afresh—they had the idea, for example, that the horse was created by Neptune and that oil was produced by Minerva—which is obviously heretical, since the act of creating belongs to unlimited power and therefore belongs to God alone, as is proved by the beginning of the Gospel according to St John. But believing that certain things can be produced out of material which is subject to the activity of evil spirits, by the application of actives and passives, or by changing their properties by the natural method of generation or alteration, is not heretical but entirely true, as I said in Book 2 of the Investigations. (ii) They used to believe that human beings and living creatures can be carried up to Heaven or turned into gods—‘invoked as deities’, as people used to call it—by their pseudo-gods, which is what our canon means when it says, ‘changed into something better.’ This is how [the ancients] filled up Heaven with gods, demi-gods, crop-gods, sea-gods, and platter-gods. Indeed, they deemed eagles, dogs, crows, and donkeys worthy of this honour, and nothing is more irreligious or coarsely stupid than that. (iii) They used to believe that animals can genuinely be transformed into baser animals or humans into animals. This our canon calls ‘changed into something worse.’ (The whole of Ovid’s Metamorphoses and Book 18 of St Augustine’s City of God overflow with these stories.) This [belief], too, is clearly heretical. But it would not be heretical to think that evil spirits bring certain imperfect things to a perfection of their own kind which is in conformity with their nature, or that they cripple perfect things in respect of their accidentals, (which is the usual way of putting it), or render them more worthless, as daily experience tells us. (iv) They used to think that those beings who had been ‘deified’, (to use their term), had greater power and efficacy than when they were living on earth. ([Bartolomeo della] Spina has a lot to say on this subject in chapter 27 of his book on witches. He is following Book 12 of St Thomas [Aquinas’s] Metaphysics.) (v) They used to think that these things were done by good spirits, that is, by their gods whom they did not believe were evil spirits. All these five points are quite rightly subject to severe censure. The canon hints that those silly women believed all of them—first, that Diana or Herodias could make or create such creatures anew; secondly, that Herodias and

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mutari, ut de Circe gentiles crediderunt; quarto, bestias hasce, quasi Deificatas, posse per aerem volare, et minimo tempore ingentia terrarum spacia permeare, quod eiusdem speciei bestiae adhuc terrenae non valerent; quinto, haec se obtinere beneficio bonorum spirituum (quales putabant Dianam et Herodiadem) existimabant. Hinc patet, ad quam et qualem credulitatem haec canonis ultima verba sint referenda. Duo hic quaeri possunt: primo cur hoc versiculo solum mentio facta primi et secundi membri; hoc est creationis et transformationis? Secundo, cur dicatur Pagano deterior qui credit idem quod Paganus? Ad 1 resp.: quia capitis huius intentio praecipua fuit ostendere quod hae mulierculae incidant in idololatriam, et apostasiam, quia omnia illa capita errorum fidei, pluralitatem Deorum introducunt, et quoddam inferunt a Deo ad Daemones transfugium; nihil vero apertius praesupponit Deorum pluralitatem, quam primus ille et secundus error. Ad 2 resp.: quia loquitur de iis qui semel baptismo illuminati fuerunt, et ab eo apostatarunt, ut patet ex cap. initio. Nam finis capitis ipsi principio respondet, quia tales derelicto creatore suo, Diaboli suffragia quaerunt. Quod subsequitur in contextu: Nonnulli inveniuntur qui interno livore permoti, in perniciem suorum inimicorum altaria, etc. Haec iam sunt parerga, et constat verba esse Gratiani, nec enim habentur in Burchardo, nec in Ivone, nec in Pseudo Augustino; et eorum summa de sumpta fuit ex cap. 13 eiusdem q. 5, quae de alia specie facti agit. Secutus sum in hac interpretatione praecipue Tosta. in cap. 4 Mattaei, Torquemadam, supra et alios quos recentiorum plerique sequuntur. iii § An hic canon aliquid ad hodiernas striges pertineat, aut ad eas sit extendendus? Contendunt id Alciat., Ponxinibius, Duarenus, et Wierus, et alii pauci; nituntur argumentis hisce. Primo in cap. Episcopi dicitur eas nocturnis horis cum Diana aut Herodiade super bestias equitasse; convenisse statis tempo-

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Diana had become goddesses; thirdly, that they could change human beings into any kind of animal they wanted, as the pagans believed Circe did; fourthly, that these animals could fly through the air as though they had become divine, and traverse enormous stretches of land in a very short time, something which animals belonging to the same kind cannot do because they are still earthbound; fifthly, they used to think they obtained these things from the kindness of good spirits (which they thought Diana and Herodias were.) Hence it is clear to what credulousness, and to what kind of credulousness, the final words of the canon should be applied. At this point one can ask two questions: (1) why has mention of the first and second stages, that is, creation and transformation, been made only this this passage? (2) Why can someone who believes the same thing as a pagan be called ‘worse than a pagan’? To the first my answer is that the particular intention of this chapter217 was to show that these silly women fall into idolatry and apostasy, because all those sections about errors of faith introduce a plurality of gods and imply a flight from God to evil spirits. But nothing more clearly presupposes a plurality of gods than the first and second error. To the second my answer is that it is speaking about those who were once given light by baptism and have apostasised from it, as is clear from the beginning of the section, because the end of the section answers what is said at the start of it—that such people abandon their Creator and seek the Devil’s approval. The text goes on, ‘One finds several people who, prompted by inward spite, [strip the altars of their sacred coverings] in order to bring destruction upon their enemies.’ These words are now ornamental irrelevancies, and it is generally agreed that they are Gratian’s own words because [the sentence] is not found in Burchard or in Ivo or in pseudo-Augustine, and that the whole thing has been lifted from chapter 13 of the same work, question 5, which deals with a different kind of activity. (In this interpretation I have especially followed [Alonso] Tostado’s commentary on Matthew chapter 4, [Juan de] Torquemada, op.cit. supra, and others, most of whom follow more recent authors.) Paragraph 3. ‘Is this canon relevant at all to the witches [striges] of today, or should it be extended to include them?’ [Andrea] Alciato, [Gianfrancesco] Ponzinibio, [François] Douaren, as well as [Johann] Weyer and others, object to this. They rely on the following arguments. (1) In the canon Episcopi it is said that these women rode on creatures with Diana and Herodias during the hours of night, that they met at fixed times, and that during their meeting they

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Del Río is referring to Gratian’s Decretum, Part 2, chapter 12 which contains his text of the canon.

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ribus, et inconventu praesidi conventus obtemperasse, quae cuncta nostris Lamiis conveniant, ut videtur sensisse Martinus Navarrus. Secundo, in vers. omnibus dicitur | quod qui talia et his similia credunt, etc. Lamiae vero credunt his similia. Tertio, Lamiae credunt se transformari in cattos, canes, anseres et alia bruta; quod hic in ult. vers. damnatur. Quarto, sic videtur canonem accepisse Burchardus, nam lib. 19, cap. De arte Magica, vers. ultim., haec scribit: “credidisti ut aliqua foemina sit, quae hoc faceret possit, quod quaedam a Diabolo deceptae se affirmant necessario et ex praecepto facere; id est cum daemonum turba in similitudine mulierum transformata (quam vulgaris stultitia holdam vocat) certis noctibus equitare debere super bestias, et in eodem se consortio annumeratam esse? Si particeps fuisti istius incredulitatis, annum unum per legitimas ferias poenitere debes.” Quibus verbis videtur expresse respicere ad nostrum cap. Episcopi, et illud sui temporis strigibus accommodare. Quinto, illae mulierculae dicuntur illusae, sed et Lamiae similia narrant. Similiter ergo ex illo capite credendae sunt a daemone delusae talia confiteri. Verumtamen communis opinio Theologorum et Iurisconsultorum est capitulum Epicopi, ad Lamias nostras non pertinere, tenent hoc Abulens., Turrecremata et alii mox citandi, et sic passim Romae, in Italia, Hispania, Gallia, Germania, fidei inquisitores a sede Apostolica deputati et confirmati, et Iudices saeculares, qui iustiores et doctiores, unanimiter practicant, ut non obstante isto capitulo Lamiarum confessionibus credunt, et contra easdem ad mortis usque supplicium procedunt. Quod a me multis probatum, lib. 2, q. 16 et fusius lib. 5, hac sect. 16. Dico igitur sententiam extendentium hunc canonem ad Lamias nostras primo Lamiis ipsis infructuosam esse; deinde perniciosam Ecclesiae et reipub.; tertio, periculosam assertoribus; quarto rationi et veritati parum consentaneam. Probo

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obeyed the person who presided over it. All this fits our witches [lamiis], as Martín de Azpilcueta realised. (2) In the canon it is said that [it must be proclaimed publicly] ‘to everyone’ that the person who believes such things and things like them [is throwing away his faith]. Witches, however, believe things similar to this. (3) Witches believe they are transformed into cats, dogs, geese, and other animals. This is condemned in the last part of this passage. (4) Burchard seems to have accepted the canon, because in the last paragraph of Book 19, chapter of his book on the practice of magic, he writes as follows. ‘You have believed that there is some woman who can do this, because a number of women who have been deceived by the Devil claim that they do it because they have to, and because they have been told to do so: that is, they have to ride on animals on certain nights with a mob of evil spirits who have changed their appearance to that of women. (Popular idiocy calls this mob ‘Holda’.)218 This mob has been accounted part of the same fellowship. If you have been caught up in this incredible [nonsense], you must do penance for one year on the legal feast-days.’ By these words he seems expressly to have in mind our canon Episcopi, and to be applying it to the witches of his own day. (5) Those silly women are said to have been deluded. But witches also say the same kind of thing and therefore, in accordance with that chapter, should be believed when they confess they have done such things because they were deluded by an evil spirit. Nevertheless, the common opinion of theologians and legal experts is that the chapter of [the canon] Episcopi does not apply to modern witches. [Alonso] Tostado, [Juan de] Torquemada, and others whom I shall cite in a moment, are of this opinion, and in many different places in Rome, Italy, Spain, France, and Germany, inquisitors of the Faith, deputed and confirmed [in office] by the Apostolic See, and the more upright and learned secular judges, unanimously practise [the law] along these lines since, notwithstanding this chapter, they believe witches’ confessions and proceed against them as far as sentencing them to death, as I have proved with many examples, in Book 2, question 16 and, at greater length, in this section 16 of Book 5. I am saying, therefore, that the opinion of those who extend this canon to apply to modern witches is (a) useless to the witches themselves, (b) baleful for Church and state, (c) dangerous to those who make the claim, and (d) that it

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‘Holda’ was the name of a Germanic earth-goddess and seems to have been associated with processions of the dead. ‘Holden’ refers to a kind of benevolent spirit night-rider, and ‘unholden’ to the malevolent kind.

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singula. Primo est infructuosa Lamiis, quia per eam non eripiuntur supplicio; nam adhuc ex d. cap. Episcopi, haereseos convincerentur; quoniam cap. Episcopi tales mulierculas definiret esse infideles, et a Deo ad suffragia daemonum desciscere. Et recte definit, quia licet delusae fuissent in somnis, tamen (ut optime ratiocinatur Nicol. Iaquerius Flagelli fascinarior., cap. ult.), postquam evigilarunt recordantes eorum, quae in somnis egerant, putantes ea vere et corporaliter a se gesta; ratificant pactum et cultum daemoni exhibitum, et sollicite sibi cavent ab iis quae in somnis daemon prohibuit, et omnia sedulo exsequuntur, quae iussit facere. Fovent etiam pertinaciter voluntatem ad similes conventus revertendi, et faciendi quaecumque arbitrantur se illic commisisse sacrilegia, Sodomiam, incaestus, infanticidia, idolatriam etc., profitentur saepe coram complicibus, etiam in iudicio se haec nolle deserere. Quare sunt haereticae et apostatae censendae, licet haec nequam voluntas et opinio ex delusione nasceretur. Ad cultum enim et exercitium haereticae pravitatis sufficit, libere in eam consentire, et eam acceptare. Sicut si aliquis Catholicus somniasset se audire aliquem docentem vel concionantem: non esse Purgatorium; postea vero vigilans putaret se vigilantem haec audivisse, et memor eorum quae somniarat argumentorum, huic haereticae propositioni fidem ac consensum praeberet, et animo, dictisque eam foveret; talis dubio procul haberetur et esset verus haereticus, et ut talis puniri deberet. Item sicut qui (est comparatio Bernard. Cumani Lucernae, num. 9) in somnis passus est illusionem, quia somniabat sibi rem esse cum aliena uxore, si | postea memor somnii complacet sibi de tali actu propter delectationem quam inde sibi visus percipere ex spolio thalami alieni, licet non peccet ratione somnii, qua somnium fuit (quia iudicium rationis tum ligatum erat, et ideo tum peccare non potuit) mortale tamen adulterii peccatum sibi consciscit ratione complacentiae subsecutae, et consensus pleni in vigilia praestiti. Nam recte D. Augustinus: delectari falso crimine verum est crimen.

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has little to do with reason and truth. My proof of these individual points is as follows. First: ‘useless in relation to the witches.’ This is because they will not escape punishment because of it. Following the canon Episcopi one would still convict these silly women of heresy, since the canon defined them as women who have turned infidel and withdrawn from God in favour of getting approbation from evil spirits. This is a correct definition, because even if the women had been deluded while they were asleep nevertheless, (as Nicolas Jacquier reasons very well in the final chapter of his Scourge of Heretics Who Cast the Evil Eye), after they have woken up they remember what they had been doing while they were asleep, think they had been doing it physically in reality, confirm their pact with and worship of evil spirits, carefully avoid doing things the evil spirit has told them not to do while they were asleep, and sedulously carry out everything he has ordered them to do. They are also persistent in their enthusiasm to return willingly to this kind of meeting with him, and in doing whatever they think they have done while in that state—acts of sacrilege, sodomy, incest, idolatry, and so forth. They often confess to these in the presence of their accomplices and are even unwilling during their trial to deny doing them. Consequently, they should be considered heretics and apostates, even though this wicked notion and willingness [to do evil] might have its origins in delusion, because it is sufficient for them to consent willingly to the cultivation and exercise of heretical perverseness, and to accept it, [to be deemed heretics and apostates]. It is just as though some Catholic were to dream he heard someone teach or publicly declare that Purgatory does not exist and then, upon waking, think he had heard this while he was awake, remember the arguments he had dreamed, believe and give consent to this heretical proposition, cherish it in his bosom, and eagerly tell others about it. Such a person would, without a shadow of a doubt, be considered, and would actually be, a heretic and ought to be punished as such. Likewise, suppose there is someone who is asleep—the comparison is that of Bernard of Como, Lantern [of Inquisitors], number 4—and has undergone in a dream the illusion that he was having sex with someone else’s wife. If later on he remembers the dream and is happy about having done the deed because of the pleasure it gave him to despoil someone else’s marriage-bed, even though he has not committed the sin because he was dreaming, in as much as it was a dream and his rational judgement was bound up [in sleep] at the time and therefore he could not then have committed the sin, but because he approves of the mortal sin of adultery, [as evidenced] by the subsequent pleasure he takes in it and his giving his full consent to it in a state of wakefulness. St Augustine correctly says that taking pleasure in a spurious crime is a genuine crime.

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Deinde quis ignorat, has vigiles multa conari, ad hoc crimen; et conatus, qui ad cogitationem accessit, poenam in atrocioribus criminibus merito exigi? Lib. quisquis C. ad leg. Iul. Maiest. lib. si quis non dicam rapere C. de Episcop. et cleri., lib. unic. C. si qua praeditus potest., lib. 1 D. de extraordin. crimin., lib. 1 D. ad leg. Pomp. de parrid., lib. fugitivus. D. de verb. signif. Quis ignorat fautores et conscios eadem poena cum maleficis puniendos? Lib. 1 § occisorum D. ad S.C. Syllan., lib. utrum D. ad leg. Pomp. de parricid. § alia. de publi. iudic. Denique patet in d. cap. Episcopi non obstante delusione haereticas declarari, quia dicit sceleratas et retro post Satanam conversas, quod est esse apostatas a fide dicit, alios secum ad infidelitatis interitum traxisse (quod est dogmantizantium) a recta fide deviasse, fidem perdidisse, in errorem Paganorum devolvi, Diaboli esse non Dei, et Paganis esse deteriores. Si ergo capitulum istud pertineret ad striges, deberent ergo adhuc hodie striges tractari, ut haereticae et a fide apostatantes. Quem igitur fructum ex hoc cap. percipiunt, quod illas tam clare haereticas pronunciat, et proinde subdit poenis haereticorum. Secundum, quod haec sententia sit perniciosa reipub. et Ecclesiae, clarius probatur, quia strigum defensores conantur per hoc capitulum obtinere, ne Lamiae interficiantur, ut patet ex Ponzinibii, Wieri et aliorum scriptis; et docet quotidiana experientia impunitas isto praetextu, vel minus quam oportet punitas dimitti; nec fidei Inquisitores inter Catholicos ullum maius impedimentum experiuntur, quam Legitas quosdam et rabulas hac falsa imbutos opinione ab hoc canone definiri, haec cuncta esse illusoria nec gravem mereri poenam. Quaeruntur de hac re scriptores fere omnes, ex Protestantibus Mollerus Comment. in consuetudin. Saxon. et Bodinus in Daemonoman.; ex Catholicis viri pii et docti Remig. in Daemonolatr., Ludou. Richaume noster lib. Trium discursum, Pet. le Loyther, lib. 2 De spectris., Crespetus lib. De odio Satanae. 1 discurs. 3, ubi testatur iam Francisci i tempore in Francia delatum numerum maiorem

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Next point: who does not know that when these women are awake, they attempt many things in regard to this crime, and anyone who thinks about it [knows] that their attempts quite rightly demand they suffer the punishment meted out in the case of the more dreadful type of crime? Read [Justinian’s] Codex, Lex Julia on treason, ‘anyone’ [= 9.8.5]; Codex on bishops and clerics, ‘if anyone has dared to seize’ [= 1.3.5]; Codex ‘if in some way someone in authority can’; Codex ‘on an extraordinary crime’; Digest on the Lex Pompeia on parricide [= 48.9.0]; ‘fugitive’ in Digest, on the meaning of words [=50.16.0]. Who does not know that their supporters and accomplices should be punished with the same penalty as the workers of harmful magic? (‘[by the name] of those who have been murdered’, Digest, the Silanian decision of the Senate, [= 29.5.1.17]; ‘whether’, Digest, Lex Pompeia on parricide, that is, section ‘public trials’, [= 48.9.6]). Finally, it is clear in the canon Episcopi that these women are declared to be heretics, because it calls them ‘criminally wicked women who have turned themselves round [to ride] backwards behind Satan,’ that is, they are apostates from the Faith. The canon also says that they have drawn others along with them to a faithlessness which kills them, (that is, the faithlessness of dogmatisers), have strayed from the correct faith, have lost their own faith, and are swept away towards the error of the pagans, that they belong to the Devil, not to God, and that they are worse than pagans. If, therefore, this chapter were relevant to witches [striges], modern witches should still be treated as heretics and apostates from the Faith; and therefore, from this, [people] draw the conclusion that the canon is quite clearly saying that those women are heretics and in consequence that makes them subject to the penalties for heretics. Secondly, ‘this opinion is baleful for the state and the Church’. This is quite clearly proved because witches’ [strigum] defenders use this chapter to try to keep witches [lamiae] from being executed, as is obvious from the writings of [Gianfrancesco] Ponzinibio, [Johann] Weyer, and others; and daily experience tells us that women are released unpunished on this excuse—or fewer than should be punished. Among Catholics, the experience of inquisitors of the Faith, too, is that there is no greater impediment than that certain practitioners of the law and their regulations are fenced in by this canon because they are imbued with the false opinion that all these things are illusory and do not merit serious punishment. Almost all Protestant writers complain about this situation—[Daniel] Moller, Commentary on the Customs of Saxony and [Jean] Bodin, Madness Caused by Evil Spirits; and among Catholics, the devout and learned [Nicolas] Rémy in his Worship of Evil Spirits, the Jesuit Louis Richeome in his Three Discourses, Pierre Le Loyer in Book 2 of his Spectres, and Pierre Crespet in Book 1, discourse 3 of his Hatred of Satan, where he testifies that already at the time of François i, more than a hundred thousand were accused

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centum milibus, sed plurima cum accessione adauctum postea, iudicium conniventia, et magnatum clandestino favore, et graviter deplorat discurs. 8 multitudinem iam esse tantam, quam nunquam visa fuit; et causam gliscentis mali esse iudicium perfidiam, deceptorum Wieri scriptis, et deceptorum a Diabolo, vel certe complicum Sortiariorum: vide illum a fol. 118, Sebastianus Michaelis Pneumatolog., fol. 53 et 55: scribit a Genevensibus solummodo puniri magos, qui hominibus vel brutis nocuerint, caetera illorum detestabilissima scelera insuper haberi, et ut illusoria praetermitti; non curari ab illis iniurias Deo illatas per idolatriam, blasphemias, Sodomiam etc., et ideo hodie Genevam esse scaturiginem vivam atheismi et idolatriae. Haec ille vicinus de vicinis suis potuit certo comperta habere. Conque|ritur eadem de re Bartol. Spineus, Sacri Palatii Magister, cum scribit: “Potissimam labem cur sic invalescat ipsa pestis esse, quorundam iuristarum persecutionem, quibus principes Theologiae imperiti facile credunt, quasi sapientibus, licet in huiusmodi satis rudes existant, utpote Dei providentiam, Diaboli potestatem atque malitiam, et pleraque alia Theologica, ad quae praesens articulus deducitur, ignorantes; et implent allegationibus legum folia, quae et in pluribus non faciunt ad propositum; eo quod puros actus humanos possunt regulares leges humanae, non autem Diabolicis colligatos possunt bene cognoscere, sed solum praesupposita cognitione superioris scientiae, sacrae (inquam) Theologiae, possunt poenas determinare talibus convenientes.” Sic ille Apolog. 1, cap. 3. Postea, cap. 4, sic scribit: “Hoc capitulum Episcopi male intellectum a iuristis, quatenus haec quae ad Theologiam pertinent pertractat, est causa illorum ruinae, putantium eo quod in corpore iuris Canonici redactum est, posse proprium sensum circa illud ita procedere, ut etiam Theologorum communi sensui se opponant, etc.” Idem cap. 9: “Adeoque nunc invaluit ista pestis, ut dixerit in quadam concione diabalus, qui in forma Principis apparebat (ut retulerunt qui adfuerunt nonnulli ab inquisitore deprehensi) sitis omnes bono animo. Neque enim elabentur anni multi, quod superabitis Christi fideles, quod optime diabolus obtinet suffragio diaboli, sibique similium, qui se patribus Inquisitoribus opponunt, dicentes haec

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in France, but that their number increased considerably later on because of the connivance of judges and the underhand support of landowners. He also complains bitterly in discourse 8 that their number was so great that it seemed there had never been so many of them, and that the reason for their wicked growth was the treachery of judges who were deceived by [Johann] Weyer’s writings and the deceits of the Devil or (undoubtedly) the witches [sortiariorum] accomplices. (See Crespet, pp. 118sq. and Sebastien Michaëlis, Pneumology, folios 53 and 55.) He writes that in Geneva, magicians who have done harm to human beings or animals are barely punished and, in addition, that all the rest of their absolutely detestable crimes are regarded and winked at as figments of their imagination, not [as crimes] carried out by them as injuries done to God through their idolatry, blasphemy, sodomy, etc. and that therefore Geneva is today a gushing stream of godlessness and idolatry. Someone who lives there could certainly have had this on good authority from his neighbours. Bartolomeo [della] Spina, Master of the Sacred Palace, complains about the same things when he writes, ‘The way a number of legal experts prosecute their cases is a very powerful defect and the reason this disease is growing like this. Princes unskilled in theology give them easy credence, as though they know what they are talking about, even though they are pretty ignorant when it comes to subjects such as God’s foresight and the Devil’s power and wickedness and know nothing about most of the other theological subjects with which this present part [of my treatise] is dealing. [Jurists] fill law-books with excuses which, in most cases, have nothing to do with the case in question, because human laws can regulate unsophisticated human actions, but cannot recognise those which are tied to things of the Devil. Only by means of the superior knowledge I have mentioned already—I mean sacred theology—can they determine the appropriate punishments for such actions.’ This is from his Defence [Against Ponzinibio’s Work on Witches], chapter 3. Later on, in chapter 4, he writes, ‘This canon Episcopi has been badly interpreted by lawyers in so far as it deals with things which belong to theology, and is the cause of the downfall of those who think that because it has been admitted to the body of canon law, they can go ahead with their own interpretation of it and range themselves against the common opinion of theologians,’ etc. [He says] the same thing in chapter 9. ‘This disease has increased to such an extent that the Devil, who would appear in the form of a prince during a meeting—as several people mentioned after they had been arrested by the inquisitor—said, “Be of good cheer, all of you, because not many years will go by and you will outnumber the faithful of Christ.” This the Devil demonstrates very well with the approval of the Devil and those like him who set themselves against the father inquisitors, when they

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esse deliramenta, sicque scelestis his apostatis favent, et in haeresibus suis indirecte confirmant. Nisi enim praepedirentur patres Inquisitores horum molestiis, quorum saepe Principes, tanquam sapientium persuasionibus inclinati, denegant auxilia Inquisitionis officio debita; iam eorumdem ferventium inquisitorum Zelo secta haec esset penitus delata, vel certe extra fines Christianorum penitus fugata.” Et his omnibus antiquior unus Inquisitorum Nicola. Iaquerius, anno 1457, sic scriptum reliquit: “Quod quidem cap. Episcopi, quidam incaute attendentes obstaculum non modicum praestant exstirpationi sectae, et haeresis fascinariorum, unde ipsa favorem accipit et incrementum.” Hactenus ille flagelli fascinar., cap. 9. Verum quid opus e Galliis, Italia, et Germania coacervare testimonia? Nonne in ipsa nostra Teuthonica Brabantia, quae solebat ab hoc crimine satis esse pura, hoc scelus videmus gliscere, ex quo multorum in corda falsus d. cap. Episcopi sensus se penetravit, maxime Iudicium et causidicorum quorumdam, quibus temere usurpata Wieri lectio, et incaute auditi sermones Loosei, et a quibus divina iniura et Catholicae religionis dehonestatio haud magni penditur. Minantur mihi Philippicas, et calami rigorem; exspecto, et reexspecto; sed nihil video, nisi minas et inanes iactantias; pergunt interea canes impedire, et caulas lupis reserare; sinunt malum proserpere, immo fovent dum non prohibent, quinetiam prohibentes ipsi prohibent; quid negligere cum possis perdere perversos, aliud quam fovere? Error, cui non resistitur, approbatur, et veritas, quae non defenditur, opprimitur. Hi dominum tyranicum daemonis in Christi Ecclesiam confirmant; horum opera salus reipub. proditur; ab his de communi interitu privata lucra comparantur, quibus volupe est in utramque aurem dormire, donec tortuosus draco se toto corpore insinuet, et venenum apostasiae,

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say that these things are nonsense.219 This way they protect these abominable apostates and indirectly confirm them in their heresies, and if the father inquisitors were not shackled by the trouble these people cause them—people whose princes, swayed by their arguments, as though these men knew what they were talking about, refuse the help they should be giving to the Holy Office—the zeal of these enthusiastic inquisitors would already have eliminated this sect completely, or certainly made it seek refuge entirely outwith the boundaries of Christendom.’ An inquisitor, Nicolas Jacquier, has left an addition to all this from an earlier date, 1457. ‘Some people, indeed, heedlessly regarding the canon Episcopi as no small a hindrance, oppose the extirpation of the sect and the heresy of those who cast the evil eye, and in consequence the sect enjoys their favour and increases.’ (This comes from his Scourge of Heretics Who Cast the Evil Eye, chapter 9.) But what need is there to amass testimonies from France, Italy, and Germany? Don’t we see this criminal activity increasing in my homeland of Teutonic Brabant which used to be pretty free from this crime? The reason [for this increase] is that a false interpretation of the canon Episcopi has penetrated many people’s hearts, especially those of judges and a number of advocates who have thoughtlessly misread [Johann] Weyer and listened to the discourses of [Cornelius] Loos without proper attention and have done injury to God and wide dishonour to the Catholic religion. They threaten me with Philippics and I await, and keep on waiting for, the severity of their pens, but I see nothing except threats and empty bragging. Meanwhile they continue to impede the dogs220 and unlock the sheepfolds for wolves. They allow evil to creep forward, and in fact since they do not stop it, they encourage it. Moreover, when they do stop it, they hold themselves in check. What is it you cannot fail to do when you do not destroy perverted individuals other than encourage them? ‘An error which is not opposed is approved. A truth which is not defended is crushed.’221 These people strengthen the Evil Spirit’s tyrannical dominion over Christ’s Church. Their efforts betray the safety of the state. They make private gain out of general ruin. They take pleasure in keeping both ears closed until the snake winds and insinuates its whole body [into the state] and, little by little, 219

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I have translated the text as it stands, but clearly the text is corrupt. Luc Deitz discusses this sentence and shows that late printers substituted ‘Weyer’ for the second ‘Devil’, but that Spina’s text, which Del Río has misquoted, says ‘adversarii’, not ‘diaboli’. See further L. Deitz, ‘The tools of the trade: a few remarks on editing Renaissance Latin texts’, Humanistica Lovaniensia 54 (2005), pp. 351–354. I.e. Dominici canes, ‘the dogs of the Lord’ = Dominicans. Many inquisitors belonged to the Dominican order. Gratian, Decretum chapter 3, distinction 83.

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idololatriae, ac nefandissimarum libidum, incredibilis crudelitatis, execrandorum sacrilegiorum, et quotidianarum contra tenellam aetatulam, contra fruges et alimoniam mortalium, | contra patriae totiusque generis humani salutem, machinationum, per totum paulatim Christi corpus diffundat. Quis non hos de repub. et Ecclesia quam pessime mereri pronunciet? Quis non profliget, execretur? Videmus, si quidquam videmus, impunitate striges fieri deteriores, et pedetentim plures pluresque sibi complices impigre adiungere; nec quidquam illis optabilius esse, quam quod assidue diabolus inculcat, sinceram adhuc partem eodem carcinomate pervadere. Si de ullo crimine verum, de hoc sane verissimum est vetus illud: Parcendo nocentibus innocentium salutem conservari non posse. Deus ipse per Esaiam satis aperte Babyloniis insinuat se regioni in qua maleficis parcatur, propitium nunquam futurum, sed ab ea gravissimas poenas exacturum: “Venient (inquit) tibi (Babylon) haec duo subito die una sterilitas et viduitas. Universa venerunt super te propter multitudinem maleficiorum tuorum, et propter duritiam incantatorum tuorum vehemente, Sapientia tua et scientia tua haec decipit te, veniet super te malum, et nescies ortum eius; et irruet super te calamitas, quam non poteris expiare. Ista cum incantatoribus tuis, et multitudine maleficiorum tuorum, in quibus laborasti ab adolescentia tua; si forte quid prosit tibi, aut si possis fieri fortior. Defecisti in multitudine consiliorum tuorum; stent et salvent te augures coeli, etc.” Cap. 47, v. 9, 10, 11. Confirmat B. Ioan. Chrysostom. deplorans quod ab hoc nefario ausu vix orbis minima pars servetur, et omnes fere sint aeternae mortis periculo expositi; haec Dei iram semper quidem provocasse, sed nunc multo magis, post tot tam ingentis benevolentiae ac miserationis tam insignis indicia, postquam ille filium redemptioni nostrae impendit: lege illum Hom. 10 in cap. 3, Epist. 1 ad Thimo., sub fin. Quid ergo fas sperare nobis, ubi tot quotidie pullulant maleficorum fascinariorum defensores, et in Scabinatus, Consulum, Fiscalium, Parlamentorum, et in ipsa Principum sacraria irrepunt? Utinam recogitarent annos antiquos, et priora saecula revolverent; statim deprehenderent, nulli unquam Principi, Reip. Provinciae maleficia exi-

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spreads throughout the whole body of Christ the poison of apostasy, idolatry, the most appalling debaucheries, unbelievable cruelty, execrable acts of sacrilege, and daily machinations against youth at its most tender, against mortal beings’ produce and food, and against the safety of people’s home country and the salvation of the whole human race. Who will not declare that these people merit the worst the state and Church can offer? Who will not destroy them and curse them? We see, (if we see anything), that witches [striges] become worse when they are not punished and actively recruit more and more accomplices, that they desire nothing more than what the Devil assiduously stuffs into their heads, and that he spreads the same cancer through that part [of society] which is still uncorrupted. If the old saying, ‘The safety of the innocent cannot be preserved by sparing the guilty,’ is true about any crime, it is absolutely true about this one. God clearly intimates this of the Babylonians via Isaiah: ‘These two things will come to you suddenly on a single day—barrenness and widowhood. Everything has come upon you because of the great number of your acts of harmful magic and because of the violence and lack of feeling in your incantations .... Your philosophy and your knowledge have deceived you .... Evil will come upon you, and you will not know whence it comes. Disaster will fall on you, and you will not be able to make it good .... Stick to your enchanters and the large number of your acts of harmful magic on which you have laboured since you were young if you think it will do you any good, or that you will be able to become more powerful. You have failed during the large number of your consultations. Let those who prophesy from the sky appear in court and save you,’ etc. (Chapter 47, verses 9, 10, and 11.)222 St John Chrysostom confirms this and laments that barely the smallest part of the world is safe from this wicked increase, and that almost everyone has been exposed to the danger of eternal death. These women, [he says], have certainly always provoked God’s anger, but no more so than nowadays, after so many proofs of His great kindness and His signal mercy after employing His Son for our redemption. (Read homily 4 in chapter 3, the end of his commentary on the first letter of Timothy.) So what reason is there for us to hope, when every day so many defenders of the harmful magic of those who cast the evil eye [ fascinariorum] are on the increase and creep into the judicial decisions of ministers of the Crown, procurators fiscal, parliaments, and the very cabinets of princes? If only they would reflect on ancient times and roll back earlier centuries, they would immediately understand that no prince, or state, or province has ever escaped acts of harmful magic. (I have

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tio non fuisse, quorum exempla quaedam Monito. iii in fine ponentur. Unde etiam probatur quod sequitur. Dixi tertio hanc sententiam esse ipsis assertoribus valde periculosam. Probatur. primo, quia ut ex dictis Esaiae verbis patet, Babylonicam sortem in ultione sibi consciscunt, qui Babylonis scelus innitantur, et Diaboli contra Deum partiariis, ad divinam iniuriam, et patriae perniciem, et Ecclesiae Catholicae pestem, adeo sedulam atque fidelem operam navant, et Satanae regnum propagant, et Antichristi sunt metatores. Secundo, quia dum non credunt assertioni Theologorum (ad quos spectat de peccato, sit vel non sit; item quantum vel quale, iudicare), nec stant Pontificum declarationi, aut communiori Ecclesiae iudicio, suae nequiter, et incaute fidunt prudentiae sapientiaeque, et praeter peccati noxam excommunicationis etiam se periculo exponunt in eos latae. Qui Inquisitores in haereticorum investigatione et punitione impediunt. Tertio, quia non immerito se faciunt multorum criminum suspectos; imprimis quod non sint alieni a crimine quod defendunt, ut Iaquerius notavit de Doctore Edelino, et Treviri norunt de Doctore Flaet, et de Wiero testatur Crespetus Disc. 3, et docuere Leloyher., Richeaumus, et alii complures; et possem ipse quorumdam nomina referre. Item quod causa negandi sit atheismus eo quod | non credant esse daemones, vel quia non bene sentiunt de divina providentia, quam putant sinere, innoxios a daemone infamari, repraesentari, et tandem supplicio affici, vel quia pertinaciter tenent daemonem non posse corpora localiter transferre, nec tempestates ciere, nec morbos hominibus immittere, quae contra fidem sunt, quia S.S. repugnant, ut docuit lib. 2 Disquisit., q. 11, 12 et 16, et lib. 3, q. 4, sect. 2, et quia sentiunt aliter quam Ecclesia. Nam caput Ecclesiae, et (ut sic dicam) eius lingua seu os est Pontifex Romanus; Pontificum vero Romanorum multi post d. cap. Episcopi adhortati sunt Inquisitores, ut contra striges seu Lamias, sedulo et severiter procedant, et pestem hanc exterminent; et harum crimina se non pro illusionibus, sed pro veris ac nefandis excessibus habere manifeste profitentur, ut patet ex Pontificum Bullis Innocentii vi ad Inquisitores Germaniae, Iulii iii ad Inquisitorem Cremonensem, Hadriani vi ad Inquisitores Lombardiae, et Clementis vii ad Episcopum Bolensem de stri-

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put a number of examples of this at the end of Admonition 3 which provide proof of what I am about to say.) I said thirdly that this opinion is very dangerous for the protectors themselves. The proof is (1) that, as the passage from Isaiah makes clear, those who imitate the crime of Babylon and act as the Devil’s partners against God approve of Babylonian fortune-telling at the risk of [God’s] vengeance against them. They vigorously and loyally work towards harming God, destroying their own country, and ruining the Catholic Church. They enlarge Satan’s kingdom and are surveyors for Antichrist. (2) While they do not believe it when theologians tell them whether something involves or does not involve sin, and likewise how seriously they should judge the crime and what kind of a crime it is, they do not stand by the declaration of the Pontiffs and the common judgement of the Church, either, but wickedly and heedlessly trust to the way they themselves see things and come to a decision about them; and in addition to the harm done to them by sin, those who impede inquisitors in their investigation and punishment of heretics also expose themselves to the danger of being excommunicated. (3) Not undeservedly, they make themselves suspected of many crimes, principally because they are not strangers to the crime they are defending, as [Nicolas] Jacquier noted of Dr Edelin, the people of Trier know of Dr Flaet, and [Pierre] Crespet testifies in discussion 3 of [Johann] Weyer. [Pierre] Le Loyer, [Louis] Richeome, and several others have said the same, and I myself could add the names of a number of other people. Likewise, the reason for their denial is their godlessness because they do not believe that evil spirits exist; or because they have no good opinion of God’s providence which, they think, allows innocent people to be defamed by the Evil Spirit, put on show, and in the end by subjected to torture and punishment; or because they stubbornly cling [to the idea] that an evil spirit cannot move physical objects from one place to another, or raise storms, or inflict illnesses on human beings. But these notions of theirs are contrary to the Faith because they contradict Holy Scripture, as I have said in Investigations Book 2, questions 11, 12, and 16 and Book 3, question 4, section 2, and because they have opinions which are different from those of the Church. The Head of the Church, and its tongue or mouth, (so to speak), is the Roman Pontiff. Many of the Roman Pontiffs after [the time of] the canon Episcopi have urged inquisitors to proceed with diligence and severity against shape-changing witches [striges] and witches who devour children [lamias], and to extirpate this disease, and they clearly declare that they do not regard these women’s crimes as illusions, but as genuine, unspeakable aberrations. This one can see from the Bulls of Pope Innocent vi to the inquisitors of Germany, of Julius iii to the inquisitor of Cremona, of Hadrian vi to the inquisitors of Lombardy, and of Clement vii to the Bishop of Bologna about

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gibus Mirandulanis, quas bullas referunt et scriptis suis inserunt Sprengerus in princ. Mallei malef., Spineus, Q. de strigibus, cap. 15 et Apolog. 1, cap. 11, et integras ponit Petr. Binsfeldius, lib. De confess. malefic., edit. ultima. Sic etiam sentiunt cuncta tribunalia Ecclesiastica Italiae, Hispaniae, Germaniae, Galliae, sic semper Apostolici Inquisitores in praxi observarunt: ergo hic est sensus, hoc iudicium Ecclesiae; a quo dissentire non est cordis sincere Catholici, sed haeresim sapit. Mihi quidem, qui Ecclesiam non audiunt aliquid definientem, pro Ethnicis sunt et profanis. Quarto, tales si a malitia certe nequeunt excusari a stupore ac stolida temeritate ac praesumptione. Non a stupore et stoliditate, quia negant posse fieri, quae recta philosophia et Theologia fieri posse convincit (ut ostensum lib. 2 et 3). Et quia negant facta, quae ubique, et omnes fere se fieri vidisse, et esse expertos, homines fide dignissimi contestantur, quod sapientum iudicio desipere ac insanire est, quia nihil velle credere, nisi quod propriis oculis adspexeris, signum est stoliditatis, vel protervae obstinationis, quae qualis ipsa est, caeteros putat, mendaces, fungos et leves in credendo. Levis est corde qui cito credit, sed cordis nullius et frontis ferreae qui communi virorum proborum et sapientium assertioni non credit. Nec a praesumptione queunt excusari, quia ipsi ius usurpant definiendi an aliquid sit haereticum, necne; quod non ad Iuristas, sed ad Theologos; non ad Parlamenta aut subsellia laicorum, sed ad Episcoporum conventus et Synodos pertinet; immo praeferunt suam sententiam sententiae Inquisitorum Fidei, et Pontificum Romanorum. Nam cum isti censeant non esse illusoria quae striges confitentur, nostri adversarii Wieriani contendunt deceptiones esse et pro illusionibus habenda. Plane ultra crepidam sutores, et perinde faciunt ac si lictores et alii iudicum exsecutores, iudici dicerent eum male iudicasse, et se sententiae opponerent. Nam in causa haereseos Iudices laici revera tantum sunt executores sententiae per Ecclesiasticos iudices latae. Quando enim Ecclesia definivit, verbi gratia, qui negat transsubstantiationem panis in veram carnem et sanguinem Iesu Christi in Eucharistia, haereticus est, et poenis haereticorum plectendus. Tum iudex saecularis tantum cognoscit de

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the witches [strigibus] of Mirandola. These Bulls were reproduced by [Jakob] Sprenger at the beginning of his Hammer of Women Who Work Harmful Magic, [Bartolomeo della] Spina in chapter 15 of his Investigation into Witches and Book 1, chapter 121 of his Defence, and Peter Binsfeld reproduced them in their entirety in the final edition of his Confessions of Workers of Harmful Magic. All the Church courts of Italy, Spain, Germany, and France are of the same mind and Papal inquisitors have always paid attention to this in their practice. Consequently, here we have the opinion and judgement of the Church, and Catholics cannot honestly dissent from this in their hearts without smelling of heresy. Indeed, I regard those who do not listen to the Church when she makes a definitive statement about anything as heathen and irreligious. (4) If such people [do this] out of wickedness, they certainly cannot be excused from being stupid, obtusely foolhardy, and presumptuous. They cannot be excused of stupidity and obtuseness, because they deny the possibility of what correct natural philosophy and theology prove is possible, (as I demonstrated in Books 2 and 3), and because they deny actions which well-nigh everyone everywhere who is absolutely worthy of being believed testifies he has seen done and has known from experience, and in the judgement of people of experience [this denial] is raving madness. Being unwilling to believe anything unless you have seen it with your own eyes is a mark of stupidity or shameless obstinacy which, being the kind of thing it is, thinks that everyone else is a liar and a dolt who will believe anything. A person who is quick to believe is light-minded, but someone who does not believe the common assertion of men who are honest and know what they are talking about is someone with no judgement and no shame at all. They cannot be excused of presumption, either, because they themselves usurp the right to define whether something is heretical or not, and this is not the province of lawyers, but of theologians, not of parliaments or secular courts of law, but of bishops’ courts and synods. Indeed, [these people] put their own opinion before that of inquisitors of the Faith and the Roman Pontiffs, because even though these think that what witches confess is not the result of illusion, those of my opponents who rely on [Johann] Weyer argue that what they confess is the result of their being deceived, and that it should be regarded as the result of illusion. These people clearly do not know what they are talking about and behave as though they do not. It is as though executioners and other officers of the court were to tell a judge that he had mis-judged a case and that they were going to object to his sentence, because in a case of heresy lay judges are actually just people who carry out the sentence handed down by the ecclesiastical judges. For example, when the Church has decided that someone who denies the transubstantiation of the bread into the real body and blood of Jesus Christ during the Eucharist is a heretic and must be punished

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facto, an Petrus hoc neget. Si Petrus dicat | se negare, partes iudicis saecularis non sunt aliae, quam exsequi in hoc homine, quod Ecclesiae decreto statutum; et tenetur credere talem vere haereticum esse. Sic quando Ecclesia definit striges nostras, ut vere criminosas puniendas, non licet laico magistratui hanc sententiam eludere, dicendo hanc, quae fatetur, delusam, sed rite confitentem debet condemnare. Nec etiam effugiunt notam temeritatis, tum iisdem ex causis; tum quia, cum nudi iuristae, vel medici sint, tamen audent sibi arrogare declarationem determinationis conciliorum circa fidem, quae auctoritas non competit nisi Praelatis Ecclesiarum, idque de consilio Theologorum, quibus Praelatis solis concessa facultas canones fidei condendi. Adversarii vero contendunt d. canonem Episcopi pertinere ad striges nostras, et ideo illo Canone decidi has deludi; Pontifices autem, quos nominavi, declarant illas non deludi, nam iubent Inquisitoribus, ut in striges, tamquam verorum criminum reas rigorem legum contra haereticos latarum exerceant, nec tamen Canonem Episcopi antiquant, nec ullus eum ex Decreto tollendum iudicat: ergo satis declarant se censuisse, nihil hunc canonem ad striges pertinere; alioquin eum abrogassent. Eodem modo eum intelligunt Inquisitores fidei, qui semper ex doctissimorum Theologorum et Canonistarum numero deliguntur. Nonne temerarium est contra hos omnes suo iudicio, in re tam gravi, et adeo periculosa sibi et reip. niti? Ultimam denique conclusionis nostrae partem: videlicet sententiam adversariorum nec veritati, nec rectae rationi esse consentaneam. Probo quia veritati consentaneum esse nequit, quod iudicio Ecclesiae, et Pontificum declarationi repugnat, ut facit sententia adversariorum. Nam Ecclesia est columna veritatis, et Pontifex Romanus est lingua seu os Ecclesiae, cui est promissum a veritare: Non deficiet fides tua. Quod vero veritati consentaneum non est id rectae rationi nequit esse consentaneum. Praeterea ex ipsis sectae illatum Dianiarum circumstantiis, non prorsus excaecatis, statim apparet, quam diversa fuerit illarum secta, a nostrarum strigum secta. Primo, illae credebant plures esse deos, Dianam, Herodiadem etc., nostrae striges non nesciunt se Diabolum venerari, et ei debitum uni Deo se honorem deferre. Secundo, illae profiteban-

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with the penalties levelled against heretics, a secular judge merely apprises himself of the fact: does ‘Peter’ deny this? If ‘Peter’ says he does deny it, the job of the secular judge is simply to implement the Church’s decision against this man, and he is obliged to believe that this man really is a heretic. Likewise, when the Church decides that modern witches [striges] must be punished as genuine criminals, it is not permissible for a lay magistrate to bypass this opinion by saying that the woman who is confessing [to the crime] is deluded. He is obliged to condemn her when she confesses in accordance with due process. For the same reasons, too, they do not escape being branded as foolhardy, and also because, even though they are simply lawyers or physicians, they dare to claim for themselves the right to declare what [Church] Councils decide with regard to the Faith. That authority rests only with the prelates of the Church, (and then only in accordance with the advice of theologians), and to these prelates alone has been granted the power to establish the canons of the Faith. Opponents, however, claim that the canon Episcopi relates to modern witches and that therefore, in accordance with that canon, they can decide that these women are deluded. But the Pontiffs I have named make it clear that these women are not deluded, because they instruct inquisitors to bring the full force of the law against heretics to bear upon them on the grounds that they are guilty of genuine crimes. But they do not reject the canon Episcopi, nor is there any one of them who judges that it should be removed from [Gratian’s] Decretum. Therefore, they make it perfectly clear that they have come to the conclusion that this canon has nothing to do with [modern] witches, otherwise they would have repealed it; and since inquisitors of the Faith, who are always chosen from the most learned theologians and canonists, interpret it the same way, isn’t it foolhardy [of opponents] to argue against the opinion of all these men in a matter which is so serious and so dangerous for them and for the state? Finally, the last part of my conclusion, namely, that the objectors’ opinion is not consonant with the truth or with correct reasoning. I prove that something which rejects what the Church has decided and the Pontiffs have declared, cannot be consonant with the truth, and this is what the objectors’ opinion does. The Church is the pillar of truth, and the Roman Pontiff is the tongue and mouth of the Church which was promised by the Truth, ‘Your faith will not desert you,’ and of course what is not consonant with the truth cannot be consonant with correct reasoning. Moreover, from the actual circumstances of the sect of Diana’s followers, it is immediately apparent to those who are not entirely blinded how different is the sect of those women from that of modern witches. (1) Those women used to believe that there are several divinities— Diana, Herodias, etc. Modern witches are not unaware that they are worshipping the Devil and are paying him the honour they owe to the one God. (2)

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tur quaedam prorsus impossibilia, ut equitare cum Herodiadae, quae nequit ex inferno egredi; et cum Diana Dea, quae nulla est; nostrae nihil ferme confitentur, nisi quod, citra miraculum, sit possibile. Si dicas Sever. Sulpicius, lib. 1 De vita D. Martini, scribit ei umbram terram Latronis, quae ex inferno prodierat apparuisse; sic ergo Herodias inde prodire. Resp. non recte id inferri. Nam quoad Latronis animam potuit id Deus permittere ad falsi cultus destructionem; si vero inde Herodias prodiisset (quam illae misellae credebant esse veram Herodiadem), id foret ad falsi cultus confirmationem, quod Deus numquam permitteret. Tertio, illae credebant quod cum Diana proficiscerentur; nostrae quod cum suo magistello seu martinetto daemone, in quo illae fallebantur, nostrae non falluntur. Quarto, illae omnes putabant aliquid veri Numinis et divinitatis inesse creaturae (nam in hac re diserte canonis decisio fundatur, dum ait: “quia huiusmodi mulieres aliquid Numinis et divinitatis, extra unum Deum arbitrantur”), nostrae striges vix ullae hac | ignoratione vel errore ducuntur. Quinto, nostrae expresse renunciant Deo, et professioni fidei, quam in baptismo ediderunt, offerunt daemoni asservatam eucharistiam; conculcant cruces, et alia multa faciunt sacrilegia, quorum nihil illis aliis mulierculis impingitur. Sexto, misceri se carnaliter cum daemonibus fatentur, quod non aliae. Septimo, nostrae conficiunt et utuntur maleficia, pecudes, hominesque, praesertim infantulos, necant; et fruges procellis perdunt, quorum nihil de aliis illis legitur. Octavo, nostrae conspirant cum Satana in humani generis perniciem, qua de re nihil est in d. cap. Episcopi. Nono, nostrae baculo, vel olla, vel quo alio utensili inter tibias sumpto, per aerem vehuntur, et interdum pedibus iter conficiunt in itu ad conventum, et reditu domum, secus ac illae quae tantum super bestias se dicebant omnes equitare. Has et similes alias differentias facile quilibet colliget ex confessione illarum, in d. cap. Episcopi, et nostrarum strigum in actis iudiciariis, unde appareat sine iusta ratione adversarios ad nostras d. cap. porrigere. Decimo, argumentatur

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Those women used to claim a number of quite impossible things, such as riding with Herodias who cannot come out of Hell, and with Diana who does not exist. Modern witches confess almost nothing, this side of a miracle, which is not possible. If you say that Severus Sulpicius writes in Book 1 of his biography of St Martin [of Tours] that the foul ghost of a robber, which had come out of Hell, had appeared to him,223 and that this is how Herodias could come thence, my answer is that this inference is not correct because, in the case of the robber’s soul, God could have allowed this [to happen] in order to destroy a false veneration, whereas if Herodias had come thence—and those unfortunate women did believe it was the real Herodias—that would be a confirmation of a false veneration, and God would never allow that. (3) Those women used to believe that they were journeying with Diana, modern witches that they are doing so with the Evil Spirit, their ‘little teacher’ or ‘lash’. Those women were mistaken; modern witches are not. (4) All those women used to think there is something godlike and divine in a created being—one can easily find out what the canon means in relation to this, since it says, ‘because women of this kind think there is some kind of divinity or divine power outwith the one God.’ Scarcely any modern witches are guided by this ignorance or error. (5) Modern witches expressly renounce God and the profession of faith they made at their baptism. They offer the Evil Spirit the eucharist they have kept back. They trample on crosses and do many other sacrilegious things, none of which can be said of those other silly women at all. (6) Modern witches confess they have sex with evil spirits; the other women did not do this. (7) Modern witches make up and make use of malefices, kill cattle and human beings, especially very young children, and destroy crops with rain-storms, none of which one reads about in connection with those other women. (8) Modern witches, with Satan, conspire, the destruction of the human race. There is nothing about this in the canon Episcopi. (9) Modern witches put a stick or a pot or some other household utensil between their legs and are carried through the air. Sometimes they make their journey to their meetings and come back home again on foot. Not so those [other] women, who all used to say they rode merely on animals. Anyone can collect these and other similar differences from the confession of those women in the canon Episcopi and from that of modern witches in judicial records, and if they do so it is clear that objectors are stretching the canon [to refer] to modern witches without any good reason for doing so. (10) 223

Chapter 11 of the Vita. An altar had been raised to celebrate a supposed martyr. St Martin asked God to let him see who was actually buried beneath it, and the ghost of a robber appeared, whereupon St Martin caused the altar to be removed and so put an end to the mistaken cult.

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Bernard. Comens. in Lucerna inquisitorum, cap. 4, tempore Concil. Ancyrani secta strigum videtur nondum nata fuisse; ac fortassis nec Gratiani tempore, qui anno demum 1150, vel circiter (Sic gloss. cap. cum post appellationem § forma vero., 2, q. 6) decretum compilavit. Nam praedicta secta strigum videtur pullulare coepisse, paullo plus quam a centum quinquaginta annis, ut ex Iaquerio et antiquis Inquisitorum processibus apparet; idem asserit eo loco Franc. Pegna, in addition. Sane vetustiorem Iaquerio, de strigibus in terminis ac clare loquentem, haud scio an alium invenias; ille autem nondum centum quinquaginta annis devixit. Quo igitur pacto, cap. Episcopi, de tam diversis, et tam diu post secuturis haereticis egisset? Nam easdem non esse illas mulierculas cum nostris, sed in multis multum discrepantes, iam ostensum. Unde etiam sit manifestum veritati ac rationi consentaneam esse sententiam contratiam eorum, qui d. cap. Episcopi volunt non pertinere ad eas de quibus nunc agimus striges, quae est plane communis Catholicorum sententia, imprimis eorum quos citavi Pontificum Romanorum, Innocentii, Hadriani, Iulii, et Clementis, et Episcoporum vel Cardinalium, Turrecrematae in d. cap. Episcopi, Alphon. Tostati, in Matth., cap. 4, q. 47, Simancae Episcop. Zamorensis Catholiq. institut., tit. 27, et fidei Catholicae inquisitorum, Iaquerii Flag., Fascin., Sprengeri Mallei malefic., part. 2, Nideri in Praeceptorio, praecept. 1, cap. 11, q. 4, Bernard. Comens. in Lucern. Inquisitor. et magistrorum sacri Palatii, Silvestri Pineratis, De strigmag., lib. 1, cap. 14 et lib. 2, cap. 1 et 4, et Spinei De strigibus, cap. 1, cum seqq. et aliorum gravissimorum tam Iurisconsult., quam Theologorum, si non omnium, certe tot ac tantorum, ut eorum comparatione adversarii merito nulli censeantur, nonnullos nominabo: sic Ioan. Grassus, Cons. de strigibus, Augustin Botta De Saviliano, de eadem re alio consc. Bernard. Basinus, Relect. de artibus Magic. prop. 9, Paulus Grilland., De sortileg. quaest. 7, et post accuratam disputationem Arnoldus Albertinus De agnoscendis assertionibus haeret., q. 24, a n. 13, maxime n. 24, qui multa argumenta in contrarium adducit,

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In chapter 4 of his Lantern for Inquisitors, Bernard of Como argues that the sect of witches does not appear to have come into being yet at the time of the Council of Ancyra, and perhaps not at the time of Gratian who did not compile his Decretum until the year 1150 or thereabout—see the gloss on the chapter with ‘after the title’, paragraph ‘but the form’ 2, question 6—because the foresaid sect of witches seems to have started to grow a little more than a hundred and fifty years later, as is clear from [Nicolas] Jacquier and old inquisitorial investigatory records. Francisco Peña, (quoted by Jacquier), says the same. I certainly do not know whether you can find anyone older than Jacquier who speaks specifically and clearly about witches, but he lived less than a hundred and fifty years ago. So how could the canon Episcopi have been dealing with such different heretics who came along so long afterwards, because I have now shown that those silly women are not the same as those of our day, but are very different in many ways? From this it should also be clear that the opinion of those who say the canon Episcopi is not relevant to the witches I am dealing with at the moment is the opposite of that which is consonant with truth and reason, and this is plainly the opinion common to Catholics, especially of those I have cited—the Roman Pontiffs Innocent, Hadrian, Julius, and Clement: of bishops and cardinals— [Juan de] Torquemada on the canon Episcopi: Alonso Tostado in his commentary on Matthew, chapter 4, question 47: [Diego de] Simancas, Bishop of Zamora, in his work on Catholic institutions, title 27: of inquisitors of the Catholic Faith—[Nicolas] Jacquier, Scourge of Heretics Who Cast the Evil Eye: [Jakob] Sprenger, The Hammer of Women Who Work Harmful Magic, part 2: [Johannes] Nider, What God’s Law Teaches 1, chapter 11, question 4: Bernard of Como, A Lantern for Inquisitors: of Masters of the Sacred Palace—Silvestro [Mazzolini da] Prierio, The Astonishing Things Done by Witch-Magicians Book 1, chapter 14 and Book 2, chapter 4: and [Bartolomeo della] Spina, Witches, chapter 1 and what follows: and no objectors at all are thought to hold a candle to any of the other very weighty authorities, legal experts and theologians, (and if not to ‘any at all’, certainly to very many of them.) I shall name several. Giovanni Grassi’s advice on witches; Agostino Botta di Savigliano on the same subject, with a different opinion; Bernardo Basino, Second Thoughts on the Practices of Magic, proposition 9;224 Paolo Grillando, Divinatory Magicians, question 7 and, after careful argument, Arnaldo Albertini, Understanding the Claims Made by [Catholics and] Heretics, question 12, from number 13 and especially number 24 which 224

He does not appear to have published a book with this exact title, so the ‘relectio’ here may simply indicate a second and/or revised edition. More than one version of his De Artibus Magicis certainly did appear in print.

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quibus egregie ipsemet respondet. Fransc. Pegna, Commentar. 68 in directorium Eimerici, et idem in Annotation. ad Ambro|sium de Vignate tractat. de haeresi., q. 12, ubi etiam accurate ostendit Ambrosium illum a nobis non dissentire, et si dissentiret eius opinioni non standum; Marquardus de Susanis Tractat. de Iudaeis et aliis infidelibus, cap. 13, n. 28, Ioan. Maior. in 2 cap. 14. q. 3, Barihol. Sibyllanus 3 Decad. Mirabilium, cap. 7, q. 4, Franc. Victoria Relect. de Magia, q. 7, Alfon. a Castro, lib. 1 De iusta haeret. punit., cap. 16, Sixtum Senens., lib. 1 Bibliothe. Sanctae, annotat. 73, Pet. Binsfelius Suffragan. Trevirens. De confession. malefic. in solutione argument. ad primum mihi fol. 347, Michaelius in Pneumalog. et Franc. Picus lib. 3 Dialog. strix, et omnes quos citavi superius hac sect. 16. lit. W. Restat respondeamus obiectionibus adversariorum. Ad 1: Dico quaedam esse similia mulierculis illis cum nostris strigibus, sed in praecipuis, maxime quae sunt fundamenta et bases, dicti cap. Episcopi, discrepare, immo nec in his quae ponit argumentum conveniunt, nam nostrae non tantum noctu, ut illae, sed etiam interdiu vadunt ad cursum, nec umquam cum Diana vel Herodiade se putant, nec super veras bestias vehi, nec semper equitant, nec Dianae vel Herodiadi obtemperant; nec ignorant praesidem conventus esse Satanam: v. supr. vers. ultimam denique. Ideo hic non procedit argumentum a simili, nec extensio Canonis, cuius verba non conveniunt nostris strigibus, nec dispositio, quia nostrae non credunt totum quod illae asserebant, quod totum complexum in canone illo damnatur; non vero credulitas, quod a daemone in alium locum corporaliter queant transferri, quae nihil habet commune cum opinione infidelium, ut dicti auctores optime ostendunt, maxime Albertin., d. loco n. 25, et ex hac extensione magnum contra philosophiam sacram prophanamque absur-

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adduces many of the arguments to the contrary, to which he makes exceptionally good responses; Francisco Peña, commentary 68 in his commentaries on Nicolas Eymeric’s Handbook, and likewise in his annotations on Ambrosio de’ Vignate’s treatise on heresy, question 12 in which he also accurately shows that Ambrose does not disagree with me, and that if he did disagree, one should not abide by his opinion; Marquardo Susanna, Treatise on the Jews and Other Pagans, chapter 13, number 28; John Major in 2, chapter 14, question 3; Bartolomeo Sibylla, [A Mirror of Exotic Questions], decade 3, chapter 7, question 4; Francisco de Vitoria, Second Lecture on the Question of Magic 7; Alfonso de Castro, The Just Punishment of Heretics Book 1, chapter 16; Sixtus of Siena, Sacred Library 1, annotation 73; Peter Binsfeld, suffragan Bishop of Trier, The Confessions of Workers of Harmful Magic, in the resolution of his first argument, folio 347 in my copy; [Sébastien] Michaëlis in his Pneumology; and Gianfrancesco Pico [della Mirandola] Book 3, his dialogue entitled ‘The Witch’; and all those I have cited earlier in this section 16, at letter W.225 Now I must answer my opponents’ objections. To the first I say that modern witches are like those [earlier] silly women in certain respects but differ very much in regard to things which are fundamental and basic to the said canon Episcopi. Indeed, they do not agree in regard to the following points which the canon [offers] as evidence. Modern witches go on their journey not only at night, as the [other] women did, but also during the day. They never think they are riding with Diana or Herodias, nor that they are being carried on real animals. They do not always ride, and they do not obey Diana or Herodias. They are not unaware that it is Satan who presides over their assembly. (See above, ‘finally the last part of my conclusion’.) Therefore as far as this is concerned, argument by analogy does not get us anywhere. Neither does extending the canon [to modern witches], because what it says is not consistent with modern witches; nor does its authority, because modern witches do not believe everything the earlier women were claiming, and the canon condemns everything they were embracing. But the belief that they can be transported physically somewhere else by an evil spirit has nothing in common with pagan opinion, as the authors I have mentioned demonstrate very well, most especially [Arnaldo] Albertini, op.cit., number 25; and if one extended the canon [to include modern witches], a great absurdity contrary to both sacred and profane philosophy would follow, as has been pointed out at great length. (I have 225

Giovanni Grassi, (also Joannes de Grassis or Crassis), died 1473. He was Professor of Law at the Universities of Turin and Padua. Agostino Botta di Savigliano floruit mid fifteenth century. Marquardo Susanna, (c.1500–1578), a jurisconsult, first published his treatise in 1558.

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dum sequeretur, ut doctum abunde. Navarri auctoritati iam respondi, eum aliter intelligendum: vide lib. 2, q. 16, litt. A. In 2: Obiectione supponitur minor falsa, nam falsum esse ostendi nostras striges credere similia his quae in d. cap. Episcopi damnantur. Ad 3: Quoque resp. vel nullas, vel vix ullas Lamias hoc credere. Solent enim in confessionibus suis dicere se aliis videri tales; ipsae autem sciunt et transformatas non esse. Quod si rudiores aliquae id, ut Lycanthropi quidam faciunt, putent: fateor tales a daemone, quo ad hoc punctum, delusas esse; tamen si hoc pertinaciter teneant, dico ex hoc cap. Episcopi illas ut haereticas debere damnari, ut recte censent Ambrosius de Vignate, Albertinus, Pegna et alii. Ad 4.: Respondeo primo incertum esse, de qua secta mulierum Burchardus loquatur. Nam Burchardianae eodem modo, quo illae Gratiani, deludebantur, nempe circa praesentiam Herodiadis aut Dianae; nostrae vero circa sui daemonis, tam vectoris, quam incubi, et Praesidis in conventu, non decipiuntur; sciunt enim ipsummet esse. Pleraeque etiam norunt discernere, quando id vigilantibus vere, et quando somniantibus per imaginationem contingat. Denique notant loca, personas, et reliquas omnes circumstantias, et de his in confessionibus suis tam noxii, quam innoxii, in testimoniis conveniunt; quod delusionem omnem excludere satis ubertim ostensum. Nostrae quoque quoad transformationem, non credunt se cum hominibus veris rem habere, sed cum daemonibus in corpore formato vel assumpto. Item | sciunt distinguere inter veros homines qui choraeis intersunt, et inter daemones illis permixtos. Ideo possumus negare Burchardum de strigibus nostris loqui, quarum secta diu post adhuc ignota mansit. Secundo dubium est quo pacto Burchard. accipiat illud: necessario. Nam si de necessitate absoluta, ut velint nolint cogantur eo in bestiis advolare, perspicuum est eum de nostris non agere; quae, si nolint, eo non devehuntur, sed domi manent, sed postea poenam aliquam absentiae luunt. Si vero intelligit necessitatem conditionatam, v.g. debent ire, si nolint affligi; male id adscribit infidelitati, nam res ita se habet de facto. Si capit de necessitate morali, v.g. quod putent se peccare non eundo, et ideo ire debere; hoc nihil attinet ad nostras, quae sciunt se peccare eundo, non vero remanendo. Et sane

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already answered the opinion of Martín de Azpilcueta [Navarre] that it should be interpreted differently. See Book 2, question 16 at letter A.) The second objection contains a false minor premise, because I have pointed out that it is not true that modern witches believe things similar to those condemned in the canon Episcopi. To the third objection I also answer that no witches [lamias], or scarcely any, believe this because in their confessions they usually say that other people see them in a different guise. They themselves are aware they have not changed shape. If any rather ignorant women think they have done so, as a number of lycanthropes do, I maintain that such women have been momentarily deluded by an evil spirit. But if they are stubborn and persist in saying this, I say, based on the canon Episcopi, that they should be condemned as heretics, which is what Ambrosio de’ Vignate, Albertini, Peña, and others quite rightly think. My answer to the fourth [objection] is, first, that it is not certain which sect of women Burchard is talking about, because Burchard’s women were deluded in the same way as Gratian’s, especially about the presence of Diana and Herodias. Modern witches, however, are not deceived when it comes to their own evil spirit’s acting either as transporter or incubus, or as president during their meeting, because they know it really is he. Most of them also know how to distinguish when this is actually happening to them while they are awake and when it is happening while they are imagining it in their dreams. Finally, they signify places, persons, and all the other remaining circumstances, and the guilty in their confessions, as well as the innocent in their testimonies, are in agreement on these points. I have also given fairly abundant proof that excludes delusion entirely. Modern witches also do not believe, as far as shapechanging is concerned, that they are dealing with real humans, but with evil spirits in a body the spirits have formed or assumed. Likewise, they know how to distinguish between the real humans with whom they take part in dances and the evil spirits who mingle with them. I can, therefore, deny that Burchard is talking about modern witches, whose sect was still unknown a long time after his period. Secondly, it is not certain what Burchard means by ‘necessarily’, because if he means that the necessity is absolute, so that they are compelled, willy nilly, to fly there on animals, it is clear he is not dealing with our modern witches. They stay at home if they do not want to go and are not carried off, and afterwards pay a penalty for being absent. But if he means the necessity is conditional—for example, they ought to go if they do not want to be beaten up—he is wrong to ascribe it to want of faith, because the situation is as it actually is. If he means moral necessity—for example, they think they are committing a sin by not going and are therefore under an obligation to go— this has nothing to do with modern witches, who know they are committing a

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toto illo capite nihil proponit Burchardus has sentire, quod rectae fidei repugnet, iuxta iam a nobis demonstrata. Nec mirum hac in re illum errasse, qui in eodem capite halucinatur circa tempestates ciendas, et maleficium amoris odiique, ut ostensum lib. 2 et 3. Ad 5 argum.: Ex responsione ad 4, patet solutio. Habent adversarii plenam (nisi fallor) d. cap. Episcopi explicationem quam velim eos perpendere, sine protervia aut pervicacia, quae faciunt, ut videntes nihil videant. sectio xvii De libris Magicis. Nec possunt ad haeredes transmitti, nec legi, nec retineri, sed sunt igni tradendi. Ut iure antiquo cautum, et in primitiva Ecclesia observari solitum, et hoc renovatum edicto Pii iv et Clementis viii, Pontific. in regg. quas praefixerunt Indici lib. prohibit. Reg. 9. intellige praeterquam ab illis quibus prohibitorum librorum generalis lectio, in bonum publicum Pontificis Maxim. auctorirate fuerit concessa. Solis Pontificibus reservatum est hanc licentiam largiri, et quibus ipsi hoc permiserunt, ut nominatim omnibus Inquisitoribus fidei, et eorum commissariis, pro tempore existentibus. Episcopis vero, eo solo quod Episcopi sunt, haec licentia sed legendi libros prohibitos non competit, ut docet Penna, et hoc fuit a Pio v, quibusdam Episcopis diserte responsum. Sunt autem tales libri, non auctoritate propria comburendi, sed potius deferendi ad inquisitores. Qui eos retinent, nisi deferre parati sint, non sunt absolvendi; et haec absolutio reservata est habentibus potestatem absolvendi a casibus bullae caenae Domini, et ab aliis impensa absolutio, nulla, est et invalida, sunt etiam tales retinentes vehementer de eadem haeresi suspecti; si libri sint ab aliis compositi. Nam si ab ipsismet compositi forent, plene convincerentur, et damnari possent ut haeretici magi; si tamen faterentur a se compositos, vel a se scriptos, vel ab

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sin by going, but not by staying where they are. Certainly, in the whole of that chapter, Burchard suggests that these women experience nothing contrary to the correct faith, as I have already demonstrated. It is not surprising he was wrong as far as this is concerned, because in the same chapter he prattles on about raising storms and the malefice of love and hate. (I pointed this out in Books 2 and 3.) The answer to the fifth objection is obvious from my reply to number 4. Unless I am mistaken, objectors have a complete explanation of the canon Episcopi, and I should like them to think about it without being saucy or obstinate, which is what people do when they do not want to see what is in front of their eyes. Section 17 Books of magic They cannot be left to heirs, or read, or kept. They must be thrown into the fire, as was required by an ancient law which was usually observed in the early Church. This was renewed by an edict of Pope Pius iv and Pope Clement viii, according to the regulations they attached to the index of prohibited books, (regulation 9). An exception, however, is made for those who, by Papal dispensation, are allowed a general reading of prohibited books for the good of the public. It is for the Pontiffs alone to grant this licence, and those whom they have allowed to do this are expressly all inquisitors of the Faith and those they have commissioned. But this permission does not allow bishops to read prohibited books simply because they are bishops, as [Francisco] Peña says, and this was Pius v’s express reply to certain bishops. There are, however, certain books which one should not burn on one’s own authority, but which should, rather, be reported to inquisitors. Those who keep them should not receive absolution, (unless they are prepared to report them), and this absolution is reserved to those who, as a result of the special provisions made in the Bull ‘Coenae Domini’, have the power to absolve.226 Given by anyone else, this absolution is null and void. Those who retain this kind of book are also strongly suspect of the same heresy, even if the books have been compiled by other people, and if they themselves were to compile them, this would show their thorough-going guilt, and they could be condemned as heretic magicians. But if they were to con-

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alio se dictante scriptos, nec quicquam causari possent quod eos ab haeresis crimine tueretur: vide de hac re bene loquentem Siman. in Prax. a n. 3, tit. 39. Idem quod inquisitoribus fidei, quoad librorum horum usum puto esse publicis Librorum Censoribus Ecclesiasticis; non vero dd. quia doctores sunt, nec Parochis quia Parochi. quod diligenter notandum, etsi in multis locis periculose Parochi et dd. hoc ius sibi usurpent. | sectio xviii De Eucharistia morituris praebenda. Consuetudo multis locis est maleficis ad mortem damnatis denegare viaticum corporis Dominici, quae consuetudo tolerari potest, propter Sacramenti reverentiam, illis locis, ubi post sententiam statim reus morti traditur. Locis aliis, ubi pridie sententia fertur, et postridie reus interficitur, etiam consuetudinem hanc admittit Navarrus. Sed omnino putarim, tunc reis praebendam communionem, nisi quid aliud obstet; nempe dummodo Catholici sint, et vere poeniteant, probatur haec sententia iure Pontificio et civili, et dd. auctoritate; probatur et ratione, quia consulendum eius animae, cuius corpus traditur ad mortem, neque hoc est dare Sanctum canibus; poenitens enim eam Deo amicus est, et non canis. Nec dedignatur Christus eum invisere, pro quo mori dignatus fuit in cruce. Item ad hoc requiritur ut reus sit ieiunus; non enim idem obtinet in aegro morituro, et sano morituro, ut optime docet Navarrus; et ut tantum temporis inter supplicium et communionem intercedat, ut species sacramentales sint verisimiliter consumptae, ad quod non dubito, cum Navarro, quatuor horas sufficere, confessio Sacramentalis numquam reo, ne immediate quidem ante mortem, deneganda; contra unctio extrema reis numquam concedenda. Semper autem cavendum ne post Eucharistiam, vel confessionem quilibet reum

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fess they had compiled them, or written them, or that they had written them at someone else’s dictation, they could not plead anything as an excuse which would save them from a charge of heresy. (On this, see [Diego de] Simancas’s very good account in his Practice, from number 3, title 39.) Likewise, with respect to the use of these books, I think that is the business of inquisitors of the Faith as public ecclesiastical censors of books, not of scholars on the grounds they are scholars, or parish priests because they are parish priests. This should be carefully noted, despite the fact that in many places parish priests and scholars do appropriate this right to themselves at their peril. Section 18 Offering the Eucharist to those who are about to die It is the custom in many places to deny the viaticum of the Lord’s Body to workers of harmful magic who have been condemned to death, and out of respect for the sacrament this custom can be tolerated in those places where the convicted person is executed immediately after sentence is passed. Navarre [Martίn de Azpilcueta] thinks that this custom should also be observed in other places where sentence is passed one day and the convicted person is executed the next, but I am firmly of the opinion that, under these circumstances, those who have been convicted should be given communion unless there is some other reason which prevents it—certainly when they are Catholics and genuinely penitent. This opinion has the approval of Papal and civil law and the authority of scholars. It is also proved by reason, because one should also take into account the soul of the person whose body is being handed over to death. This is not to give what is holy to the dogs, [Matthew 7.6], because a penitent is now a friend to God and not a dog, and Christ does not scorn to visit someone for whom He deigned to die on the cross. Likewise, for this purpose the convicted person is required to fast, because he is not receiving the sacrament as a sick or healthy person on his deathbed, as Azpilcueta quite rightly says, and so that a decent amount of time can come between his communion and his punishment for it to be likely that the species of the sacrament has been consumed, like Azpilcueta, I have no hesitation is saying that four hours are sufficient. Sacramental confession should never be refused a convicted person, not even immediately before his death. On the other hand, extreme unction should never be granted those who have been convicted. One must always take care not to let anyone visit the convicted person after he has received the Eucharist or made his confession and make him

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invisat, et inebrietur, vel alia fiant piam mortem et seriam poenitentiam impedientia, qua in re hic in Belgio et Germania superiore multum et frequenter peccatur. sectio xix An corpus sepeliendum?

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Sequenda in hoc regionis consuetudo, quoad illos qui a Carnifice iuxta tenorem sententiae sunt interfecti. Quoad alios, qui sententiae executionem morte praevenerunt, notandum primo huius (ut et haeresis) excepti criminis naturam esse, ut morte non finiatur, sed contra mortuum procedi in eo possit; et in locis ubi bona confiscantur, potest etiam post mortem agi ad bonorum confiscationem, sed ubi talis consuetudo non est, saltem ad memoriae damnationem, et corpus sepultum condemnatum posset exhumari, et ossa comburi. Qui durante reatu sibi mortem consciverunt; ii non sunt sepeliendi Ecclesiastica sepultura, sed cadaver deberet a iudicibus in furcam agi. Si obiicias contrariam sententiam communiorem, quoad ultimum membrum, nempe non posse iudices in corpus in carcere mortui saevire, illud suspendendo vel cremando, quia crimina et eorum poena morte exstinguuntur. Respondeo: Hanc rationem locum non habere, quando moriendo novum crimen committitur, et ipsa mors crimen est; crimine enim nec crimen, nec criminis poena potest exstingui. Haec me causa impellit ut a communi sententia recedam. Deinde plerique censuerunt et optime, in atrocioribus criminibus, rectius aequius esse adhuc cadavera puniri, cum gravissimo cum scelere, se | debitae poenae reus conatus fuit subtrahere; et consuetudo fere generalis comprobavit hanc praxim cadavera talium puniendi, ad aliorum necessarium exemplum. Eos autem consanguineos et amicos, qui reis in carcere venenum, vel laqueos, vel cultros suppeditant, ut violentas sibi manus inferant ad ignominiam evitandam, in quos merito dd. invehuntur, non dubito teneri lege Cornelia de Sicariis. Si vero, non vi sibi illata, sed aegritudine, vel debilitate, aut incommoditatibus carceris morerentur ante sententiam, in his ego prorsus sequerer communem illam sententiam; adeo ut si in talem, non legitime confessum aut convic-

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drunk or do anything else which can get in the way of a good death and a serious repentance. (Here in the Spanish Netherlands and in Upper Germany this sin is common and very frequently committed.) Section 19 Should the corpse receive burial? The custom of the region should be followed in the case of those who have been put to death by the public executioner in accordance with the details of the sentence passed against them. In the case of others, who die before their execution, the character of this crime, which falls outwith the normal legal rules, is like that of heresy: it does not cease with death, and one may take proceedings against the dead person, and in places where their goods are confiscated one can even take steps to have a dead person’s belongings confiscated. Where there is no such custom, one can at least dishonour the dead person’s memory, and the body of a condemned person who has been buried can be exhumed and his bones burned. Those who decide to kill themselves while their trial is still going on should not be buried according to the rites of the Church, and their judges should have the corpse hung from the gallows. If, in respect of this last point, you raise the quite common objection to the contrary—that judges cannot savage the corpse of someone who has died in prison, either by hanging it up or burning it, because death has extinguished their crimes and their punishment—my answer is that this argument has no force in a case where a person’s dying constitutes a fresh crime, and that neither the crime nor the punishment for that crime can be extinguished by another crime. This reason impels me to withdraw from the common opinion. Secondly, most people have thought, (and quite rightly), that in the more atrocious crimes it is more appropriate and more just that the corpses still be punished because the accused has tried to escape his due punishment by committing a very serious crime, and an almost universal custom has approved this practice of punishing such persons’ corpses, as a necessary example to others. But scholars, obliged thereto, I have no doubt, by the Cornelian Law dealing with assassins, quite properly inveigh against those relatives and friends who supply accused persons in prison with poison, nooses, or a knife so that they can lay violent hands on themselves in order to avoid ignominy. However, when they have not committed suicide, but have died of sickness, weakness, or conditions in prison before the sentence has been carried out, I very much follow common opinion to the extent that, if someone has not made a legal confession or has not been found guilty, the judge who behaves

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tum, iudex saeviens eum non patiatur Ecclesiasticae tradi sepulturae; peccet Mortaliter, et actione iniuriarum conveniri a propinquis defuncti possit. Poterit tamen iudex sinere corpus sepeliri cum protestatione, et litem caeptam contra mortuum prosequi, citatis ad defensionem iis quorum interest, ut in haeresis crimine servatur. Sed quot annorum spacio currit ius contra mortuum agendi? Putarim in hoc crimine quoad bonorum confiscationem, non posse agi, post annum quadragesimum; ad memoriam tamen damnandam, adhuc agi posse, iuxta ius Canonicum, sed civile videtur quinquennii tantum spacium exigere, cui in foro civili standum. appendix i ad lib.v. His addam, quae ad me v. cl. Petrus Oranus scripsit quindo Kal. Decemb. 1599 et adiungam ex rebus alibi iudicatis nonnulla, quae solius Parisiensis Curiae iudicatis non immerito praeferantur, quamquam nec Duareno (cuius in scholis, quam in subsellis, maior laus) satis credam hoc Parlamenti illius constans esse iudicium, sed fors illum arresta aliqua decepere, quae aliis, ipsi non notis, fundameniis innitebantur. Orani verba sunt. In Magicarum Disquisitionum Tomo primo, adversus Alciatum nostrum, strennue decertasti, depulsioneque plena atque solida, errorem notasti, et confutasti, demiror doctissimum Alciatum non tantum in Parergis, verum etiam in Recitationibus Ad Decretales Pontificum in eo errore perstitisse, sic autem scribit: “In contingentia facti vidi quamplurimum dubitari, Inquisitor pronunciaverat contra quandam mulierem ac tradiderat Iudici saeculari, hic ad partis instantiam vidit processum, in quo continebatur quod haec mulier confecerat pocula quaedam amatoria, et solum contra eam erant indicia quarumdam maleficarum, quae dicebant, quod in quodam lusu nocturno cum daemonibus

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in a savage fashion and does not hand the body over for Church burial commits a mortal sin, and because of his action can be sued by the close relatives of the deceased. But the judge will be able to prevent the body’s being buried if there is a protestation against its being done and pursue an action which has already been started against the deceased, once those who are important for his defence have been summoned into court, as is done in a case of heresy. But for how many years does this right against the dead person last? In relation to the confiscation of goods in this crime, I should think one cannot act after a period of forty years. As far as dishonouring the dead person’s memory is concerned, however, according to canon law this can still be done, although civil law, it seems, demands the action last only for five years in a civil court. Appendix i to Book 5 (Additional Material from Pierre Dheure) I shall add what the Most Illustrious Pierre Dheure wrote to me on 27th November 1599,227 and append several things taken from judgements elsewhere which, not without good reason, can be preferred to those of the Cour de Justice in Paris alone. But I find it hard to believe [François] Douaren, (who is more praised in seats of learning than in law-courts), although it may be that some of the Cour’s decrees which were resting upon different fundamental principles which he did not know, led him astray. This is what [Pierre] Dheure says. In the first volume of Investigations into Magic you have put up a strenuous fight against my learned friend [Andrea] Alciato, and you have noted and conclusively answered the mistake he made and put up a full, solid rebuttal. So, I am astonished that Alciato has persisted in this error, not only in his Brief Remarks [on the Law], but also in his public lectures dealing with the decretals of the Pontiffs. This is what he writes. ‘I have noticed that very frequently people are uncertain about what they can do. An inquisitor had pronounced against one particular woman and had handed her over to a secular judge. This judge, at the instance of the party concerned, looked at the records of the trial, which contained the information that she had made a number of love-potions, but that the only thing against her consisted of pieces of circumstantial evidence from a number of women who were workers of harmful magic. They said they had seen this woman one night 227

On Pierre Dheure, Del Río, and the Jean del Vaulx episode, see further Warren Boutcher, The School of Montaigne in Early Modern Europe: Volume One: The Patron Author, Oxford: Oxford University Press 2017, 191–198.

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viderant ipsam mulierem ludentem, ac ducentem choreas, ipsa vero negaverat omnia, et fatebatur se esse catholicam; fuit dictum quod Iudex saecularis non deberet exequi Inquisitoris sententiam ex defectu iurisdictionis, quod in illo processu Inquisitor non poterat cognoscere, nam quo ad pocula amatoria, clarum, illud delictum non esse haereticum, nec eius cognitionem ad Inquisitorem spectare; neque enim est credendum quod etiam ipsa vere fuisset in lusu, nam quamvis credatur sociis criminis in tali delicto, attamen illud non est trahendum ad ea quae vere | non videntur, sed per illusionem daemonum, praesertim cum istae participes criminis essent mulieres, quae regulariter non admittuntur in causa sanguinis.” Haec Alciatus. mi del rii, ex uno errore in alium labitur Alciatus, si quidem Pontifex Maxim. in accusatione etiam mulieres audiri rescripsit, non quaslibet, sed conscias, et participes eius criminis, ac facinoris; et audiri non tamquam accusatrices, sed tamquam testes; certum enim est conscias haberi pro testibus, audiri, et examinari tamquam testes; quin etiam generali consuetudine comparatum, usurpatum atque receptum, ut eiusdem criminis, et facinoris sociis credatur, si sanguine suo, id est morte, accusationem suam signaverint, et roboraverint. Et quod traditur Reum criminis non interrogari de conscientia aliorum, quod sibi non pepercit, multo minus alteri parciturus sit; id intelligendum est de confessis, non convictis; hos enim adversus conscios, socios et participes criminis interrogari manifesto iure probatur; immo et confessum interrogari in crimine laesae Maiestatis in aperto est; tale autem crimen est sortilegii, et magiae. Iudices rerum capitalium apud Stabulenses sortilegas convictas, nec confessas proscribendas, non damnandas capitis vel ad rogum contendebant; ac ne quidem, si in flagranti crimine comprehensae essent; sicque apud eos more maiorum usurpatum; verum auctorante Principe iactatam consuetudinem, et abusum abrogavimus, hoc enim nec ius admittit, altero contentum; ut vel confiteatur, vel convincatur Reus. Scio asperrimum crimen parricidium (quod Seneca, et Quintilianus nefas ultimum vocant; eoque sensu in Regem adtentatum, ultimum facinus Quintus Curtius appellat) non vindicatum acerbissimo illo supplicio, more maiorum

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at a meeting of witches, dallying with evil spirits and leading their dancing. She herself had denied everything and kept on saying she was a Catholic. It has been said that the secular judge should not carry out the inquisitor’s sentence because of a defect in jurisdiction, and that in the trial the inquisitor did not have the power to investigate the case as far as the love-potions were concerned, since it is clear the offence was not one of heresy and so not one for an inquisitor to look into. It is not credible, either, that the woman herself had actually been at a witches’ meeting because, even if one believes her partners in an offence of this kind, one’s belief cannot be stretched as far as the things they did not really see because they were an illusion manufactured by evil spirits, and this is especially so since those women were accomplices in crime and these are not normally admitted [as witnesses] in a capital trial.’ This is what Alciato says. My dear Del Río, Alciato glides from one error to another if indeed the Supreme Pontiff did give a written decision that even women can be heard in a legal action—and not just any women, but partners and accomplices in the criminal activity and the offence—and can be heard, not as plaintiffs, but as witnesses, because it is clear that these partners are considered to be witnesses, and are heard and examined as witnesses. But also, by general custom it is agreed, practised, and accepted that one should believe those who have taken part in the same criminal activity and villainous behaviour, if they have sealed and corroborated their accusation with their blood, that is, their death. It is also customary that someone found guilty of a crime should not be asked about what others knew about it, because it has not stopped him from talking, and still less will it keep someone else from talking. This should be understood of the things someone has confessed, not what he has been convicted of; and, indeed, it is fully approved in law that these people can be questioned in the presence of those who knew about the crime, (his partners in it and his accomplices). Indeed, it is well-known that in a crime of treason, what someone has confessed can be questioned, and the crime of divination and of magic is a crime of this kind. The judges of the capital cases of the women convicted of divination in Stavelot did not argue that those who had confessed should be outlawed, or should not be condemned to death or to the stake, not even if they had been arrested while committing the crime, and so we have repealed the custom (and its abuse) which was widespread because the Prince had given it his support, since the law does not allow this [practice] to be extended to a second person in order to get the accused to confess or secure his conviction. I am aware that the crime of parricide, which Seneca and Quintilian call ‘the ultimate unspeakable crime’ and, in the sense of making an attempt upon a king, ‘the ultimate offence’, as Quintus Curtius calls it, is absolutely dreadful and

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etiam in convictum et manifesti paricidii Reum, nisi si ultro confiteretur, nec confessionem fuisse extortam tormentis; tamen nihilominus convictus, apitali poena uti homicidia coercebatur, ea fuit lenitas Angusti, nolens paricidii poena plecti nisi confessos, nec Augustus sua interrogatione, certe patrem tuum non occidisti? Viam salutis, et libertatis Reo aperuit, ut voluit Casaubonus, sed benigna interrogatione abnutivum responsum elicere voluit; ne convictus, non tamen confessus, poenam paricidii sustineret; tam horrendum facinus paricidii vix credidere patratum veteres, nisi si paricida se suo iudicio convinceret. Quod vero Aliciatus scribit, adversus divinationes, et incantationes, Inquisitores incongruos, et incompetentes esse iudices, quod divinationes, sortilegia, ac alia id genus, species sint falsae Religionis, nulla tamen dogmata fidei Catholicae contraria contineant; hoc simpliciter verum non est; si enim Divinator sortilegus invocaverit, et adoraverit daemones, spem in eos ac fiduciam posuerit, sacrificia ac preces eis obtulerit (quod utique faciunt sortilegi et venenarii) recte pro sua iurisdictione inquisitor inquirit, et ita post Oldradum, et Iasonem resolvit Conradus Brunus. Demiror Gallos doctissimos errationem Alciati insecutos. Franciscus Duarenus, sic de sortilegis scribit: “De aniculis horum temporum quae volitare per aera, et nocturno tempore solitare, et choreas agere dicuntur, quaeritur? Et solent plerique Quaestores | in eas acerbius animadverte, quam ius et ratio postulet, cum Synodus Ancyrana definiverit quaedam esse quae a cacodaemone multarum mulierum mentibus irrogantur, itaque Curia Parisiensis (si nihil aliud admiserint) eas absolvere ac dimittere merito consuevit.” Haec ille. In eandem sententiam ita quoque Petrus Erodius: “nuper extitere apud Valenses, et Cenomanos vicinos nostrorum Andium, qui ex hoc maleficio dam-

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one not avenged by the severest of punishments even when exacted according to ancestral custom from someone found guilty of manifest parricide, unless he confessed it voluntarily and his confession was not extorted from him by torture. Nevertheless, once convicted, he would be put to death as a homicide. This was leniency on Augustus’s part, because he was unwilling to have the punishment for parricide inflicted unless they had confessed;228 and Augustus was not offering the accused a way out to safety and freedom by the way he put his question—‘Are you sure you didn’t murder your father?’—as [Isaac] Casaubon thought he did. By phrasing the question in this kindly fashion, he wanted to elicit a denial so that, when the man was found guilty, he would not suffer the punishment for parricide because he had not confessed to the crime. The ancients could scarcely believe that such an horrendous crime could be carried out unless the parricide convicted himself out of his own mouth. But when Alciato writes that inquisitors are inadequate and unsuitable judges when it comes to divinations and casting lots, and that anything else of that sort is a kind of false religion, but contains no teachings contrary to the Catholic faith, it is simply not true, because if the diviner or lot-caster invokes and worships evil spirits, he has put his hope and trust in them, and if he has offered them prayers and sacrifices, (which is the kind of thing lot-casters and poisoners do), an inquisitor is correct in investigating this and has the right to do so, as Konrad Braun, following Oldrado [de Ponte] and Giasone [del Maio] has said by way of refuting him.229 I wonder at the very learned French [scholars] who have gone along with Alciato’s mistake. François Douaren writes as follows about witches [sortilegis]. ‘Is one investigating the silly old women of the present day who are said to be in the habit of flying through the air and dancing at night? Pay them closer and stricter attention than law and reason demand, since the Synod of Ancyra determined that the Evil Spirit has inflicted many women’s minds with certain things, as a result of which the Cour de Paris has quite rightly been in the habit of acquitting them if they have not done anything else.’ That is what he says. Pierre Ayrault is also of the same opinion.230 ‘Recently in the villages of Vaux and Le Mans in our Ardennes, there have been people who were sentenced for 228 229

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I.e. being sewn up in a leather sack with a dog, a snake, a monkey, and a chicken and thrown into water to drown. Konrad Braun, (c.1491–1563), was regarded as one of the most eminent jurists and theologians of his time. Giasone del Maino, (1435–1519), was an Italian jurist. Alciato was one of his students in Pavia. Pierre Ayrault, (1536–1601), was a distinguished French jurist, his best-known book being a study of the proper procedure for conducting trials, published in Paris in 1576. Del Río says he is quoting from Book 5, chapter 11 of the second edition.

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nati sunt, et quos in tormentis audio confessos, se sacris (quae sabbata nuncupant) rituatim initiari, tum Christianismum abiurare et profiteri paganismum; deinde a tergo notari signis; pestremo donari pulveribus et medicamentis, quibus et brutis et hominibus officiant, itaque alios tale quid conficere, nonnullos urinam sistere, quosdam arceri a concubitu, an id effici possit, ut persuadere volunt hominibus intactis, videbimus prout res incidet; durat in hodiernum diem haec, seu magorum, seu sortilegorum perniciosa factio, nisi quod ea non amplius phiosophorum aut honestorum virorum sit, sed rusticorum et idiotarum, quae res (inquit) vanitati vanitatem adiecit.” Idem alio loci a sanguine sortilegorum, ex Ammiano Marcellino abstinendum contendit, quod multa in hoc genere vana sint, multa non nociva, multa insaniae coniunctae, multa miseranda; et si haec deliria humana aliquam poenam merentur, mitiorem vult adhibendam, ut enim furiosus satis ipso furore punitur, ita sortilegus vana indagine. In eundem errorem delatus Michael Montanus libro tertio, periculorum seu tentamentorum, Lipsius noster gustus, Auctor vero operis (Essais vocat) capite undecimo, tit. dex Boiteux. Curassem ab a Amanuensi meo describi, nisi Lipsius in libraria sua haberet, a quo, si voles, legendum accipies. Contra Matthaeus Cognetus, Senator Regius, sortilegos tamquam homicidis nequiores, naturae humanae inimicos omnimodo puniendos contendit, et dirius severiusque in eos a Magistratu animadvertendum; quod et ipsum firmat doctissimus Theologus Claudius Espenceius: “magiam proscribere (inquit) sceptri magis est, quam stili,” et eo loci multa de magis, praestigiis et incantationibus.

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this malefice, and I am told they confessed under torture that they were ritually initiated in ceremonies they call “Sabbats” where they abjured Christianity and professed paganism. They are branded with marks on their back and finally are presented with powders and drugs with which they harm both animals and human beings, which is why some of them confess some such thing as stopping several people from urinating, and preventing a number of men from having sex. Whether it is possible for them to do this the way they want to persuade people who have not been affected, will become clear as we discuss the subject. This pernicious sect, whether it consists of magicians or lot-casters, continues in existence today, except that it consists of philosophers and respectable men just as much as peasants and ignoramuses, and in consequence,’ (he says), ‘the whole business has added one piece of nonsense to another.’ In addition Ayrault, taking his cue from Ammianus Marcellinus, argues that one should avoid putting magical diviners [sortilegorum] to death because much of what this kind of person does is worthless, much does no harm, much is allied to insanity, and much deserves one’s pity, and if these human madnesses warrant any punishment, he thinks it should be fairly mild because, just as a raving madman is sufficiently punished by being raving mad, so a magical diviner [sortilegus] is punished by being trapped in his worthless pursuits. Michel Montaigne has fallen into the same error in chapter eleven, entitled ‘Cripples’ in the third Book of his ‘Experiments’ or ‘Attempts’. (My friend Justus Lipsius calls them ‘Foretastes’, but the author himself calls them ‘Essays’.) I would have had it copied by my secretary, but Lipsius had [a copy] in his library and you can, if you wish, get his permission to read it. On the other hand, Matthieu Coignet, a royal councillor, maintains that witches [sortilegos] should be punished because they are worse than murderers and entirely hostile to humankind, and that magistrates should punish them rather harshly and severely; and the very learned theologian, Claude D’Espence agrees with him. ‘It is the job of royal authority rather than that of literature to proscribe magic’, he writes, and adds much about magicians, conjuring-tricks, and incantations.231

231

Matthieu Coignet, (c.1514–1586), had a distinguished career as a lawyer being, among at various times, an advocate in the Parlement de Paris, procurator general of the Parlement de Savoie, and Master of Requests to Catherine de Médicis. His recommendation anent witches appears in his Instruction to Princes, chapter 42 (p.288 of the 1584 edition). Claude D’Espence, (c.1511–1571), was a distinguished theologian, highly regarded by the Pope and noted for his skills in oratory. He took part in preparations for certain sessions of the Council of Trent.

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Quin etiam Franciscus Hotomannus in sortilegos animadvertendum consultus respondit. Et si forte non sit plene probatum delictum sortilegi, tamen sufficere publicam vocem, et famam in loco, ut possit quaestionibus subiici, quod omnium impietatum atque scelerum a Satana repertum scelus et maxime abominandum sit, propter expressam abiurationem et renunciationem Christianae Religionis; deinde propter fidem et hominium quod diabolo praestatur; et propter exitium quod ista maledicta diaboli mancipia mortalibus inferunt, cuius rei causa, leges civiles humani generis inimicos, et hostes communis salutis appellant. Idem Hotomannus, in morbis curandis magam quae deconsulebatur non modo circulo, verum etiam certa hac verborum formula usam fuisse refert: “d’ainsi que Dieu a va, et charité a foy, et le pain n’a faim, et l’eau n’a soif, et le feu n’a froid, fau, fau, en oysi, parte d’icy dedans;” quod magicum carmen (exorcismi formulam impie Hotomannus vocat) Constitutionibus Imperatorum damnatum legimus; eos enim qui susurris, et carminibus istis utuntur, quamquam pernegent, testibus tamen gravatos, eculeo dedendos, ungulisque sulcantibus eorum latera tondenda, poenas proprio dignas facinore. Quod vero Alciatus, Erodius, et alii, sortilegos | ad sabbata proficisci, ferri per caminum, nigrum hominem vel hircum adorare, tripudiare una, atque unguenta pulveres ve dari, quibus aut transferantur, aut solo etiam flatu alios tabe conficiant; deridicula et insomnia esse putant, et ad sui dicti confirmationem, advocant Decretum Patrum in Concilio Ancyrano; solide abs te confutatum est, ut et hoc ipsum praestitit Sebastianus Michaelis Theologiae Doctor; neque adhibendam mage fidem Ioanni Baptistae Neapolitano, quam Apuleio Africano; utrumque enim fieri posse reipsa, et opinione, ideoque a particulari ad universale nullam esse consequentiam.

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Yes indeed, François Hotman, too, a man skilled in the law, advises that one should pay close attention to witches [sortilegos], and if by chance a witch’s offence has not been fully proven, public opinion and his own notoriety in the locality is enough to enable him to be subjected to investigation, since of all the acts of ungodliness and criminality Satan gets people to perform, this is particularly abominable because of its express abjuration and renunciation of the Christian religion, the loyalty and homage offered to the Devil, and the ruin this cursed enslavement to the Devil brings mortal beings; and for this reason they call the civil law hostile to the human race and an enemy of common safety. Hotman likewise reports that a female magician, who used to be consulted in cases where illnesses needed to be cured, used not only a circle, but also the following particular form of words: ‘Just as God has a way, and love has faith, and bread has no hunger, and water has no thirst, and fire has no cold, faugh, faugh! leave, go away from here inside [the circle].’ (Hotmann irreligiously calls this magic spell ‘a formula of exorcism’.) We read that it was condemned under Imperial constitutions, because those who use these whispered spells, in spite of their denying it and being buried under a pile of witnesses, were to be put on the rack and their sides raked into furrows by the claws—punishments appropriate for their particular offence. But [Andrea] Alciato, [Pierre] Ayrault, and others who think the idea that witches [sortilegos] make their way to Sabbats, are carried through a furnace, worship a black human being or goat, dance together, are given ointments or powders whereby there are either carried from one place to another, or infect other people with deadly illness simply by breathing on them, is utterly ridiculous and merely a dream; and as confirmation of their opinion, they call upon the Fathers’ ordinance at the Council of Ancyra. You have given a thorough rebuttal of this, as has Sébastien Michaëlis, a Doctor of Theology, and one should not put any greater trust in the Neapolitan Giovanni Battista than in the African Apuleius because it is possible that both can be factually and theoretically true, and therefore the particular example does not furnish a universal precedent.232 232

Giambattista Della Porta, (c.1535–1615), was a Neapolitan physician who published a book on natural magic—Natural Magic, or, Four Books on the Wonders of Nature—in 1558. This he later revised and expanded into twenty Books in 1589. There seems to be a contrast between the sortilegi Douaren describes as flying through the air and dancing at an implied Sabbat, Ayrault’s sortilegi who do little harm and are merely foolish, and those of Coignet and Hotman, who are worse than murderers. This shifting use of sortilegus/sortilegium by Pierre D’Heure suggests, perhaps, that the adoption of sortilège as a catch-all word, (like the English ‘witch/witchcraft’), was well under way in the late sixteenth century.

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Ioannes de Vaux Stabulensis monachus, inter alia recitabat indicendae congregationis (ita enim vocabat) statos conditos dies, ubi nocte intempesta ad destinata loca sodalitas comparebat, quae daemoni in forma hirci ad parenti adorationes genibus submissis faciebat, iisque in locis exstrui mensas epulis et cibis bonis, beneque sapidis (neque enim inanes mensas fuisse) et primae mensae honoratiores cum uxoribus (quos les braves homes adpellari referebat) accubuisse, primae mensae maiora subsellia, Belzebub, Astarot (haec est Venus, et Ioannis ipsius succuba) et Leviatan occupasse, secundis et tertiis mensis interfuisse etiam plures daemones sine nomine, bibi ad sanitatem Belzebub, epulis exempta famae, mensisque remotis, in promiscuos concubitus et amplexus rui, in recessu accipi a daemone pulveres spargendos in aera, ad fruges, vineas et segetes inficiendas, et sparsis pulveribus, ventorum turbines et tempestates spurcissimas excitatas. Non ignoro Senecam haec non probare; sic enim ille: “Apud nos in duodecim tabulis cavetur ne quis alienos fructus excantassit; rudis adhuc antiquitas credebat fructus posse excantari, adtrahi imbres, et repelli cantibus, quorum nihil posse fieri tam palam est, ut huius rei causa nullius philosophi Schola intranda sit.” Sed hoc Senecae dictum, ut erroneum convicisti. Florimundus de Remundis, refert apud Burdigalenses capitulum generale per sortilegos indici solere diebus Mercurii et Veneris mensis cuiuslibet, ita enim confessos sortilegii criminis Reos. Sebastianus Michaelis in Pneumalogia seu en son discours des Esprits, scholio septimo, scribit: “les sorcieres estre transportez d’un lieu en l’autre par Sathan pour le iour et heures le Ieudy environ la minuict, auquel seulement ils sont transportez comme trestous ont convenu en cela et confesse. Peut-estre, (hanc rationem ille subiicit) pour ce que le diable veut avoir les premieres, et estre recognu au premier rang de la semaine. Car les Turcs celebrent le vendredy, les Iuifs le Samedy, les Chrestiens le Dimanche, et quand à luy il s’est mis devant tous pour avoir la premiere celebration.”

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The monk Jean del Vaulx was reported as saying, among other things, that specific days were assigned for the appointed ‘congregation’, as he called it, when the fellowship would appear at its destined locations, and there, on his bended knees, he would worship an evil spirit who appeared in the form of a goat. In those places tables were heaped high with sumptuous dishes and good, tasty food, (because the tables were not empty); the more distinguished people at the top table—he said they were called ‘the gallants’—sat there with their wives; Beelzebub, Ashtaroth, (that is, Venus, who was the succuba of Jean himself), and Leviathan occupied the more important places at the top table, and even more evil spirits without a name sat at the second and third tables. They drank Beelzebub’s health and then, once their hunger had been sated, they raced to have promiscuous sex. When the time came for them to leave, the Evil Spirit gave them powders to throw into the air, so that they could spoil root-crops, vines, and growing corn, and after the powders were scattered, whirlwinds and storms heavy with filth were raised. I am not unaware that Seneca does not find this credible, because he says ‘In our case there is a warning in the Twelve Tables that no one must enchant someone else’s crops away. The olden days, which were still uneducated, used to believe that crops could be enchanted away, and that rain was attracted or driven away by incantations. But it is so obvious that none of this can happen at all that one does not have to enrol in any natural philosopher’s class to learn it.’ You, however, have proved that what Seneca says here is mistaken.233 Florimond de Raemond says that in Bordeaux witches [sortilegos] used to designate the Wednesday and Friday of every month for holding their chapter general, as those convicted of the crime of witchcraft [sortilegii] confessed.234 In the seventh explanatory note in his Pneumology, or ‘Discourse on Spirits’, Sébastien Michaëlis writes, ‘Witches [sorcières]235 are carried from one place to another by Satan on Thursday, (the day), and about midnight, (the time), which is the only time they are transported, as all those who have gathered there have confessed. Perhaps,’ (he adds by way of explanation), ‘[this is] because the Devil wants to have first place and to be acknowledged as ranking first in the week, since the Turks celebrate Friday, the Jews Saturday, and the Christian Sunday. So as far as he is concerned, [Thursday] puts him in front of them all and celebrates him first.’

233 234 235

Seneca, Investigations into Nature 4.7. The words ‘that crops could be enchanted away’ are a repetition which does not appear in Seneca’s text. Florimond de Raemond, (1540–1601), was a French jurist, best-known for his history of heresy in France in eight Books, which appeared posthumously in 1605. Specifically feminine.

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Quod de Pasete, natura molli, sed magia omnes superante ex Sudae historicis refers, idipsum inter adagia sua Erasmus retulit, ad quem, cum quid emeret et rei pretium venditori numerasset, nummus perpetuo redibat, idem carmine magico, convivium repente partibus omnibus instructum ac sumptuosum exhibebat, quod statim si libuisset evanescebat; potuit convivium fuisse verum non simulatum, fascinatum et imaginarium, cuius rei fidem faciunt convivia quibus adsidue Ioannes de Vaux interfuit, cuius confessio ab aliis quoque magicis et sortilegis probata. Tempore reverendiss. Georgii Austriaci Episcop. | Leodicens. (bonae memoriae) magister Hugo Bourlettus chirurgus insignis, et a medicis laudatus, multum similia factitabat; vinaque extraria Roma, ex Hispania, et aliis ex locis reipsa in mensa omnibus demirantibus repraesentatis poculis exhibebat; vivunt adhuc horum actuum testes compertae fidei, at ille postea ad meliorem mentem reversus, maleficiis abstinuit, et ex impio factus pius; quique diebus singulis sacris operabatur. Reverendiss. Cardinalis a Groesbeeck; eum in familiam suam recepit; obiit autem valde pie, et Catholice, ab annis octo, et quod excurrit. Verissimum est quod in secunda parte operis tui scribis: Constantinum Imperatorem ad Bassum Praefectum urbi rescribentem, non usum verbo Coegisse, quod vero ais usum verbo deflexisse; ipse apud te dispice, anne, defixisse legendum sit, ita enim Theodosianus Codex habet; defigere sortilegorum verbum est; apud Ciceronem, quaecumque Augur, iniusta, nefasta, vitiosa, dira, defixerit (sic in melioribus Codicibus et ita quoque Lambinus) irrita infectaque sunto. Plinius defigi diris deprecationibus, nemo non (inquit) metuit. Ovidius (abs te etiam laudatus) Devovet absentes simulachraque cerea figit, et alibi: Sagaque Phoenicia defixit nomina caera. Quod ipsum non ignoravit, Accursius

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You mention, (taking it from the historians in Suidas), Pasetes and his mild character, who got the better of everyone with magic. (Erasmus mentions the same man in his Adages.) Whenever he bought anything and counted out the purchase-money for the vendor, the money would always come back to him, and by means of a magic spell he would suddenly display a banquet with all kinds of sumptuous covers, which would vanish the moment he wanted it to do so.236 The banquet could have been genuine, not one produced by fakery, by magically deceiving the eyes [of the bystanders], or by making people imagine they had seen it, and this leads one to believe in the banquets which Jean Del Vaulx assiduously attended, since his confession was proved true by other magicians and witches [sortilegos] as well. At the time of the Most Reverend George of Austria, Bishop of Liège, (of blessed memory), Master Hugo Bourlet, a distinguished surgeon held in esteem by physicians, frequently used to so similar things and, to everyone’s astonishment, would display wines from outwith Rome, from Spain and other places, along with cups which everyone could see actually there on the table, and witnesses to the trustworthiness of these events are still alive. Later on, however, he had a change of heart, stopped performing malefices, and turned from being irreligious to being devout, and used to devote himself to [good] deeds every day. The most reverend Cardinal [Gerard] van Groesbeeck accepted him into his household, and he died a good Catholic death eight years and more later. What you write in the second part of your work is perfectly true—that when the Emperor Constantine was writing in reply to Bassus, the City Prefect, he did not use the word ‘to have compelled.’ You say he used the word ‘to have turned.’237 Give a thought to whether one should read ‘to have cursed magically’, because this is what the Theodosian Code says. The word ‘to curse magically’ is used of witches: Cicero, ‘Whatever an augur has defined as malicious, profane, depraved, or threatening,’ (this is the reading of the better manuscripts, and also that of [Denis] Lambin), ‘is to be regarded as invalid and of no effect’; Pliny says, ‘No one is not afraid of being nailed down by dire curses’; Ovid, whom you also esteem, says, ‘She curses those who are absent and fashions images out of wax’, and elsewhere, ‘a wise-woman fixed my names

236 237

Del Río refers to Pasetes in Book 2, Question 6. Book 3, Part 1, Question 3, Section 2. The reference is to Justinian’s Codex 9.18.4.

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noster in exemplo abs se posito: in figendo carae imaginem, et in glossis Philoxeni defixiones Neciomantiae leguntur. Unde apud Paulum I.C. minus recte legitur Interficerent aut deficerent, legendum enim ut ex Codice Vesontino Cuiacius noster restituit defigerent, qui autem defixiones faciebant curiosi, vocabantur, unde apud Horatium curiosus pro malefico seu mago accipitur, qua de re videri poterit Cuiaci. Quod tu de puella Ioanna Lotaringia, idem plane censeo, eius gesta, et stratagemata, non sub Carolo sexto (uti scribis), sed sub Carolo septimo contigerunt (cuius rei testes advoca Paulum Aemilium. Monstreletum, Micquellum, Girardum et alios); Virago illa obscuri generis in Barrensi Ducatu Iacodo Dareo patre, ac Isabella matre nata, Divino afflata numine rem inclinatam fortiter restituit; Anglos ubique perfidos, Francia eiecit; Carolum Septimum Remos ungendum sacrandumque perduxit; illique, ut ratum firmumque Imperium more maiorum esset, effecit; Aurelianensem urbem gravi obsidione liberavit, vidi eius statuam aeneam Aureliae in ponte ad Ligerim servatae a vi ragine et virgine

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on crimson wax.’238 In modern times, [Francesco d’] Accorsio was well aware of this and provided an example: ‘in fixing an image made of wax,’ and in the glosses to Philoxenus one reads, ‘the curse-tablets of necromancy.’ Consequently, the reading ‘so that they could kill’ or ‘that they could cease’ in Paulus, a legal expert [quoted in the Digest], is less correct, because [Jacques] Cujas has restored the proper reading, ‘so that they could nail down’, from the Codex Vesontinus. Those who used to make curse-tablets were called ‘people who pry’, and hence in Horace, ‘a meddlesome man’ stands for a worker of harmful magic or a magician, as one will be able to see from Cujas.239 I fully agree with what you say about Jeanne [d’Arc], the girl from Lotheringia, but her deeds and generalship belong, not to the reign of Charles vi, as you write, but to that of Charles vii. (Summon to the bar Paolo Emiliano [da Verona], [Enguerrand de] Monstrelet, [Joannes Ludovicus] Micquellus, [Bernard de] Girard, and others as witnesses.)240 That female warrior came from an obscure family in the Duchy of Bar. Her father was Jacques D’Arc and her mother, Isabelle [Romée]. Breathed on by God’s divine power, she bravely rescued the situation from defeat. She threw the English—who are treacherous wherever they may be—out of France and brought Charles vii to Rheims to be anointed and consecrated. This she did so that his authority could be ratified and confirmed in accordance with ancestral custom. She also liberated the city of Orléans from a heavy siege. (I have seen a city monument, a bronze statue of her on the bridge over the river Loire in Orléans which was saved by the vir-

238

239

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Defixisse, means ‘to have nailed down’. This is a reference to curse tablets which were frequently pierced by nails in order to fix the tablet to some physical object, or to make the point that the curse was thereby rendered immovable from the object of its magic. Cicero, Laws 2.8.21 here illustrates the metaphorical meaning of someone’s ‘nailing something down’. Denis Lambin, (1520–1572), was a renowned French Classical scholar. His edition of Cicero was published in 1566. Pliny, Investigations into Nature 28.19; Ovid, Heroides 6.91 and Amores 3.7.29. Jacques Cujas, (1522–1590), was a French jurisconsult well-known for his emendations of legal texts. The Codex Vesontinus, (i.e. from Besançon), contained the opinions of Paulus, one of the Roman lawyers quoted in the Digest. Horace, Epodes 17.76–78 do not altogether support what is said here. The lines run, ‘I can make wax images move, as you yourself know, inquisitive man’. Del Río’s reference to St Jeanne d’Arc is in Book 4, Chapter 1, Question 3, Section 6. The mistake of vi for vii could easily have been a printer’s error. Paolo Emilio da Verona, (c.1455–1529), wrote an unfinished history of France. Joannes Ludovicus Micquellus seems to have produced a history of the siege of Orléans in Latin in 1560. It was later translated into French and published in 1631.

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urbis monimentum, caeterum dum in Compendii obsidione ex urbe erupit, ab hostibus comprehensa, et Rothomagum producta ad palum damnata, viva exusta est; non absque aeterno Anglici nominis probro, qui se magicis illius artibus Francia profugere falso querebantur. Admirandum sane est quod de illa affirmatur, pirum arborem, sub qua illa sedebat dum patris gregem minabat, ovesque ruri pascebat, cum ut Regem Carolum vii adiret, primo caelesti voce monita est; neque cariem, neque vetustatem sentire, neque fulmine tangi, neque pluvia, grandineve, aut nive intingi. Inquisitor, in Provincia Stabulensi apud acta probatum reperi, malum sub qua maleficae duxerant choreas, et saltatorium orbem versaverant, in quaque earum Auloedus Tybicenve consederat, foelicem ac frugiferam factam infelicem ac in frugiferam arborem vidi. Redeo ad Ioannem, quam ab Anglis flammis feralibus quasi maleficam ambustam refers; an eo | sensu exaudis haec verba Constantini ad populm feeralis pestis absumat? Iacobus Revardus existimat per illa verba nihil aliud voluisse Constantinum, quam maleficos igne consumendos esse, sed quia de Diis manibus, quibus ferialia sacrabantur accitis arte magica locutus sit; ideoque ferali peste, potius quam igne, huiusmodi homines absumendos rescripserit: “quamquam (inquit) non ignorem pestem feralem de supremo supplicio accipi posse, et veteres pro morte ac interitu pestem posuisse, unde apud Festum, pestiferum fulgur, quo mors exilimve significatur.” Dionysius Gothofredus, ignis quoque supplicium intelligit, quod magi Diis manibus consecrarentur, ut quemadmodum in feralibus pecudes absumeban-

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gin warrior.) However, during the siege of Compiègne she broke out of the city, was captured by the enemy, brought to Rouen, condemned to the stake, and burned alive, not without everlasting disgrace to the reputation of the English who put up the false complaint that they were being chased out of France by her magical practices. One must certainly be surprised at one thing that is claimed about her— that the pear tree under which she used to sit while she was driving her father’s flock and grazing the sheep in the countryside at the time Charles vii became king and she was first admonished by a voice from heaven, does not decay, does not age, is not touched by lightning, and is not soaked by rain, hail, or snow. As an inquisitor in the province of Stavelot, I found it proved, according to court records, that an apple tree under which the witches had held their dances and danced in a circle, and in which the man who played the flute and pipe for them had sat, which was once fertile and used to bear fruit, is now infertile and bears no fruit. (I have actually seen the tree.) I return to Jeanne whom you say was burned to death by the English as a worker of harmful magic. Is this the sense in which you understand Constantine’s words to the poplar-tree, ‘May a deadly disease carry you off’? Jacob Reyvaert thinks that by those words Constantine simply meant that workers of harmful magic should be burned, but that because he was talking about the gods of the dead to whom they used to sacrifice during the Feast of the Dead, and who were summoned by magic, he will have written that such people should be carried off ‘by a deadly disease’ rather than by fire, ‘although,’ (he says), ‘I am not unaware that “deadly disease” can be understood as the supreme punishment and the ancients could have taken “disease” to stand for death and destruction. Hence “deadly lightning” in Festus, by which is signified death or exile.’241 Denis Godefroy also understands ‘fire’ as ‘punishment’ because magicians would consecrate themselves to the gods of the dead in just the same way as

241

Jacob Reyvaert, (c.1535–1568), was a well-regarded jurist who lived and worked largely in Bruges, although he taught Roman law for one year (1565) at the University of Douai. The Roman Feast of the Dead was held on 17th or 21st of February. Del Río’s text here refers to it as feralia which means ‘weekdays’ and is clearly a misprint for Feralia. The quotation comes, (as Del Río tells us), from Reyvaert’s Five Books of Variants or Legal Ambiguities, Book 5, chapter 3, which was published in Bruges in 1564.

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tur, et ipsa cadavera, ita manibus consecrarentur, quos in carminibus suis invocassent. Ego vero per haec verba, pestis feralis absumat, intelligo maleficos et praestigiatores bestiis obiiciendos, quod ipsum Graecus interpretes notavit, probarunt quoque antiqui nostri iuris Interpretes, et maxime Odofredus: “magos (ait) feralis pestis absumat, quia sunt obiiciendi feris bestiis lacerandi;” sic quoque notavit Cuiacius: “feralis (inquit) pestis absumat, id est, bestiis obiiciatur, et, ut ego interpretor, feralis pastus absumat.” Matthaeus Coignetus utitur hac interpretatione: “que la peste cruelle les puis’ esteindre, et consumer, et pour telles sorcelleries Iehu fit manger au chiens la Reyne Iesabel.” Neronis tempore de Christianis tamquam sortilegis supplicium sumptum legimus, et hi aut feris, aut canibus obiiciebantur, aut crucibus figebantur, aut flammabantur, stantibus ad palum destinatis unco (ne moratione capitis picem cadentem declinarent) gutturi suffixo, e lamina ardente pix aut unguentum in caput liquifiebat; ita ut rivi pinguedinis humanae per arenam amphiteatri sulcum fecerent, eoque pertinet locus ille Iuvenalis Satyri prima. Pone Tigillinum, taeda lucebis in illa, Qua stantes ardent, qui fixo gutture fumant, Et latus mediam sulcus deducit arenam. Ita legendum contendit Schaliger, non vero: Et latum media sulcum deducit arena. Hactenus Oranus. In his quod de Ioannae aevo me monet amicus, verissimum, et memoriae lapsum agnosco lubens. De duobus aliis non video causam, cur sententiam mutem. Nam illud de Constantini rescripto deflectendi, voce usum, non cogendi, verum est, nec facile hic admiserim correctionem illam defigendi, tum quia libri omnes Codicis Iustinianaei quos vidi, continent pudicos ad libidinem deflexisse

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they would kill cattle during the Feast of the Dead and thus consecrate the corpses to the souls of the dead which they would have invoked in their magical chants.242 But by the words ‘May a deadly disease carry you off,’ I understand that workers of harmful magic and conjuring-tricks should be thrown to wild animals. The Greek translator noted this. The ancient interpreters of our law also agreed, especially Odofredus. ‘May a deadly disease carry off magicians’, he said, ‘because they should be thrown to wild beasts to be torn apart.’ [Jacques] Cujas also noted, ‘Let a deadly disease carry him off, that is, let him be thrown to wild beasts, and, as I interpret it, may deadly food carry him off.’ Matthieu Coignet translates it as follows. ‘May the cruel plague be able to snuff them out and consume them because of the kind of witchcrafts [sorcelleries] for which Jehu gave Queen Jezebel to the dogs for them to eat.’ We read that at the time of Nero, Christians suffered punishment as though they were witches [sortilegis] and were thrown to wild animals or dogs, or crucified, or set on fire while standing bound to a stake, their throat pierced by a hook so that they could not, with a movement of their head, escape the pitch which was falling on them; and that pitch or grease would melt on to their head from a red-hot piece of metal, the result being that streams of human fat made a trail along the sand of the amphitheatre. Juvenal’s first Satire is relevant to this. ‘Talk about Tigellinus and you will burn brightly on that pine-torch Where people stand and burn and give off smoke, with their throat pierced through, And a broad trail leads across the middle of the sand,’ [1.155–157]. (This is how Scaliger maintains it should be read, not ‘it leads a broad trail in the middle of the sand’.) Thus far [Pierre] Dheure. As for what my friend tells me about Jeanne’s time, it is perfectly true, and I willingly acknowledge my lapse of memory. But on two other points I see no reason to change my mind. The point about Constantine’s writing ‘turning aside’, not ‘compelling’, is correct and I do not readily accept its being corrected to ‘cursing magically’ here, (a) because all the copies of Justinian’s Codex I have seen contain ‘have turned 242

Denis Godefroy, (1549–1622), was a French jurist who turned Calvinist and was then Professor of Law successively in Geneva, Strassburg, and Heidelberg. The reference to Odofredus which follows in the next paragraph is to an Italian jurist of the thirteenth century.

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animos; tum quia C. Theodosianus a Ioanne Tilio primum editus hanc lectionem confirmat; tum quia Constantinus Harmenopulus, in huius legis breviario legit: “qui magicis artibus pudicos animos ad libidinem deflectunt, publicatione et exilio puniuntur;” tum quia defixio magica devotionis et execrationis quoddam genus fuit, et non animae permovendae, vel pervertendae, sed sanitati corporis perdendae instituta; nec satis Latine dicas animum defigi, sed deflecti in libidinem. De Ferali flamma, cum scriberem, nulla mihi cogitatio fuit legis illius Constantini, cuius initium multi. Sed ferales flammas funestas atque lethales nuncupabam, ut Minucius ferialia ligna, Symmachus, | ferialia commenta, Salvianus, peccatum feralissimum, noster ille decus orchestrae, ignem feralem, ratem feralem: locum feralem, saxum ferale, turbam feralem; alii alia, quos olim laudavi; quae vox a Fera, sive mortem, sive Parcam ita vocarunt. De Constantini tamen verbis, nondum mihi liquet, quid ille per pestem feralem, potissimum supplicii ultimi indixerit, illud quidem quod adiungitur, favet explicationi Graecorum, quoniam naturae peregrini sunt, quasi dicat: quoniam alieni ab humanitate, ideo belluis cedant. Sed ego ferale pro ferino, nondum reperi apud classicos scriptores, repugnat etiam syllabae modulus, in hoc citatus, in illo productior ac statarius. Ergo censeo potius, Constantinum eo loco dumtaxat definivisse, ut ultimo supplicio de medio tollantur, quam poenae genus exprimere voluisse. Nec arbitror semper eadem morte damnatos. Facit Ulpianus ut credam, lib. 7 De officio Proconsulis, sub titulo De Mathematicis et vaticinatoribus, dum ait: “et varie puniti sunt ii qui id exercuerunt, pro mensura scilicet et consultationis.” Ut vides lacuna subest, expleo: et modo consuliat. Quamquam Ulpianus de certo tantum mathesis huius vetitae genere id dicat, constat tamen non idem semper supplicium in aliis quoque generibus obtinuisse, ut nec in Christianos, qui non infrequentius a tyrannis exusti, quin et frequentius, quam

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chaste minds to licentiousness,’ [9.18.4.preface]; (b) because the Theodosian Code, first published by Joannes Tilius, confirms this reading; (c) in his abridgement of this law, Konstantinos Hermenopoulos reads, ‘those who by the arts of magic turn chaste minds towards licentiousness are punished by confiscation and exile,’243 and (d) because defixio magica was a kind of cursing and execration undertaken not to move or corrupt souls, but to destroy the health of the body. You cannot properly say in Latin that a mind is magically cursed into licentiousness, but that it is turned aside into it. When I was writing about the deadly flame, I was not thinking about that law of Constantine which begins ‘many people’, but was calling the deadly flames ‘fatal’ and ‘lethal’, as Minucius [Felix] does in his phrase ‘deadly firewood’, Symmachus in ‘deadly fabrications’, Salvianus in ‘a most deadly sin’, and the modern way of dignifying the stage as ‘a deadly fire’, ‘a deadly boat’, ‘a deadly place’, ‘a deadly rock’, and ‘a deadly uproar’. Other people whom I have praised in the past, [provide] other [examples]. They derive the word from ‘wild animal’ [ fera], meaning ‘death’ or ‘Fate’, but when it comes to the words used by Constantine, it is not yet clear to me why he especially designated the ultimate punishment as a ‘deadly disease’, and actually the phrase which is adjoined to it, ‘since they are foreigners to Nature,’ [9.18.4.6], favours the Greeks’ interpretation, as though he were saying ‘because they are foreigners to human nature, let them be given to brute beasts.’ But I have not yet found ‘deadly’ used to mean ‘connected with wild animals’ in Classical writers, and the length of the [first] syllable is short in the latter [ ferino] and longer and steady in the former [ ferale]. So, I think that in this passage Constantine simply determined that they be done away with by means of the ultimate punishment, rather than intending to designate the actual type of punishment. Nor, in my opinion were they always sentenced to the same kind of death. I think Ulpian makes this clear in Book 7, ‘the duty of a proconsul’, under the title ‘astrologers and soothsayers’, when he says, ‘those who did this were punished in different ways, that is to say, in accordance with the extent [of their offence] during their consultation.’ As you see, there is a lacuna which I fill out, ‘by the method [they employed] during their consultation.’ Even though Ulpian says this only of a certain kind of forbidden astrology, it is generally agreed that the same punishment did not apply in other instances, either, such as in the case of Christians who were not infrequently burned by tyrants—more frequently than they were thrown 243

Constantine Hermenopoulos, (1320–1380), was a Byzantine jurist. His epitome of the civil law was published more than once during the sixteenth century, in Köln 1547 and in Frankfurt am Main in 1564, for example. The Greek word στρέφοντες, ‘those who turn’, appears in the margin at this point.

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feris obiecti. Docent Tigillini taedae, et Tertullianici Semaxii. Cuperem doceri, Constantini tempore maleficos ferino pastu assumptos, nam de concrematione facile docuero. Lege Gregoriani codicis lib. 7, tit. De malef. et Manichaeis; invenies a Diocletiano et Maximiano eos addici, ut loquuntur: flammeis ignibus exurendos. Lege C. Theodosiani legem primam, quae Iustinianaei tertia est; reperies haruspices concremandos, ab ipso Constantino ad Maximum rescribi. Quid ergo vetat quominus feralem pestem ita sumamus? Nam Accursii, Odofredi, et Graecorum in iudicio Latinitatis non opinor sontica plane auctoritas, nec in Cuiacii verba iurarim libens, aut cuiuspiam alterius, hic quidem Raevardo et Gotofredo accedo proclivius, ut et Pet. Fabro, qui idem assent, Semestri. lib. 2, cap 7. Nam et apud Iul. Paullum, lib. 5, Sent., cap. 23, quamvis magicae artis conscii iubeantur summo supplicio affici (hoc est bestiis obiici, vel in crucem agi) ipsi tamen Magi vivi iubentur concremari. Sed res non tanti, ut plura putem verba commutanda. Addam ex Gallicanarum Curiarum actis nonnulla, quae nec in Francia quidem, Parlamenti Parisiensis illud iudicium receptum passim, aut omni tempore, satis ostendant; describam verba Gallica, ne quis me de meo quid affinxisse, vel perperam transtulisse suspicetur. Ex actis iudiciariis Episcopi Belluacensis, contra Iohannam Daream vulgo vocatam, Iehanne lapucelle (haec acta exstant in Monasterio S. Victoris Canonicorum Regularium Parisiis) quae fuse referunt Bernard. du Girard in Annalibus Franciae sub Carolo vii et Franc. Belleforestus in eiusdem Caroli vii vita a fol. 345.

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to wild animals, as Tigillinus’s pine-torches and Tertullian’s split-axles tell us. I should like to be told that, during Constantine’s time, workers of harmful magic were executed by becoming food for wild animals, because I can easily produce [examples] of their being burned. By a law in Book 7 of the Gregorian codex, under the title ‘workers of harmful magic and Manichees’, you will find that they were ‘made over’, as the saying goes, ‘to be burned by flaming fires’ by Diocletian and Maximianus. In the Theodosian codex, (law one: law three in Justinian), you will find that, according to a law written by Constantine himself in a reply to Maximus, soothsayers [haruspices] are to be burned. So, what prevents us from understanding ‘deadly disease’ in this sense? Now, obviously I do not think the authority of Accursius, Odofredus, and the Greeks is a serious consideration in coming to a judgement about Latin style, and neither should I willingly swear to what [Jacques] Cujas or anyone else says. But in this instance I am more inclined to agree with Reyvaert and Godefroy, and also with Pierre du Faur [de Saint-Jory] who, in Book 2, chapter 7 of his Six-Monthly Collections says the same as they do, because in Book 5, chapter 23 of Julius Paulus’s Sentences, although accomplices in the practice of magic are ordered to suffer ‘the ultimate punishment,’ (that is, to be thrown to wild beasts or be crucified), the magicians themselves are ordered to be burned alive.244 Still, the subject is not of such great importance that I think more words would make a difference. Let me add several pieces of information which are taken from the records of the French courts and show that, even in France, the judgement of the Parlement de Paris we were talking about was not well received everywhere, or on every occasion. I shall copy them down in French so that no one can suspect that I have made anything up or have translated anything incorrectly. From the judicial records of the Bishop of Beauvais against Jeanne d’Arc, commonly called ‘Jeanne the Maid’. These records are in the Monastery of the Canons Regular of St Victor in Paris and are used extensively by Bernard du Girard in his annals of France during the Reign of Charles vii and François de Belleforest in his life of Charles vii, (folio 345ff.).245 244

245

Pierre du Faur de Saint-Jory (c.1540/41–c.1600) was a French jurist. He studied law at Bruges under Jacques Cujas and later became President of the Parlement de Toulouse. He published his Six-Monthly Collections of Imperial Ordinances (‘Libri Semestrium’) separately in three volumes: Book 1 in 1570, Book 2 in 1575, and Book 3 in 1595. Julius Paulus (floruit late second-early third century ad) was a major contributor to the Digest. The Sententiae referred to here, however, were attributed to, rather than written by him. Bernard de Girard (c.1535–1610), L’Histoire Générale des Rois de France jusqu’à Charles ix, published in Paris in 1576 and Francois de Belleforest (1530–1583), Histoire des Neufs Charles, published in Paris in 1568.

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Cum prope Compendium potita esset hostium, Parisiensis Universitas litteris publicis eam apud Henricum Angliae regem accusavit sortilegii et maleficii; causae praetensae fuere se|quentes, quae etsi falso praetexebantur, ostendunt tamen sensum Ecclesiasticae Curiae, et almae Academiae illius temporis. Promotor itaque fiscalis, quidam Guilhel. de Estivel, aut, ut in Actis et in sententia Delegati Apostolici vocatur, Ioannes de Estivel, ubi in art. 4 dicitur arbor quaedam fuisse apud Dompreum, ubi solitae convenire maleficae et misceri daemonibus: “Que pres de Domprein y a un grand et vieux arbre, qu’on nomme l’Arbre charnime Fée de Bourlimoni, et que apres de cest arbre y a une fontaine, pres laquelle on dict que frequentent les malins espirits avecque les quels se meslent de nuict les sorciers dansans et gambadans autour desdicts arbre et fontaine. Artic. 5: que le susdicts arbre et fontaine, sont surnommez des Fêes. Aussi luy deman-doyent, si esse avoit cognoissance de ceux ou celles, qui certains iours de la sepmaine vont au Sabbat avec les Fêes. Respondit avoir ouy dire qu’on y alloit le Ieudy. Artic. 6: quelle alloit audict arbre les heures qu’on celebroit le divin service, a fin que estant lors seulle elle peut a son ayse danser et caroler autour des lieux susdicts, ou elle faisoit plusieurs bouquets et chapeaux des fleurs et herbes plus soëfues, qu’elle trouvoit és environs, et encouronnoit ledit arbre en chantant certains vers, et disant quelques mots de sortilege, et y retournant l’endemain, quoy que le soir esse y eust mis lesdicts chapelets et guirlandes, si est-ce qu’elle ny trouvoit chose quelcunque. Artic. 7: Qu’elle soulloit porter en son sein de la mandragore, esperant par ce moyen en avoir bonne fortune, tant en richessis, qu’en autres choses temporelles: comme si la mandragore avoit en soy telle efficace. Artic. 19: Avoir pris conseil des malins espirits, et que par enchantemens, et moyens non permis, et illicites, elle avoit descouverte certaine espee, qui estoit en l’Egise de saincte Catherine du Fierbois. Artic. 20: Avoir eu des anneaux charmez, et qu’elle dit quelques paroles sortilegues sur son enseigne, et sur les guidons que portoyent les siens, disant que cela servoit pour leur donner bonne fortune en guerre, usant de grandes coniurations, a fin que par ce sort elle bienheurast leurs entreprises; tenant pour tout certain, que tant qu’ils porteroyent ces drapeaux ainsi coniurez, ils ne pouroyent recevoir aucune deffaicte par leurs adversaires. Et qu’elle se plaignit publiquement a Compeigne lors qu’elle fust prise, de ce que les siens avoyent oublié d’aporter

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When the enemy captured her near Compiègne, the University of Paris accused her, in an open letter addressed to Henry, the King of England, of divination [sortilegii] and malefice. The alleged reasons were as follows, and even if they were embroidered with falsehoods, they show the feeling of the ecclesiastical court and the University at that time. The fiscal promotor was one Guillaume d’Estivel or, as he is called in the records and the opinion of the Apostolic Legate, Jean d’Estivet.246 In article 4 there is said to have been a tree in Domrémy where women who practise harmful magic [maleficae] used to meet and have sex with evil spirits. ‘Near Domrémy there was a tall old tree popularly known as the enchanting fairy [tree] of Bourlémont, and near this tree there is a spring which people say is frequented by evil spirits with whom the witches [sorciers] have sex at night, and dance and gambol round the said tree and spring’. Article 5: ‘The said tree and spring are also said to belong to fairies. [The prosecutors] also ask her if she knew [named] men and women who on certain days of the week went with the fairies to the Sabbat. She answered she had heard it said that people went there on a Thursday.’ Article 6: ‘She used to go to the said tree at the hours when the divine office was being celebrated so that, since she was alone, she could dance and sing round the said places at her leisure; or she would make several bouquets and garlands of the flowers and blown herbs she found round about them, and would hang them on the said tree while she chanted certain verses and said some magic words; and when she went back the next day, even though she had put the said chaplets and garlands there the previous evening, she would not find anything at all.’ Article 7: ‘She used to wear some mandragora on her bosom, hoping thereby to have good luck—riches as well as other temporal things—as if the mandragora had the innate power to do this.’ Article 19: ‘After consulting evil spirits, and by means of spells and other forbidden, illicit means, she had discovered a sword which was in the church of St Catherine-de-Fierbois.’ Article 20: ‘She had some charmed rings, and said several magic words over her own flag and over the banners her soldiers carried, saying that that served to give them good luck in war, and she used great incantations so that by these means she could bless their enterprises, regarding it as entirely certain that as long as they carried these flags which had been enchanted this way, they could not be defeated by their enemies. She also complained publicly at Compiègne when she was captured that her soldiers had forgotten to carry these flags and that that was why she had fallen into this 246

There is confusion here. Guillaume d’Estouteville was the Papal Legate and Jean d’Estivet the prosecutor. A marginal note seems to make it clear that the confusion arose with Belleforest. The fiscal promotor was an official appointed to oversee discipline in the conduct of a trial.

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ses enseignes, et que pource elle estoit tombee in ce malheur. Pource que ceux qui s’aydant d’artz defenduz, et soubs bon pretexte pretendent authoriser leur perversité, ont de coustume de consacrer les instrumens desquels ils s’aydent. Artic. 36: Que par quelque sort et invocation elle avoit faict paroistre quelque malings espirits au Roy et Ducq de Bourbon pour les seduire.” Propter haec Universitas Parisiensis, et Iudices illi priores, iudicarunt Ioannam sortiariam fuisse, et maleficam, aperte docentes se arbitrari, huiusmodi crimina, non illusione aliqua, sed vere a criminosis huiusmodi committi solita. Idem censuit Episcopus Ebroicensis in causa Guilhelmi Edelini, ut superius docui. Idem Inquisitio Avinionensis in causa plurimorum quorum damnationes formulam suo loco exhibui paullo ante. Idem est iudicium Parlamenti Burdegalens. et fuit Consilii Atrebatens., quo tempore adhuc Artesii ad Parisiensem curiam appellabant; utriusque rei probationi clarissimae sunt quae subiungam, Remundi, et Monstreleti verbis. Extractum ex libro Viri Clariss. Florimundi de Remundis Consiliarii Regii in Senatu Burdegalensi, cuius libri haec est Epithesis et inscriptio: l’Antichrist. cap. 7, num. 5: “Tous ceux qui ont laissé quelques marcques du temps que l’Antichrist doit arriver, escrivent que la sorcelerie sera lors espandue par tout, eust elle iamais tant de vogue qu’en ce malheureux siecle icy? Les sellettres de nostre Parcament en sout toutes noircies. Il n’en y a pas assez pour les ouïr. Noz Conciergeries en regorgent, et ne se passe iour que noz iugemens n’en soyent ensanglantez, et que nous ne revenions tristes en noz maisons, espouvantez des choses hideuses, et effroyables qu’elles confessent. Et le diable est si bon maistre, que nous ne pouvons envoyer sigrand nombre au feu que de leur cendres il n’en renaisse de nouveau d’autres. Ie me contenteray de ceste Historie prodigieuse, advenue l’annee 1594, laquelle surmonte toutes celles que Bodin a remarquees dans sa Demonomanie, voila peurquoy i’en ay voulu faire le recit particulier. Une Ieune femme, nommé Ieanne Bosdeau, appellante du Iuge ordinaire de la Chastellenie de Sallignac en Lymosin, qui l’avoit condamnée à la mort, estant ouye en la chambre criminelle, sans peine ne tourment, confessa (comme elle avoit faict pardevant le Iuge). Qu’en son ieune aage un Italien l’avoit desbauchee et amenee la veille de de S. Iean sur la minuict dans un champ, ou il fit

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misfortune, because those who help with the arts of defence, under the pretence that they are increasing their influence, are in the habit of consecrating the implements of the people they aid.’ Article 36: ‘By some kind of spell [sort] and invocation she had made evil spirits appear to the King and the Duc de Bourbon in order to lead them astray.’ Because of this, the University of Paris and the first judges I mentioned concluded that Jeanne was a diviner and a witch, and said openly that they thought that this kind of crime was not usually committed by way of illusion but in reality by criminal types such as she. The Bishop of Évreux thought the same in the case of Guillaume Edelin, as I pointed out earlier, and the Inquisition at Avignon thought the same in the case of a very large number of people, the wording of whose sentences I gave a little earlier in their proper places. The judgement of the Parlement de Bordeaux is the same, as was that of the Conseil d’Artois at a time when the people of Artois were still taking cases to the court in Paris, and what I am going to add, (in the words of [Florimond de] Raemond and [Enguerrand de] Mostrelet), provides a very clear proof of both. An extract from a book by the most distinguished Florimond de Raemond, Royal Councillor in the Parlement de Bordeaux. The subject-matter and title of the book is The Antichrist, (chapter 7, number 5.)247 ‘All those who have left some indications of the time when the Antichrist should arrive write that witchcraft [sorcellerie] will be widespread everywhere. Has there ever been such a wave of them as in this unfortunate century? The benches for the accused in our Parlement are blackened with them and there is not enough time for their cases to be heard. Our conciergeries abound with them and not a day passes but the decisions of our courts are made bloody with them, and we come back home gloomy, terrified by the dreadful things they confess; and the Devil is so much in control that we cannot send so great a number of them to the fire but that their ashes give birth to others. I shall content myself with the following extraordinary anecdote which comes from the year 1594 and overtops all those Bodin has noted in his Madness of Evil Spirits, which is why I wanted to tell this story in particular. A young woman by the name of Jeanne Bosdeau, who was appealing [the decision of] the regular judge of the castellany of Salignac in Limousin, who had sentenced her to death, was heard in the criminal court. Without duress or torture she confessed, (as she had done before the judge), that when she was young and Italian had debauched her and brought her, on St John’s eve,

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Florimond de Raemond (1540–1601). His L’Anti-Christ was published in 1597.

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avec une verge de hous un grand cerne, marmotant quelques paroles, qu’illisoit dans un liure noir. Surquoy survint, un bouc grand et cornu, tout noir, accompagné de deux femmes, et tout aussi tost un homme habillé en prestre. Le bouc s’estant enquis de l’Italtien qui estoit ceste fille, et luy ayant respondu, qu’il l’avoit amenee pour estre des siennes, il luy fit faire le signe de la croix, de la main gauche, puis commanda a tous de le venir salver. Ce qu’ils firent luy baisant le derrier. Ce bouc avoit entre les deux cornes une chandelle noire allumee, à laquelle les autres alloyent allummer les leurs. Et lors qu’ils l’adoroyent on iettoit dans un bassin de l’argent. Ceste femme s’estant depuis retrouvee au mesme lieu, le bouc luy demanda un bouquet de ses cheveux, lesquels l’Italien coupa, et les luy bailla. Le bouc l’ayant retiree part, la coucha dans le bois, et la cogneut charnellement, a quoy elle prennoit un extreme deplaisir, souffroit beaucoup de douleurs, sentant la semence aussi froide que glace. Tous les mercredis et vendredis, de chasque mois, le chapitre general se tenoit au Puy de Dome, ou elle s’estoit trouvee une infinité de fois, avec plus de soixante autres personnes, tous lesquels portoyent une chandelle noire, qu’ils allumoyent à celle que le bouc avoit entre ses cornes, à laquelle il avoit donne le feu, le tirant au dessonbs de sa queüe. Apres cela tous se mettoyent en dance en rond, le dos toure l’un a l’autre. En ceste assemblee on disoit la messe a leur mode, tournant le dos a l’autel. Celuy qui faisoit l’office, (qu’elle nomma) estoit revestu d’une choppe noire sans croix, eflevant une tranche ou rond de rave tainte en noir, au lieu de l’hostie, criant tout lors de l’elevation: Maistre, ayde nous. On mettoit de l’eau dans le calice au lieu de vin, et pour faire, l’eau beniste, le bouc pissoit dans un trou a terre, et celuy qui faisoit l’office en arrousoit les assistans avec un asperges noir. En ceste assemblee on distribuoit les mestiers de sorcellerie, et chacun rendoit compte de ce qu’il avoit faict, les estats estoyent pour empoisonner, ensorceler, lier, guerir maladies avec charmes, faire perdre les fruicts de la terre, et telles autres meschancetez, ceste miserable confessa tout cela, avec une merveilleuse franchise | et naïfuete, car pour une femme rustique elle avoit bon esprit, persistant tousiours mesmes dans le feu, auquel par arrest elle fust condemnee. Beza, n’estoit pas bien informé, lors qu’en sa chaire il taxa nagueres nostre Parlament d’Incredulite, et de peu de foy, par ce, disoit-il (et cecy tien ie d’un Gentilhomme d’honneur, qui l’ouyt) que nous n’osions condamner les sorcieres a la mort, nos Registres tesmoignent le contraire.”

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at midnight to a field where he made a big ring248 with a wand of holly while muttering several words which he read from a black book. Whereupon there appeared a large, horned goat, entirely black, accompanied by two women and, along with them, a man dressed as a priest. The goat asked the Italian who the girl was and [the Italian] answered that he had brought her to be one of his women. [The goat] made her cross herself with her left hand and then told everyone to come and greet him. This they did by kissing his backside. Between his two horns this goat had a lighted black candle from which the others lit theirs. When they were worshipping him, they threw money into a bowl. This woman met him again in the same spot and the goat asked for a lock of her hair. The Italian cut it and gave it to him. The goat drew her to one side, laid her down in the wood, and knew her carnally. She took no pleasure in this, suffered a lot of pain, and had the feeling his semen was as cold as ice. Every Wednesday and Friday each month their general chapter was held in Puy-de-Dôme where she found herself countless times with more than sixty other people, all of whom carried a black candle which they lit from the one the goat had between his horns, which he had lit, drawing fire from under his tail. After that everyone started to dance in a circle, with their backs turned to each other. During this assembly, Mass was said after their fashion, with their backs to the altar. The celebrant, (whom she named), was vested in a black cope without a cross. In place of the Host, he raised a slice or round of radish which was dyed black and, during the elevation, yelled, “Master, help us!” Water instead of wine was put in the chalice, and to make holy water the goat pissed into a hole in the ground and the celebrant sprinkled his assistants with it, using a black aspergillum. During this assembly, means of carrying out witchcraft [sorcellerie] were distributed, and each person gave an account of what he or she had done—the opportunities for poisoning, bewitching [ensorceler], binding, curing illnesses with charms, causing the loss of crops, and other such mischiefs. This wretched woman confessed all that with a remarkable frankness and naivety, because for a peasant woman she was spirited and persisted all the time, even in the fire to which she had been sentenced after her arrest. [Theodore] Beza was not well-informed when, from his pulpit, he recently accused our Parlement of scepticism and little faith because, he said—and this is what I was told by a gentleman of honour who heard him—we did not dare sentence witches [sorcières] to death. Our records bear witness to the contrary.’

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A marginal note here says, ‘he means a circle’.

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Aliud ex lib. 2 Historiarum de Enguerran de Monstrelet: “En ceste annee (1459) en la Ville d’Arras, au Pais d’Artois, advint un terrible cas et pitoyable, que l’on nommoit Vaudoisie, ne sçay pourquoy, mais l’on disoit que ce estoyent aucunes gents, hommes et femmes, qui de nuict se transportoyent par vertu du diable des places, ou ils estoyent, et soudainent se trouvoyent en ancuns lieux arriere des gens, et bois, ou es desers, la ou ils se trouvoyent en tresgrand nombre hommes et femmes; et trouvoyent illec un diable en forme d’homine, duquel ils ne veoyent iamais le visage, et ce diable leur lisoit, ou disoit ses commandemens, et ordonnances, et commemt et par quelle maniere ils le devoyent adorer, et servir, puis faisoit par chacun deux baiser son derriere, et puis il bailloit a chacun un peu d’argent, et finablement leur administroit vins, et viandes en grad largesse, dont ils repaisoyent; et puis tout a coup chacun prenoit sa chacune; et en ce point s’estaindroit la lumiere et cognoissoyent l’un l’un l’autre charnellement; et ce fait, tout soudainement se retrouvoit chacun en sa place, dont ils estoyent partis premierement. Pour ceste folie furent prins et emprisonnez plusieurs notables gens de laditte Ville d’Arras, et autres moindres gens, femmes folieuses et autres, et furent tellement gehinez et si terriblement tormentez, que les uns confesserent le cas leur estre tout ainsi advenu, comme dit est, et outre plus confesserent avoir veu et cogneu en leur assemblée plusieurs gens notables, Prolats, Seigneurs, et autres Gouverneurs de Baillinges, et de villes; voire tels selon commune renommée, que les examinateurs et les Iuges leur nommoyent, et mettoyent en beuche, si que par force de peines, et de tormens ils les accusoyeut, et disoyent que voirement il les y avoyent veuz. Et les aucuns ainsi nommez, estoyent tantost apres prins, et emprisonnez et mis a torture, tant et si treslonguement, et par tant de fois que confesser le leur convenoit, et furent ceux-cy qui estoyent des moindres gens executez, et brulez inhumainement, aucuns autres plus riches et plus puissans, se rachepterent par force d’argent, pour eviter les peines, et les honte que l’on leur faysoit. Es de tels y eust des plus grans, qui furent preschez et seduits par les Examinateurs, qui leur donnoyent à entendre et leur promottoyent s’ils confessoyent le cas, qu’ils ne perderoyent ne corps ne biens. Tels y eust qui souffrirent en mervelleuse patience, et constance les peines et les tormens, mais ne voulerent rien confesser à leur preiudice, trop bien donnerent argent largement aux Iuges, et à ceux, qui les pouvoyent relever de leur peines, autres y eust qui se absenterent et uvyderent du Pais, et prouverent leur innocence, si qu’ils demeurerent paisibles. Et ne faict icy a taire ce que plusieurs gens de bien cogneurent assez, que ceste maniere de accusation fut une chose controuvee par aucunes mauvaises personnes, pour grever et

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Another [example] comes from Book 2 of Enguerrand de Monstrelet’s History. ‘This year (1459), a dreadful, pitiful event took place in the town of Arras in the region of Artois. (It was called ‘Vaudoisie’, I do not know why). It was said that a number of people, men and women, transported themselves by the power of the Devil from the places where they were, and suddenly found themselves several leagues away from people, in forests or uninhabited places, where they discovered a large number of men and women gathered together. With them was a devil in the form of a man, whose face they never saw. This devil read to them, or repeated, his laws and commandments and told them how they were to worship and serve him. Then each person kissed him twice on his backside and he gave each of them a small sum of money. Finally, he regaled them with plenty of meat and wine. Then, all of a sudden, each male selected a female, the light was extinguished, and everyone had sex. When this was over, each person suddenly found himself back where he had first come from. As a result of this madness, several of the principal persons of the said town were arrested and imprisoned, and other people of less importance— silly women and others—were so tormented and so dreadfully tortured that some confessed that this had happened to them exactly as has been described. Furthermore, they confessed they had seen and recognised many persons of rank—prelates, nobles, town and district governors, (that is, those who were well-known in the community at large)—as having been present at their meetings. The judges and examiners produced names and put names into their mouths, with the result that because of their pains and torments they accused them and declared they had actually seen them there. Those who had been named this way were arrested and imprisoned straight away, and so badly and so frequently tortured that they confessed whatever their judges wanted. Those from the lower ranks of society were executed and burned in a barbarous fashion. Others, who were richer and more powerful, bought themselves off by dint of their money, so as to avoid the pain and disgrace with which they were threatened, while others belonging to the upper classes were preached at and cajoled into confessions by the examiners who gave them to understand and promised that if they confessed what they had done, neither their person nor their property would suffer. There were some who suffered the severest tortures with the utmost patience and fortitude but were willing to confess nothing to their own prejudice and gave far too much money in generous amounts to the judges and to those who could relieve their pains. Others absented themselves and fled the country and proved their innocence, provided they were left unmolested. Here one must not fail to say that many worthy people knew perfectly well that this kind of charge had been contrived by a number of wicked

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destruire, ou deshonorer par ardeur de convoitise aucunes personnes, que ceux hayoyent de vieille haine; et que malicieusement ils firent prendre meschantes gens tout promierement, ausquels ils faisoyent par force de peine de tourmens, nommer aucunes notables gens, tels que l’on leur mettoit a bouche, lesquels ainsi accusez efloyent prins et tormentez, comme dit est; qui fust | pour voir au ingement de toutes gens de bien une chose moult perverse et inhumaine au grand deshonneur de ceux qui en furent notez, et au tresgrand peril des ames de ceux, qui par telz moyens vouloient deshonnorer gens de bien; et a tant fin de ceste matiere.” Ad hanc narrationem Monstreleti respexit Franc. Balduinus Atrebas Comment. in tit. 18, lib. 4, Institut. Iustiniani, fol. 774, his verbis: “sed quo gravius et ab hominis ingenio magis alienum est hoc malum, eo maior adhibenda est cautio, ne quis eius praetextu ab adversariis temere obruatur. Facile enim hic quidvis confingere potest ingeniosa simultas, ut et multitudinem credulam statim commoveat, et attonitos iudices irritet adversus eum quem cum daemonibus rem habere mentietur. Ante annos sexaginta sensit infoelix nostra patria, magno suo malo huiusce generis calumnias. Magna erat Valdensium mentio, quos adversarii iactabant nescio quid commercii habere cum immundis spiritibus. Huius criminis praetextu optimi quique statim opprimebantur. Sed tandem Parisiensis Senatus causa cognita, vidit meras esse sycophantias; infoelices reos liberavit, improbos sycophantas cum iniquis iudicibus damnavit. Exstatque adhuc eius hac de re memorabile arrestum editum vicesimo die mensis Maii, anno 1491.” Ita Franc. Balduinus et fieri potest ut in Attrebatensium iudicum processu iudicario odii, calumniae, crudelitatis, aut praecipitationis indicia nonnulla repererint, propter quae male iudicatum, rite vero provocatum, sententiam emendantes, Patres Parisienses pronunciarint. Et ideo non tam declararint Arresto suo, haec quae magis attribuuntur, et propria confessione illorum confirmantur, etiam cessante omni Quaestionum timore, inania et delusarum

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individuals out of a burning avarice in order to harass and destroy or disgrace a number of notable persons whom they hated with long-standing rancour. First of all, in mischievous fashion, they got hold of some nasty bits of work whom they tortured so severely that they forced them to name any notable person they suggested to them. Once these people were named, they were arrested and tortured, as I said before. Everyone of sense and virtue considered this depraved and barbarous, and a great dishonour to those who had done it and who wanted to dishonour good people by such methods to the great peril of their souls; and this is how the matter ended.’ François Baudouin from Arras harked back to this narrative of Monstrelet in Book 4, title 18 of his commentary on Justinian’s Institutes, folio 774.249 This is what he said. ‘But the more serious and further removed from human understanding this evil is, the more one has to exercise caution so that no one can be heedlessly overwhelmed by his adversaries who use this as an excuse. An ingenious grudge can easily fabricate anything for this purpose in order to whip up credulity in a large number of people instantaneously and incite terrified judges against him who, (so the lie goes), has dealings with evil spirits. Sixty years ago, my homeland felt it was unfortunate, because it was suffering great harm from this kind of slander. Great mention was made of Waldensians who, as their adversaries kept on saying, were having some kind of traffic with unclean spirits. Five very good people were immediately overwhelmed, with this crime’s being given as the excuse. But at length the Parlement de Paris heard the case and saw that it consisted entirely of lies, freed the unfortunate accused, and passed sentence against the shameless liars and the unjust judges. Its memorable judgement in this affair, published on 20th May 1491, still exists.’250 This is what François Baudouin says, and it is possible that, in the judicial trial conducted by the judges in Arras, they found several pieces of circumstantial evidence of hatred, slander, cruelty, or heedless haste, and because the trial had not been conducted properly, but had been appealed in proper form, the members of the Parlement de Paris delivered their verdict and altered the sentence. Consequently, by their judicial decision they did not so much make clear that the things which are attributed to magicians, (and which those people confirm by their own confessions, even when they have no more fear

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François Baudouin, (1520–1570), was a French jurist, a convert to Catholicism from Calvinism. His book on Justinian’s Institutes was published in Paris in 1545. On these cases, see further A.C. Gow, R.B. Desjardins, & F. Pageau, (eds), The Arras Witch Treatises, University Park, Pennsylvania: The Pennsylvania State University Press 2016, pp. 5–6.

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mentium esse (quae declaratio temeritatis plenissima foret), quam Iudices illos, a quibus appellatum, improbe et vi innocentiam oppressisse. De Waldensium quidem secta (quorum Albigenses ex stirpe fruticarunt) graves scriptores testantur, non immunem a fascinariorum haeresi et crimine pessimo illam fuisse, et nomen Gallicum fascinariis commune confirmat. Sed Balduinus ex Meiero sumpserat, qui ex Monstreleto ferme verbotenus in hunc modum: “Anno 1459 Atrebati horrendum quid contigisse legimus. Complures fuisse inhumaniter igne crematos, qui de nocte occultas coitiones habuere cum diabolo, unde magnam accepere pecuniam. Viri primarii mulieresque complures indiciis crematorum deprehensi; pars capti et saevissimis tormentis admoti, alii vi pecuniae redempti, nonnulli solum verterunt, quidam vero adeo in poenis constantes fuerunt, ut nihil confiterentur. Fuisse referuntur quidam ex iudicibus adeo detestabiles, ut quosdam sibi inimicos indicari curaverint, tanquam conscios, reis in tormentis ad hoc coactis. Addunt in nocturnis illis conventibus, ex omni ordine statuque mortalium viros mulieresque interfuisse, eosque ibi diabolum in humanam effigiem transformatum adorasse, cuius tamen nunquam videbant faciem. In illius verba mandataque iurasse. Convivio ab illo parato largiter epulatos, inde exstincto omni lumine quemque cum sibi proxime oblata promiscue concubuisse, sine ope diabolica in sua unde exierant loca restitutos.” Haec ille; arbitror in verbis ultimis negativam deesse non sine ope diaboli. Sane ex Meiero patet non opinionem convelli de maleficiorum solitis sceleribus, sed iudicum istorum crudelitatem et iniustitiam avaritiamque damnari; atque hoc arresti Parisiensis esse fundamentum. Quaeso nonne Parisiense Parlamentum iniuste iudicasset, nisi talium Iudicum vel Tyrannorum potius decreta rescidis|set? Nam de quaestione nostra, possintne perfici a Lamiis opera daemonum ea quae solitae sunt fateri? Id non a Iurisconsultis, sed a

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of being tortured), are the inanities of deluded minds, (and such a declaration would be extraordinarily rash), as that those judges from whom the appeal was made had borne down improperly and forcibly upon the innocent. As far as the Waldensian sect is concerned, (the Albigensians sprouted from its stem), weighty authors testify that it was not free from the heresy and particularly evil criminality of casters of the evil eye [ fascinariis], as the common French word for such people confirms. Baudouin, however, got his information from [Jacob de] Meyere who copied from Monstrelet almost word for word, as follows. ‘In 1459, we read, something dreadful took place in Arras. Several people who had secret meetings at night with the Devil and received a lot of money from him were barbarously burned to death. Leading citizens and several women were arrested on the evidence of those who had been burned. Some were subjected to very savage tortures after their arrest; others bought themselves off with money. Some fled the country, but a number of them remained so steadfast under torture that they confessed nothing. Some of the judges are said to have been so detestable that they made sure the accused were compelled, under torture, to point out some of [the judges’] enemies to them as accessories. They added that during these nocturnal meetings men and women of every rank and status were present, and that while they were there, they worshipped the Devil who had transformed himself so that he looked like a human being,251 although they never saw his face. They swore obedience to his words and commands. They feasted liberally at a banquet he had prepared and then every light was extinguished, and each man had sex with any woman who happened to be next to him. Then, without the help of the Devil, they were taken back to their own places from which they had come’.252 This is what he says. I think the last words lack a negative—‘not without the help of the Devil’. It is certainly clear from Meyere that [the Parlement’s] opinion about the usual crimes of workers of harmful magic is not being tossed away, but that the cruelty, injustice, and greed of those judges is being condemned, and this is the fundamental point of the Paris Parlement’s judicial decision. Wouldn’t the Paris Parlement’s judgement have been unjust had it not rescinded the decisions of such judges and tyrants? I ask this because, in relation to my investigation, is it possible for witches [lamiis] to carry out those works of evil spirits to which they habitually confess? This must be a decision,

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A marginal note here says, ‘Not, therefore, always in the form of a goat’. Jacob de Meyer (1491–1552) published more than one account of Flemish history: Flandricarum Rerum Tomi x in Anvers in 1531 and Compendium Chronicorum Flandriae in 1538, and his nephew edited and published Commentarii sive Annales Rerum Flandricarum in 1561.

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Theologis; non a saecularibus subselliis, sed ab Ecclesiasticis Tribunalibus fuit decidendum. Habetis ea de re apud Ioan. Gersonem Paris. Cancellarium, almae Theologicae Parisiorum facultatis articulos, eruditione et veritate plenos, nobis faventes. Accipite et aliud gravissimum Curiae Spiritualis Treverorum iudicium. Denique quia mentio a me facta sup. sect. 4, indicio 2, Losei Callidii, qui librum in Lamiarum Patrocinium conscriptum, mille machinis conatus fuit in publicum protrudere, et metuunt nonnulli, ne tandem cacodaemon aliquis id perficiat; duxi pro antidoto palinodiam eius adscribendam, cuius authenticum et originale (ut vocant) exemplum est penes pium et honestissimum virum, I.V. Licent. Ioannem Baxium (cuius studium atque zolus contra nefariam hanc haeresim Deum aliquando remuneratorem experietur) ab eo acceptum transsumptum fidi Notarii manu est huiusmodi. Ego Cornelius Loseus Callidius Goudae oppido Hollandiae natus, nunc ob tractatus aliquot de vera et falsa Magia, sine scitu et permissione superiorum huius loci, temere et praesumptuose scriptos, a me communicatos, deinde ad imprimendum Coloniam missos in Imperiali Monasterio S. Maximini prope Treviros, ex mandato Reverend. ac Illustriss. Domini Nuncii Apostolici, Domini Octavii Tricaricensis Episcopi, arrestatus atque detentus; cum certo sim informatus in supradictis libris, necnon in Epistolis quibusdam meis, eadem de re ad clerum et Senatum Trevirensem, aliosque clam missis (ad impediendum executionem Iustitiae, contra magos et veneficas) contineri multos articulos, qui non solum erronei sunt et scandalosi, sed etiam suspecti de haeresi, crimenque laesae Maiestatis sapiant; utpote seditiosi et temerarii, contra communem Doctorum Theologorum sententiam, decisiones ac bullas summorum Pontificum, contra praxim et statuta legesque magistratuum ac iudiciorum, tum huius Archidiocesis Trevirensis, tum aliarum Provinciarum et Principatuum; idcirco eosdem articulos, prout ordine hic subnectuntur, revoco, damno, reiicio, et pro non dictis atque assertis a me haberi volo. 1. In primis revoco, damno, reiicio ac improbo (quod saepe scriptis verbisque pertinaciter apud multos asserui, quodque tanquam huius disputationis

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not for legal experts but for theologians, not for secular judges’ benches but for ecclesiastical tribunals. You have, in connection with this, in the Parisian Jean Gerson, Chancellor of the Faculty of Theology in Paris, articles filled with learning and truth, which are favourable to my point of view. Learn, too, from another very weighty judgement, that of the spiritual tribunal of Trier. Finally, because earlier on, in section 4, evidence 2, I mentioned Cornelius Loos who tried, with a thousand stratagems, to thrust upon the public a book written in defence of witches [lamiarum], (and several people are afraid that some evil spirit may manage this in the end), I have produced, as an antidote to this, his recantation. The authentic and, as they call it, ‘original’ version belongs to a devout and most respectable man, Jean Bax, a licentiate of civil and canon law, whose enthusiasm and zeal against this criminal heresy God will reward one day, and I have received from him the following, transcribed by a trustworthy notary. ‘I, Cornelius Loos Callidius, was born in the town of Gouda in Holland. Because of several treatises on genuine and false magic,253 which were written without the knowledge and permission of my superiors here [i.e. Trier], and which I sent to other people to look at and then forwarded them to Köln to be printed, I have now been arrested and detained in the Imperial Monastery of St Maximin, near Trier, on the order of the most reverend and most illustrious Papal Nuncio, Ottavio [Frangipani], Bishop of Tricarico. I am reliably informed that the foresaid Books, as well as a number of my letters on the same subject, which were sent to the clergy and city council of Trier, and others, without my knowledge, (in order to hinder justice’s being carried out on magicians and female workers of poisonous magic), contain many articles which are not only mistaken and slanderous, but also suspect of heresy and smack of the crime of treason, in as much as they are seditious and indiscreet and run contrary to the general opinion of Doctors of Theology, the decisions and Bulls of Supreme Pontiffs, and the practice, statutes, and laws of the magistrates and courts of this Archdiocese of Trier and also of other provinces and principalities. I therefore revoke, condemn, and reject those same articles in the order in which they are here subjoined, and I wish them to be regarded as though I had not said and asserted them. (1) First of all I revoke, condemn, reject, and rescind something I often persistently asserted in writing and speaking in front of many people, and which I wanted to be the fundamental and (so to speak) prize-winning point of this 253

Loos published only part of a single treatise on this subject and under this title, so one must presume that his use of the plural here is a reference to the four Books which together made up the whole.

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meae caput ac palmarium esse volui) nimirum phantasticam esse, et tanquam superstitionem vanam pro figmentis habendam, quae de corporali magorum et sagarum evectione sive translatione scribuntur; tum quod haereticam pravitatem prorsus suboleat; tum quod seditionibus haec opinio admixta, proindeque laesae Maiestatis crimen sapiat. 2. Nam (quod secundo loco revoco) missis ad diversos clam litteris, contra magistratum pertinaciter absque solidis rationibus divulgavi, cursum magicum falsum esse et imaginarium; asserendo insuper torturae acerbitate miseras cogi ea fateri, quae nunquam fecerunt, dura laniena sanguinem innoxium fundi, nova alchimia ex humano sanguine aurum et argentum elici. 3. Ex quibus et id genus aliis, partim in vulgus per privata colloquia, partim diversis ad utrumque magistratum datis epistolis, superiores ac Iudices apud subditos Tyrannidis notavi. 4. Et consequenter cum Reverendissimus et Illustrissimus Archiepiscopus et Princeps Elector Trevir. non solum magos et sagas in sua diocesi suppliciis dignis affici sinat; sed etiam leges de ordine sumptibusque iudiciariis maleficarum ediderit; inconsulta temeritate praefatum Electorem Trevirensem Tyrannidis tacite insimulavi. 5. Revoco praeterea ac damno conclusiones hasce meas; non esse maleficos qui Deo abrenuncient, daemoni cultum exhibeant, tempestates inducant opera diaboli, et similia opera perpetrant, sed omnia esse somnia. 6. Ad haec magiam non dici maleficium, nec magos maleficos, et locum Exod. xxii (maleficos non patieris vivere) intelligi de iis qui veneno naturali naturaliter applicato occidant. 7. Pactum nullum esse, nec existere posse inter daemonem et hominem. 8. Daemones non assumere corpora. 9. Vitam Hilarion. a D. Hieron. scriptam non esse authenticam. 10. Nullum concubitum daemonis cum homine. 11. Nec daemones nec magos posse tempestates, pluvias, grandinem, etc. ciere, et mera esse somnia, quae de his dicuntur. 12. Spiritus et formam a materia separatam posse videri ab homine.

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debate—that what people write about the physical flight or transportation of magicians and wise-women [sagarum] should be considered as exceedingly fanciful, as meaningless superstition, and as figments [of the imagination]. [I reject this] because it very much smells of heretical perversity and because this notion is mixed up with sedition and therefore smacks of the crime of treason. (2) Secondly, I revoke what I said against the magistrates in letters I persisted in sending clandestinely and for no good reasons to various people in which I asserted that magical flight is untrue and imaginary and also that the unfortunate women are forced, by the severity of their torture, to confess things they have never done, and that because of this harsh butchery innocent blood is shed and, by means of a novel alchemy, gold and silver are conjured out of human blood. (3) For these reasons and for others of the same kind, partly via private conversation I have had with the common people and partly by means of various letters addressed to both secular and ecclesiastical magistrates, I have accused my superiors and the magistrates of tyranny towards those subject to their authority. (4) Consequently, since the most reverend and most illustrious Archbishop and Prince Elector of Trier not only allows magicians and wise-women [sagas] to suffer the punishments they deserve in his diocese but has also passed laws in relation to the procedure against women who work harmful magic [maleficarum] and the legal costs involved, it was with ill-advised temerity that I invented a charge of tyranny against the foresaid Elector of Trier. (5) In addition to this, I revoke and condemn the following conclusions of mind: that workers of harmful magic who renounce God, worship the Evil Spirit, cause storms with the help of the Devil, and carry out similar things, do not exist, and that they have dreamed all these things; (6) that, in addition to this, magic should not be called ‘malefice’ and magicians should not be called ‘workers of harmful magic’, and that the passage in Exodus 22, (‘You will not allow workers of harmful magic to live’), should be understood of those who kill in a natural way by the application of natural poison; (7) that no pact does or can exist between an evil spirit and a human being; (8) that evil spirits cannot assume bodies; (9) that the life of Hilarion, written by St Jerome, is not authentic; (10) that an evil spirit does not have sex with a human being; (11) that neither evil spirits nor magicians can raise storms, rain, hail, etc., and that what is said on this subject is merely the result of dreaming; (12) that spirits and form separated from matter can be seen by a human being;

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13. Temerarium esse affirmare, quod quidquid daemones possunt etiam magi possint eorum opera. 14. Sententiam illam, quod daemon superior inferiorem possit expellere, esse erroneam, et inferre iniuriam Christo, Luc. xi. 15. Pontifices in suis bullis non dicere, quod Magi et Malefici talia opera (ut supradictum est) perpetrent. 16. Pontifices Romanos dedisse facultatem inquirendi in maleficos, ne si contra fecissent, ficte magiae insimularentur, quemadmodum antecessores eorum aliquot vere magiae fuerunt insimulati. Has omnes et singulas assertiones cum plurimis calumniis, mendaciis et sycophantiis, in magistratus tam saeculares quam Ecclesiasticos, petulanter et inverecunde, falsoque profusis, quibus scripta mea de magicis scatent; expresse, scienterque condemno, revoco, atque reiicio; veniam de commissis a Deo et superioribus obnixe petens, et sancte promittens, quod in posterum nihil horum docebo, promulgabo, defendam, vel asseram, nec verbo, nec scriptis, per me vel alios, quocumque locorum me venire contigerit. Si contra fecero, subiicio me, exinde prout ex nunc, omnibus poenis iuris contra relapsos haereticos, refractarios, seditiosos, reos laesae Maiestatis; iniuriosos sycophantas publice convictos, necnon et in periuros statutas. Submitto me quoque correctioni arbitrariae, tam Archiepiscopi Trevirensis, quam aliorum quorumcunque magistratuum, sub quibus me degere contigerit, quique de meo relapsu et violata fide certiores facti fuerint, ut me pro meritis puniant in honore ac fama, bonis ac corpore. In quorum omnium fidem hanc meam praefatorum articulorum revocationem propria manu subscripsi, in praesentia Notarii et testium, Sic subscriptum, cornelius looseus callidius. Et denuo suscriptum. Acta sunt haec in Imperiali Monasterii S. Maximini extra prope Trevirim in Stuba Abbatiali, ibi|dem coram Reverendissimo, Reverendis, Venerabilibus et eximiis Dominis, Domino Petro Binsfeldio Episcopo Azotensi, Reverendissimi Archiepiscopi Trevir. Domini nostri clementiss. in spiritualibus Vicario generali et Reinero dicti Monasterii Abbate, Bartholomeo Bodegemio Delpho I.V. L. Curiae Ecclesiasticae Trevir. Officiali, Georgio Helffensterio ss. Theolog. Doct. Ecclesiae Collegiatae S. Simeonis, in civitate Treviren. Decano, et Ioanne Goimanno I.V. Doctore, dictae Ecclesiae Canonico, et curiae Trevir. sigillifero etc.

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(13) that it is ill-advised to maintain that, with their help, magicians can do whatever evil spirits can do; (14) that the opinion that an evil spirit of higher rank can drive out one of lower is erroneous and insulting to Christ, (Luke 11); (15) that in their Bulls, the Pontiffs do not say that magicians and workers of harmful magic do the kind of things mentioned above; (16) that the Roman Pontiffs have granted the power to investigate workers of harmful magic, and had they not done so they would be open to a false charge of [practising] magic, just as several of their predecessors had quite rightly been accused of doing. Each and every one of these assertions, together with the very large number of slanders, lies, and cunning deceits with which my writings on magic abound and which I was impudent enough, shameless enough, and untruthful enough to pour out against the magistrates, secular as well as ecclesiastical, I expressly, and in full knowledge of what I am doing, condemn, revoke, and reject; and I earnestly seek pardon of God and my superiors for what I have done. I also solemnly promise that in future I shall not teach, promulgate, defend, or assert any of these things at all, either verbally or in writing, by myself or via others, wherever I may happen to be. If I do the opposite, I subject myself thereafter, (just as I do from now on), to every penalty the law provides against relapsed heretics, the contumacious, the rebellious, those guilty of treason, and those who have been publicly convicted of being harmful back-biters, as well as [subjecting myself] to the statutes against perjurers. I also submit myself to the correction of the Archbishop of Trier at his discretion, and of any other magistrates under whose [authority] I happen to live, and who have been informed that I have relapsed and broken my word, so that they can punish me as I deserve in respect of my public office, my reputation, my property, and my body. In testimony of all this I have signed this revocation of the foresaid articles in my own hand in the presence of a notary and witnesses.’ Signed, Cornelius Loos Callidius, and signed again [by the witnesses]. This was done in the Abbot’s chamber of the Imperial Monastery of St Maximin not far outwith Trier in the presence of the following reverend, venerable, and eminent lords: the most reverend Peter Binsfeld, Titular Bishop of Ashdod, Vicar General of the most reverend Archbishop of Trier, our most merciful lord in spiritual matters; Reiner, Abbot of the said monastery; Bartholomaus van Bodeghem of Delft, licentiate of secular and ecclesiastical law and officer of the ecclesiastical court of Trier; Georg von Helffenstein, Doctor of Sacred Theology and dean of the collegiate church of St Simeon in the city of Trier; Joannes Colmann, Doctor of secular and ecclesiastical law and canon of the said church

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sub anno Domini 1592 more Trevir. die Linae 15 mensis Martii in praesentia mei Notarii infrasripti, et honestorum Nicolai Dolert, et Danielis Maier Reverendi Domini Abbatis respective secretarii et scribae, testium ad hoc specialiter vocatorum et rogatorum. Subscriptum adamus haec Tectonius, Notarius. Et inferius, Collatum cum suo originali repertum concordari per me infrascriptum Secretarium oppidi Antuerpiensis. G. kieffel. Habetis integram palinodiam; postea tamen iterum Bruxellae vice pastoram agens in Ecclesia S. Mariae de Capella, accusatus fuit de relapsu et post diuturnum carcerem dimissus, et (ut pertinacem dementiam intelligas) tertiam accusationem, denuo suspectus, morte praereptus, evasit, sed (quod dolendum) non paucos, homines tamen Physiologiae et Theologiae solidae, non satis gnaros stoliditatis huius reliquet sectatores. Qui utinam saperent; et quam temerarium atque noxium sit, Ecclesiae iudicio, unius Wieri haeretici deliria praeferre, tandem serio intelligerent.

∵ 433

martini del rio societatis iesu, etc. appendix ii seu responsio ad quaesita cuiusdam serenissimi principis. de modo procedendi contra striges seu veneficos. lectori s. Cum anno 1602 casu occurrente, variae in Principis Serenissimi supremo consilio quaestiones emersissent circa Veneficii probationem et quaestiones; petita

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and keeper of the official seal of the court of Trier etc.,254 in the year of our Lord 1592 (Trier style), Monday, 15th March, in the presence of me, the undersigned notary, and of the honourable Nicolaus Dolert and Daniel Maier, respectively secretary and copyist of the reverend Lord Abbot, witnesses summoned and invited particularly for this purpose. Signed, Adamus Heck Tectonius, notary. Below this, ‘I compared this with the original and found it to agree. Undersigned, G. Kieffelt, town clerk of the town of Antwerp.’255 You now have the recantation in full, and yet later on, when he was once again acting as a substitute parish priest in the Church of St Marie de la Chapelle, he was accused of relapsing and released after a long imprisonment. Suspected yet again, (to let you know how obstinate he was in his insanity), he escaped a third charge against him because he was carried off prematurely by death. I am sad to say, however, that he has left behind not a few people who are inadequately versed in natural philosophy and sound theology and are supporters of this obtuse way of thinking. If only they would be sensible and finally come to a serious realisation of how ill-advised and harmful it is to prefer the ravings of a single heretic, [Johann] Weyer, to the considered judgement of the Church!

∵ Appendix ii, or, the Reply of Martín Del Río of the Society of Jesus to the Questions of a Most Serene Prince about the Way to Proceed against Witches [striges] or Workers of Poisonous Magic [veneficos].256 To the Reader, greeting. There was a court case in 1602 and various questions arose in the High Council of a Most Serene Prince about the examination and investigation of an act

254 255 256

The published texts of the Disquisitiones have ‘Golmann’, but this is a printing error. A ‘Joannes Colmann’ is recorded in Trier in 1591. This will have been George Kieffelt, a member of a distinguished family of lawyers and senior officials in Antwerp. This section is preceded in the various 1608 editions by a summary of the questions. It is omitted here because the questions and their full answers are given below and including the summary would give rise to unnecessary repetition. The serene prince in question is Maximilian i of Bavaria.

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fuere variarum Academiarum Consilia, ad me quoque scriptum eadem de re; postquam responderam, missa mihi apographa eorum quae ab aliis rescripta fuerant. Quibus lectis censui paullo fusius rem totam, quae Disquisitionum Magicarum mearum libro v multum lucis adlatura, de novo examinandam, et accuratius sententiam meam, qua explicandam, qua confirmandam. Fruere, Lector, et Vale. quaestio i An denunciatio plurium per se sit indicium sufficiens ad torturam, absque aliis indiciis aut adminiculis. Affirmativam tenui de complicum denunciatione (nam quoad denunciationes virorum alias proborum, qui participes criminis non sunt dubitari nec solet, nec debet); de plurium inquam denunciatione complicum idem tenui lib. 5 Disquisit. Magicar., sect. 3. § ad torturam. Sed quia nonnulli non recte mentem meam assecuti fuerunt, operepretium fuerit eam hoc loco paullo accuratius explicare, ne quis fallatur eorum, quibus tanti mea, ut legere non dedignuntur. Hac de re, quae discutitur, scripseram olim: d. sect. 3 a vers. secundum indicium est nominatio socii, paullo ulterius usque ad vers. quartum indicium est; pro instituta brevitate satis multa; pro desiderio et capacitate lectorum, non satis forte dilucide quaedam.

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of poisonous magic [veneficii].257 Advice was sought from various universities and I, too, received a letter on the same subject. After I had replied, I was sent copies of what the others had written in reply, and after reading them I came to the conclusion that I should re-examine the whole subject in greater detail, (which would contribute a lot of light to Book 5 of my Investigations into Magic) and explain and corroborate my opinion with greater nicety. Enjoy it, Reader, and goodbye. Question 1 Is information laid by several people, without any other proofs or corroborative evidence, sufficient proof of itself to warrant the use of torture? I maintain that the answer is yes in the case of denunciations by accomplices, because it is not usual, (nor should it be), to have doubts about denunciations by men otherwise of good character who are accomplices in the crime. On denunciation by several accomplices, I say what I said in Investigations into Magic Book 5, section 3, paragraph on torture. But because several people have not accurately understood what I intended to say, it will be well worthwhile my explaining it a little more carefully here so that none of those who do not so much as deign to read what I have written can be deceived. In regard to what is under discussion here—from where it says, ‘A second piece of circumstantial evidence is being named by one’s accomplice’, to a little further on where it says, ‘The fourth piece of circumstantial evidence is’—much of what I wrote previously was enough to satisfy the requirement of brevity, but perhaps I did not explain certain points with sufficient clarity to keep readers happy and fully informed.

257

By the sixteenth century, seu could also have the sense ‘and’, which means there is an implied distinction between striges and veneficos. It is therefore possible that the case which gave rise to the questions did actually involve someone who had poisoned someone else by administering a herbal drink, prepared to the accompaniment of magical words and gestures, which proved to be lethal.

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Non volui d. vers. ad torturam, disserere de plurium complicum denunciationibus socios criminis nominantium (quia de efficacia nominationis plurium censebam merito dubitari non debere), sed dumtaxat volui decidere quaestionem de unius complicis nominatione (de qua maior difficultas occurrit) et quoniam videbam extrema hic periculosa; nam hinc quidam immane multum illi tribuunt, quorum idcirco sententiam refutavit, vers. Putant quidem dd. Inde vero alii nimis multum detrahunt unius complicis nominantis testimonio; cum tamen fieri queat et soleat, ut unius nominantis denunciatio in nostro crimine talis sit, ut Iudex aliquibus concurrentibus circumstantiis, merito sibi persuadeat reum vehementer urgeri, et propter summam dicti verisi|militudinem, cum vere inculpari; idcirco media tutiore incessi via, et Clarum, Farinacium Binsfel. et alias secutus, quaedam collegi incidia, quibus concurrentibus, ex unius complicis alios nominantis denunciatione Iudex tuta conscientia (qui scopus est libri illius quinti) possit nominatum quaestioni admovere. Hac autem in re hoc ordine sum progressus. Primo contra Simancae sententiam ostendi debere hanc denunciationem esse factam in tortura, vers. Debet tamen iuxta nonnullos litt. L; removi etiam quaedam alia impedientia, ex parte nominantis, nominati et iudicis Postea a d. vers. id torturam, posui conditiones adminiculantes, quarum si aliquae, vel omnes accederent, et priorum requisitorum nihil desit; hoc est absint impedientia illa quae dixi omnia; crediderim omnino securam reddi torturam eius qui ab uno solo complice fuit tali modo nominatus. Harum tamen conditionum admiculantium d. vers. ad torturam nullam exigere volui, quando plures complices nominarunt eumdem. Semper ex professo egi de uno complice Nominante: quare quod in d. vers. fine posui in plurali a complicibus id tantum posui pro primo admiculo unius complicis, non ut de plurium denunciatione disputarem. Et semper alias utor expresse, singulari numero, praeterquam vers. sed quaedam circa hanc rem, ubi scripsi admittantur infames; verum ita loquor non collective de pluribus simul, sed de singulis divisive; nempe quod nullus sit adeo infamis, ut a denunciando in hoc

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Where it says ‘torture’, I did not want to discuss denunciations by several accomplices who name their partners in crime, because when it comes to the legal validity of several people’s naming names, I was of the opinion that it is not right to have any doubts [about it]. I simply wanted to settle the question of naming by a single accomplice—quite a big difficulty presents itself in connection with this—and since I saw that the last things I said are risky, on account of the fact that a number of people attribute far too much to [naming names], I therefore refuted their opinion, where it says ‘Indeed, scholars think.’ For that reason, however, others are far too given to disparaging the evidence of a single accomplice who provides names. But since it can, and usually does, happen that denunciation by a single accomplice in the crime is of such a kind that, under certain circumstances, the judge persuades himself that the accused is being forcibly pressed on him and that, because what he has been told is highly likely to be true, the man is being genuinely inculpated, I therefore took the safer, middle route and followed [Giulio] Claro, [Prospero] Farinacci, [Peter] Binsfeld, and others. I have collected together a number of pieces of evidence, andonce these agree with one another and one accomplice denounces others and names names, a judge can, with a clear conscience, (and this is the aim of Book 5), direct the named person to be tortured. I proceeded in order in this matter. First, contrary to the opinion of [Diego de] Simancas, I pointed out, (at ‘But according to several people, it should’, letter i), that this denunciation should be made under torture. I also removed a number of impediments in respect of the person doing the naming, the person named, and the judge. Later on, after the words ‘to torture’, I put in place the conditions which support this, and if some or all of them were to be present at the same time, and none of the more important requisite conditions were lacking, (that is, all those I said act as impediments), I believed one can be completely secure in handing over for torture someone who has been named in such a way by only one accomplice. But I did not mean that one should require any of the supporting conditions I mentioned in the passage ‘to torture’ when the same person is named by several accomplices. It was always my intention to require them of one accomplice who names names and therefore when, at the end of the passage, I used the plural ‘by accomplices’, I used it merely to stand for the first supporting evidence of one accomplice, not to start an argument about denunciation by more than one person; and elsewhere I always expressly use the singular, except in the passage ‘but a number of things in connection with this matter,’ where I wrote ‘disreputable people can be admitted.’ There, however, I am not talking collectively about more than one person at a time, but separately about separate individuals. Moreover, because no one is so

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crimine arceatur, quae ratio allata ad probandum complicis denunciationem hic aliquam fidem mereri. Nec decuit huc trahere quod postea litt. N. versic. conditiones autem in principio monui, adminicula debere esse talia, ut iudex ultra illa adminicula, ex ipso quoque testium numero, et qualitate deponentium etc., credat nominantem non mentiri. Illic enim vox nominantem, et quod praecessit cum denunciatione complicis; satis ostendunt, adhuc manere me in casu unius complicis; et agere de aliis testibus, si qui sint nominationi ab uno complice factae adminiculantes. Alia denique requisivi ad condemnationem, sect. 5, vers. 4 et 5, plura quam ad torturam, sect. 3: ideo non oportet ab uno ad aliud argumentari. Haec de sententia mea nunc age probenius illam, de ipsa difficultate definitive procedendo. Dico primo non placet, nec satis tuta mihi videtur sententia multorum gravium scriptorum, volentium in criminibus exceptis (ut vocant), in quibus reus de se confenssus potest de sociis criminis interro|gari (inter quae sine controversia numeratur crimen Magiae tex. 1, fin. C, De malef. multos citat Farinacius lib. 11, q. 43, n. 67): sufficere ad torturam, si nominatio sit facta ab uno complice, idque ob gravitatem et immanitatem delicti. Ista conclusio est contra multos: Pet. Cyn. Ang. in lib. fin. C De accus., Buir. Imol. Abbat. in cap. 1. De confes., Gandin. in tit. De quaest. et tortur., n. 18, Bonifac. Vitalin. in Rubr. quae indicia praecedere debeant sub. n. 9, Guidon. de Susaria Tracta. de Indic., sub n. 42, Amb. de Bononia Tract. de quaestion. n. 9, ubi affirmat sic se vidisse practicari, Ant. Gomes. Hispan., tom. 3, De delicts. titulo De probat., n. 18, Blanc. Tract. de indic., n. 378, Placam De delict., cap. 13, n. 28, et Federic. Scotum, cons. 10, n. 28 et 31, lib. 2, ubi in occultis. Quorum rationes

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disreputable that he is prevented from denouncing someone in this particular crime, and because the reason for the denunciation is to prove [the crime], denunciation by an accomplice under these circumstances deserves a degree of trust. It was not appropriate, either, to drag in what is said later at letter N, ‘But I advised from the start that the conditions should be so supportive that, in addition to those supportive [pieces of evidence], and also because of the number of witnesses and the social rank of those naming names, the judge can believe that the person namingnames is not lying.’ There, the words ‘the person naming names’ and those which precede it, ‘with the denunciation of an accomplice’ show perfectly well that I am still talking about the case of a single accomplice and am dealing with the case of other witnesses, if they are the kind of person likely to be named as supports by a single accomplice. Lastly, I required other things for a guilty verdict, (section 5, at 4 and 5), and more than I did for torture, (section 3), so it is not necessary to argue from one to the other. That is what I have to say about my opinion. Well now, let me put it to the test by dealing decisively with the difficulty I mentioned. First of all, I say that the opinion of many weighty writers is not satisfactory and, I think, cannot be trusted, either, in cases of crimes ‘which fall outwith the normal legal rules’, (as they call them) in which the accused has made a confession about himself and can be questioned about his partners in crime: and incontrovertibly the crime of magic is counted as one of these. (See the end of the text in [Justinian’s] Codex on workers of harmful magic, [9.18.9.1]. [Prospero] Farinacci also cites many writers in Book 2, question 43, number 67); and because of the seriousness and heinousness of the offence, they also want naming by a single accomplice to be sufficient to warrant torture. This conclusion contradicts many people: Petrus [degli Ubaldi?], Cino [de Pistoia], and Angelo [Gambiglioni] on the end of [Justinian’s] Codex, ‘on accusations’ [9.2.17.1]; [Antonio de] Butrio, [Giovanni de] Imola, and Nicolò de’ Tudeschi (‘Abbas’) on confessions; [Alberto] Gandino under the heading ‘questioning and torture’, number 18; Bonifazio Vitalini in the rubric ‘things which should precede circumstantial evidence’, number 9; Guido da Suzzara, treatise on circumstantial evidence, under number 42; Ambrosio of Bologna, Treatise on Torture, number 9, where he claims he saw it done; Antonio Gómez, a Spaniard, in volume 3 of his treatise on criminal offences, under the heading ‘proof’; [Marco Antonio] Bianchi in his treatise on circumstantial evidence, number 378; [Pedro] Plaza [y Moraza] in his treatise on criminal offences, chapter 13, number 28; and Federico Scotti [da Sarmato], Legal Advice Volume 2, 10, numbers 28 and 31, where [he talks about] things which have been con-

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non valde urgent. Nam licet hoc crimen sit exceptum, et in multis Regulae iuris in eo locum non habeant, veluti quod infames admittantur adversus huius criminis reos, lib. famosi D. ad leg. Iul. Maiesta. cap. In fidei. de haered., in 6 cum sim. et quod Reus de se confessus potest de sociis interrogari, lib. fin. cap. De malef., cap. litteras de Praesumpt., cap. 1 De confess., cap. nemini 15, q. 3 contra regulam in lib. Repeti D. de quaestion. et lib. fin. cap. De accusat; et quod crimen sit atrocissimum, licet haec vera sint, non tamen inde sequitur, in hoc crimine quoad omnia a iure communi recedendum, vel eo usque et quantum unusquisque volet rigorem contra hos criminosos intendendum, vel inutilem fore de consortio sociorum interrogationem, licet ex unius nominatione ad torturam iudex non prosiliat; proderit enim ad inquisinonem formandam contra nominatum, et ut inquisitio nominato transmittatur, ut personaliter compareat, quae communis est sententia, Bald. in lib. Servorum, cap. De testib. et in lib. 1, cap. De sum. Irin., n. 5, Bossius tit. De inquisit., n. 4 et 61, Clarus lib. 5 § fin., q. 21, n. 2, Menoch. lib. 1 De praesumpt., q. 88, n. 12 et 13, et praeterea ut capi quoque reus possit. Salice, in lib. absentem. n. 9, cap. de accusat. Boet. decis. 319, n. 4.

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cealed.258 Their explanations are not persuasive because, although this crime is one which falls outwith the normal legal rules, in many cases legal regulations have no part to play in it—because, for example, (a) disreputable people may be admitted to give evidence against those accused of this crime, (‘people with a bad reputation’ in Digest at ‘Lex Julia on treason’, [48.4.7.preface]; chapters ‘of faith’, ‘concerning heirs’, ‘in sixty’, along with similar passages) and (b) because the accused who has confessed he has done it can be interrogated about his partners in crime, (Codex, end of ‘workers of harmful magic’; chapter ‘letter concerning presumption’; chapter 1 on confessions; chapter ‘to no one’, 15 question 3; against the regulation [about repeating torture], one can find it in Digest ‘on torture’ [48.18.16 preface] and the end of Codex ‘on accusations’ [9.2]); and (c) because the crime is absolutely dreadful. However, even though these points are true, it does not therefore follow that when it comes to this crime one can entirely forget about the law entirely, to the point that anyone can use as much severity as he wishes against these criminals, or that interrogating him about the partnership of his associates will be useless, even though the judge may not jump at the chance to have him tortured on the strength of one person’s having named him. It will, after all, be beneficial to have the person who has been named investigated, and to give the person who has been named the right to be investigated so that he can appear in person. This is common opinion. (Baldo [degli Ubaldi?] on the position of slaves, Codex ‘on witnesses’ [4.20] and ‘The Highest Trinity’ in Codex 1, [and] 5 [= Heretics, Manichaeans, and Samaritans]; [Egidio] Bossi, Investigation, numbers 4 and 61;259 [Giulio] Claro, Book 5, paragraph at the end of question 21, number 2; [Giacomo] Menochio, Presumptions, question 88, numbers 12 and 13); and, in addition, that the accused can be arrested, see [Bartolomeo da] Saliceto on an absentee; Codex 9 ‘on accusations’; and [Nicolas] Bohier, Decisions 319, number 4. 258

259

Petrus degli Ubaldi, (1335–1400), was the younger brother of the more famous Baldo de Ubaldis, and was sometimes confused with him. Cino de Pistoia, (1270–1336), was a member of the Sinibaldi family, a jurist and a friend of Dante. Angelo Gambiglioni (floruit fifteenth century) was a noted criminal lawyer who wrote a treatise on law and penal procedure, (Tractatus de Maleficiis), and commentaries on Justinian’s Digest. Alberto Gandino (1245–1310) produced a Treatise on Acts of Harmful Magic (‘Tractatus de Maleficiis’) in 1299. Bonifazio Vitalini (c.1320–c.1388) published a piece on acts of harmful magic as part of his work on criminal procedure, (Milan 1505). Guido da Suzzara (c.1255–1292) was Professor of Law in Modena, Padua, and Bologna. His work was included in a Treatise on Circumstantial Evidence and Torture, along with Francesco Bruni and Baldo de Perigli, which was published in Lyon in 1505. Federico Scotti da Sarmato bei Piacenza, (1522–1590). The second volume of his Legal Advice and Replies appeared in 1589. This refers to a collection of treatises (Tractatus Varii) which were later edited and published by his son, Francesco. ‘Investigation’ (De Inquisitione) is the third of those treatises.

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Probatur vero conclusio authoritate et ratione. Auctoritate, clarissimarum Academiarum, Bononiensis Pabavinae, Friburgensis, et Ingolstadiensis qua hoc anno 1601, interrogatae id responderunt. Ratione vero quia haud dubie communius receptum est ab interpretibus, ne in atrocissimis quidem delictis, absque legitimis indiciis iudici a tortura inchoandum: et colligitur ex lib. 1 in princ. D. de quaestion. et lib. milites cap. eod. unde hoc voluerunt multos adducentes Hippol. de Marsil. in lib. 1, col. 2, et in lib. De minore, col. 2 D. de quaestion., idem in Sing. 117, Hieron. Gygas De crim. laes. Maiesta. tit. Quomodo et per quos q. 26, Clarus d. § fin. q. 64, n. 9, Mascard. concl. 1391, n. 4, De Probation. idem concl. 1385, n. 4, et Farinac., lib. 2, q. 37, n. 79 et n. 89. Legitimam vero indicium non est, unica unius complicis nominatio, qui est infamis; testis enim infamis alias iure inhabilis censetur ad probandum; et fulciri debet aliis adminiculis ut indicium faciat etiam in criminibus exceptis, ex textu in lib. sicuti I.C. De quaestion., Bart. in lib. 1 § idem Cornelio. D. De quaest. Bald. cons. 259, lib. 1 et multi adducti a Farinacio d. q. 37, n. 58 et q. 36, n. 68 et 70. Unde consequitur, a pari ratione reum infamem de se ipso confessum, et de aliis interrogatum non facere fidem ad effectum torturae et ita communiter docent plerique. Gloss. et Salyce. in d. l. fin. C. De accusat. Bart. in lib. maritus D. de q. iuncta lib. qui ulti. D. de poen., Bald. d. pos. 259, Ang. et Roma. in lib. si certus D. ad Syllanian. | Alex. cons. 11, n. 5. lib. 1 et cons. 89, n. 12, lib. 3, cons. 124

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The conclusion, however, is proved by authority and by reason—by the authority of the very famous universities of Bologna, Padua, Freiburg, and Ingolstadt which this year, 1602, were asked about it and this is their reply, and by reason, because there is no doubt that it is quite commonly accepted by interpreters [of the law] that a judge cannot embark on torture, even in the most dreadful offences, in the absence of legitimate evidence. One gathers this from the beginning of the Digest ‘on investigations’ [= 48.18.preface and 1.1 and 1.2] and ‘soldiers’ in Codex, the same heading, [i.e. ‘investigations’, 9.41.8 preface], and consequently, that many who were in favour of it have adduced Ippolito de Marsili on 1, column 2 and 1, column 2 on ‘someone younger [than fourteen]’ in Digest, ‘on investigations’ [= 48.18.15.1], and likewise in his Remarkable Things, 117; Girolamo Giganti, The Crime of Treason, under the heading ‘how and by whom’, question 26; [Giulio] Claro, in the final paragraph of question 64, number 9; [Giuseppe] Mascardi, Proofs, conclusion 1391, number 4 and likewise conclusion 1385, number 4; and [Prospero] Farinacci Book 2, question 37, numbers 79 and 89.260 The naming of one person by a single accomplice who is a disreputable individual is not, however, a legitimate piece of evidence, because the law considers a disreputable witness to be inadmissible, and what he says must be supported by other pieces of legal evidence so that it constitutes evidence, even in crimes which fall outwith the normal legal rules, according to the text, for example, from the Codex ‘on investigations’ [= 9.41.1.1]. Bartolo [da Sassoferrato] Book 1, on the paragraph ‘the same to Cornelius’ in the Digest ‘on investigations’ [= 48.18.1.4]; Baldo [degli Ubaldi?] Book 1, advice 259, and many people adduced by Farinacci, question 37, number 58 and question 36, numbers 68 and 70. From this it follows, for an equally good reason, that a disreputable accused person who has confessed his actions and has been asked about other people does not inspire confidence that it would be useful to have him tortured. A good many people agree on this point: interpreters [of Justinian] and [Bartolomeo da] Saliceto on the said passage; the end of the Codex ‘on accusations’ [= 9.2.17.1]; Bartolomeo [da Sassoferrato] on the passage ‘the husband’ in the Digest [= 48.18.20] and, in connection with this, ‘those who [are condemned] to the ultimate punishment’, Digest ‘on punishments’ [= 48.19.29]; Baldo, op.cit. advice 259; Angelo [Gambiglioni] and [Rolandino de] Romanzi on ‘if he is sure’,

260

Ippolito de Marsili published his Remarkable and Notable Things in Bologna in 1501. Girolamo Giganti, (floruit mid sixteenth century), published his book on treason in 1557.

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ad fin, lib. 6, Corn. cons. 95 in fin. lib. 1, Socin. cons. 96, col. 4, lib. 3, Decius cons. 189, n. 10, ver. Secundo etiam Marsil. in § diligenter n. 60 et in. lib. 1 § Divus. n. 5. D. De quaest. et cons. 74, n. 8, et 12 cons. 109, n. 16 et 130, n. 42, et in singul. 209, Ruin. cons. 146, col. 1, et cons. 147, n. 3, lib. 5, Paris. cons. 151, n. 9, lib. 4, Boer. decis. 319, col. 1 et n. 3, Grammat. decis. 28, n. 12 et decis. 34, n. 37, et bene decis. 56, n. 1 et 2, et cons. 21, n. 6, cons. 66, n. 4, egregie Cravett. cons. 78., col. 2, Rolandus a valle cons. 16, n. 17 et cons. 73, n. 20, lib. 1 Bertazzol. cons. 4, n. 11 et cons. 310 per totum, cons. 332 et 341, n. 25, ubi secus concludit, quando ad unius nominationem accedunt alia adminicula. Item Gigas d. Tract. tit. Quomodo et per quos, q. 7, n. 5, Carerius tit. De haeresi., n. 118, Bossius De indic., n. 11, v. 66, et 149 et 198, Clarus q. 21, n. 9, Ioannes de Arnono soliloquio. 94, Menoch. De arbit. iudic. casu 474, n. 43; item Brun. Cason. et alii quos congerunt Mascardus, concl. 1317, n. 52 et Farinacius q. 43, n. 145 et 155, et prius n. 27 et 75. Quae sententia communis cum sit iuri et rationi magis consentaneae, meo iudicio, Iudici sequenda est, in utroque foro; si quis tamen illam contrariam Cyni et aliorum secutus esset,

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Digest on the senatus consultum silanianum [= 29.5];261 Alessandro [Tartagni] Book 1, advice 11, number 5, Book 3, advice 89, number 12, Book 6, advice 124 at the end; ‘Cornelius’, advice 95 at the end of Book 1; [Bartolomeo] Socini Book 3, advice 96, column 4; [Filippo] Decio, advice 189, number 10, line 2 and [Ippolito] Marsili on the paragraph ‘carefully’, number 10 and Digest, ‘investigations’, paragraph 1, number 5, ‘the deified’ [= 48.18.1.5], and Advice 74, number 8, Advice 109, number 16, and 130, number 42, and Remarkable Things, 209. [Carlo] Ruino, Book 5, advice 146, column 1 and advice 147, number 3; Paride [del Pozzo], Book 4, advice 151, number 9; [Nicolas] Bohier, Decisions, 319, column 1 and number 3; [Tommaso] Grammatico, Decisions, 28, number 12, 34, number 37, well decided 56, numbers 1 and 2, advice 21, number 6, advice 66, number 4; [Aimone] Cravetta, advice 18, column 2 (very good indeed);262 Rolando della Valle Book 1, advice 16, number 17 and advice 73, number 20; [Bartolomeo] Bertazzoli, advice 4, number 11 and the whole of advice 310, advices 332 and 341, number 25, and he concludes later, ‘when other supporting evidence agrees with the naming of a single person’. Likewise, [Girolamo] Giganti, Treatise [on Treason] under the heading ‘how and by whom’, question 7, number 5; [Lodovico] Carerio under the heading ‘on heresy’, number 118; [Egidio] Bossi on circumstantial evidence, number 11, passages 66, 149, and 198; [Giulio] Claro, question 21, number 9; Giovanni d’Arnono, Monologues, number 94; [Giacomo] Menochio, Cases which depend on Decisions taken by Judges [Book 2, case] 474, number 43; likewise [Francesco] Bruni, [Francesco] Casoni, and others whom they cite together; [Giuseppe] Mascardi, conclusion 1317, note 52 and Farinacci, question 42, notes 145 and 155, and his earlier notes 27 and 75.263 Since this common opinion is more in agreement with law and reason, in my judgement a judge should follow it in both a secular and an ecclesiastical court. But if anyone were to have followed the contrary opinion of Cino [de Pistoia] and the

261

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Rolandino de Romanzi, (died 1284), wrote a book on criminal procedure (‘Libellus de Ordine Maleficiorum’). The Senatus Consultum Silanianum (passed 10 ad) said that a slave could be tortured in order to clarify the circumstances of his master’s death. Bartolomeo Socini, (1436–1507), was an Italian jurist who published collected legal advice (‘Consilia’) in several parts. Tommaso Grammatico (1473–1556) published Decisions of the Sacred Royal Council of Naples in Lyon in 1555. Aimone Cravetta, (1504–1569). His ‘Consilia’ were published in several parts: parts 1 & 2 in Venice, 1566, and the rest posthumously, 1581, 1589, and 1592. Rolando della Valle, (floruit mid sixteenth century), published his Advice in 1560. Lodovico Carerio, (1490–1560), published a book on legal practice in Naples in 1546. Giovanni d’Arnono, (floruit first half sixteenth century), published A Hundred Monologues in 1535. Francesco Casoni (c.1500–1564), Circumstantial Evidence and Torture, was part of a growing debate on the reliability of torture to produce truthful testimony and confession.

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putarem eum Syndicatui non subiacere; facit enim tot Doctorum, quos secutus est, et citavi supra vers. ista conclusio est contra, ut dici nequeat ex capite suo vel temere fecisse aut procesisse, qui gravium Doctorum, et quorumdam Iudicum, praxim doctrinamque amplexus fuit, licet minus probabilem vel tutam. Conclusio 2: Sed quando reus a pluribus complicibus debite interrogatis fuit denunciatus, etiam absque aliis indiciis vel adminiculis, licet iudici procedere ad torturam in nostro crimine. Conclusio haec magnam difficultatem habet propter adversantium multitudinem et argumenta. Nam contra illam terrent magni nominis scriptores; non tantum loquentes de criminibus non exceptis, ut Grammat. cons. 21, post. n. 10, Mart. Ant. Natta cons. 398, num. 10, et Mascard. concl. 1317, n. 18, pro quibus facit textus lib. fin. cap. De accusat. Verum etiam in exceptis, ut Marsilius cons. 79, n. 13, et cons. 109, n. 10, in quibus si testes sint omnino inhabiles, numerus non supplet fidem, sic. Pet. Ancharan. cons. 246. In causa: Alex. in lib. si quis ex argentariis § cogentur n. 1 D. de eden. Corn. cons. 333, col. 7, lib. 1, Felin. in cap. testimonium, n. 5, De testib. Cravett., cons. 99, n. 10 et De antiq. temp., in 1 p. in § quod libro officialis, n. 19. Ubi habet pro absurdo quod plures testes omnia inhabiles, possint simul fieri habiles, quia nequit ullus dare alteri, quo ipse caret. Denique ne plures inhabiles testes ad torturam vel quaestionem iungantur, videtur generaliter, quoad omnia crimina, statutum in d. § idem Cornelio. et volunt ibi Bart. et quoad plures nominantes alii ut Roland.

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others, I should think he does not belong to any official body [of advocates], because he makes this conclusion the opposite of that of so many of the scholars who have gone before him and whom I have cited above, and so someone who has embraced the practice and teaching of these weighty scholars and a number of judges cannot be said to have made it up or proceeded rashly, even in the case that it is less likely and less secure. Second conclusion: when an accused has been denounced by several accomplices who have been duly interrogated, it is permissible, even in the absence of other supporting evidence, for a judge to proceed to torture in the case of the crime under discussion. This conclusion faces a big difficulty on account of the large number of people opposed to it and the arguments [against it]. Writers with a big reputation are firmly against it, not only those who talk about crimes which fall within the normal legal rules, such as [Tommaso] Grammmatico, advice 21, after number 10; Marco Antonio Natta, advice 398, number 10, and [Giuseppe] Mascardi, conclusion 1317, number 18, on behalf of which he applies the end of Codex, ‘on accusations’ [= 9.2.17.1], but also those which fall outwith the normal legal rules, (for example, [Ippolito de] Marsili, advice 79, number 13 and advice 109, number 11), in which, if the witnesses are altogether disreputable, the number of them does not constitute a reason for believing them. This is the opinion of Pietro d’Ancarano, advice 246; Alessandro [Tartagnis], applying to this case, ‘if one of the money-lenders’, paragraph ‘they will be compelled’, in Digest ‘making a declaration’ [= 2.13.6, preface and 2.13.6.1]; Cornelius Book 1, advice 333, column 7;264 Felino [Sandeo] in chapter ‘testimony’, number 5, on witnesses; [Aimone] Cravetta, advice 99, number 10 and Treatise on Antiquity Part 1, paragraph ‘because in the book of the official’, where he thinks it an absurd idea that several entirely disreputable witnesses can be reputable at the same time, because no one can give something to someone else when he himself does not have it.265 Finally, generally speaking it seems, as far as all crimes are concerned, that it has been decided in the paragraph ‘the same to Cornelius’ to which I referred earlier, [= Digest 48.18.1.4], that rather disreputable witnesses should not be additional [sources of evidence] along with torture and interrogation. This is what Bartolo [da Sassoferrato] and others mean in connection with several people naming names. See Rolando [della Valle],

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Marcantonio Natta (died 1568), Four Volumes of Advice and Replies; Pietro d’Ancarano (c.1333–1416), Advice, (published in Rome, post mortem, 1474); Alessandro Tartagnis (c.1424–1477), Advice. Felino Maria Sandeo (1444–1503), Advice or Replies; Aimone Cravetta (1504–1569), Advice, later published in Venice in 1581.

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cons. 16, n. 18 et 23 et lib. 1 Bursatus cons. 201, n. 61, Bertazzol. cons 28, n. 3, cons. 116, n. 21, et 234. col. 1. Nec desunt argumenta fortia pro hac parte, quibus tamen sufficiens solutio datur. Primo inquiunt quotiescumque duae sunt sententiae contrariae probabiles, res dubia manet; et tum praestat mitiorem partem sequi, qualis hic est negativa, et praestat nocentem absolvere quam innocentem condemnare: lib. absentem cum simil. D. de poenis. Nec videtur Iudex satis tutus in conscientia, si affirmativam sequatur; cum debeat securiorem sequi interpretationem cap. Ad audientiam. et cap. significasti 2 De homic. Gloss. et dd. ibid. | Pro praemisso antecedente multa solent declamatorie a Sagarum patronis prolixe exaggerari. Sed pro horum et similium intelligentia, quaedam mihi quoque hoc loco sunt copiosius dicenda, ut Iudicia haec promoveantur, et facilitetur via executionis, et tenebrae veritati offusae dispellantur. Fateor imprimis rem dubiam esse hoc sensu, quod non sit certa, nec affirmativa, nec negativa parti; sed nego casum dubium, eo sensu, quod iudici non satis tum possit verisimiliter constare, sufficiens indicium habere se, ut credat reum torqueri debere, quod sufficit, ut postea docebitur. Quare, cum plurium nominatio in ordine ad torturam dubium sustulerit, et quandam certitudinem induxerit, negandum nos hic in dubio versari. Dein nego mitiorem respectu reip. et boni publici esse negativam, licet sit mitior respectu nominati; iudex vero debet potius considerare quid reip. sit utilius. Neque vero semper mitior aut favorabilior sententia Iudici sequenda est; fallit enim illa regula, si adsint signa et indicia sufficientia, quae suadeant sequi interpretationem in partem deteriorem, quod etiam in conscientiae foro obtinet, ut Theologi docent: lege S. Thom. 2. 2., q. 60, a. 4, et Domin. Sotum lib. 3 De Iust., q. 4, art. 5. Denique quid si dica-

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advice 16, note 18 and [Francesco] Borsati, advice 201, number 61; [Bartolomeo] Bertazzoli, advice 28, number 3, advice 116, number 21, and 234, column 1.266 There is no lack of strong arguments for this point of view, but they can be answered quite easily. First, they say that whenever there are two credible, but contradictory arguments, the matter remains open to doubt, and under those circumstances it is better to follow the kinder path which, in this case is the negative one, and to acquit a guilty person rather than condemn one who is innocent. See Digest, ‘on punishments’ [paragraph] ‘an absent person’, and so forth [= 48.19.5.1]. A judge does not seem to be sufficiently secure in his conscience if he follows the affirmative path, since he ought to follow the interpretation which is the more secure, (chapter ‘at the hearing’ and chapter ‘you have signified’ 2, on murder): legal interpreters and scholars on the same passage. Witches’ patrons have the habit of rhetorically exaggerating, at length, many things in favour of the foregoing premise. But for their [better] understanding, and that of people like them, I should also say a number of things at greater length at this point, so that these legal opinions can be moved forwards, the way of putting them into operation facilitated, and the darkness spread over the truth be dispelled. First of all, I maintain that the matter is in doubt in this sense, that neither the affirmative nor the negative side [of the argument] is resolved. But I deny that the hypothesis is in doubt in the sense that a judge cannot, with sufficient plausibility, persuade himself that he has enough evidence to make himself believe he should have the accused tortured. What is sufficient, I shall explain later. Consequently, when several people, one after the other, have named names and supported one’s doubt about [resorting] to torture, and have thus made one certain about what one thinks, one has to deny that, under these circumstances, we remain in doubt. Secondly, I deny that, in respect of the state and the public good, the negative path is the kinder, although it is kinder as far as the named person is concerned. The judge, however, has rather to consider what is better for the state, and a judge is not always obliged to follow the kinder and more favourable opinion, because that rule is wrong if there are adequate signs and pieces of evidence which persuade him to follow the interpretation which is worse for the party concerned. This is also a view which also holds good in the court of conscience, as theologians tell us. (Read St Thomas [Aquinas] 2.2, question 60, article 4 and Domingo de Soto, Justice and Law, question 4, article 5.)267 Lastly, suppose we say what is, at any rate, perfectly 266 267

Francesco Borsati, (dates uncertain), published his Advice in 1561. It was reprinted several times afterwards. Bartolomeo Bartozzoli (c.1520–1588), Advice. Domingo de Soto (1494–1560) published his Justice and Law in 1556.

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mus, quod urique verissimum, securiorem hic partem esse, si iudex praesumat potius veram esse denunciationem, quam si praesumat esse falsam; primo quia illud utilius est ipsi personae denunciatae; spes enim est fore, ut torta delictum confiteatur, et sic anima eius salvetur. Si vero non torqueatur, timendum quod morietur sine confessione, et damnabitur. Secundo, quia ut plurimum docet experientia in nominandis sociis sagas veritatem dicere, ut attestatur Binsf. Tract. de confess. malef. memb. 2, concl. 1, rat. 10. Securius autem est praesumere quod frequentius accidit. Tertio, quia constat eadem experientia, summo labore maleficas adigi ad has nominationes, quod signum est daemonem eas impedire, ne regnum suum, supplicio affectis lubditis, diminuatur; et proinde denunciationes esse veras, et id impulsu quodam Dei fieri, ut complices, daemone invito, nominent; sane providentiam Dei hic operari clarum est, quia vix unquam permissum reperias innocentes nominari, quod si nominati, mox eorum innocentia Deo sic disponente palam fit: Binsfel. d. loco. post 7, concl. in solut. argumentorum. Quarto hoc est longe utilius reip. ut statim docebo; et licet non foret hoc securius et probabilius, adhuc tuto posset iudex hanc sententiam amplecti. Quia quotiescumque sunt duae sententiae probabiles contrariae, licet iudici alter utram sequi, nec tenetur sequi probabiliorem; maxime si iudicet alteram magis tum profuturam reip. Sed in nostro casu ambae sunt probabiles et affirmativa merito censetur reip. utilior: ergo licet iudici eam sequi. Maior quoad priorem partem negari non potest, quia tunc id prorsus arbitrarium est iudici, et est communis sententia casu istarum; quoad posteriorem partem probo, quia quando parti non fit iniuria (quod hic suppono) iudex tenetur actiones suas ad reip. cuius minister est, utilitatem dirigere. Nam salus reip. suprema lex est, Cicero De legibus. Minor vero sic ostenditur vera pro prioref

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true—that in this case, the more secure path is if the judge presumes that the denunciation is true rather than presuming it is not true, (1) because that is more beneficial to the person who has been denounced, since one’s hope must be that, once she has been tortured, she may confess her offence and so save her soul, whereas if she is not tortured, the fear is she will die unshriven and be damned; (2) because for the most part, as experience tells us, witches [sagas] tell the truth when they name their associates, as [Peter] Binsfeld attests in his treatise The Confessions of Workers of Harmful Magic Part 2, conclusion 1, reason 10, and so it is safer to presume something which happens quite frequently; (3) because this same experience agrees that it takes a very great deal of trouble to bring women who work harmful magic [maleficas] to the point of naming names. An indication of this is that the Evil Spirit prevents them from doing so, lest his kingdom be diminished once his subjects have been put to the torture. Likewise, [experience tells us] that the denunciations are true and that this is so because of an impulse from God which makes them name their accomplices, even though the Evil Spirit does not want them to do so. Here it is undoubtedly clear that God’s providence is operating, because you can scarcely ever find that they are allowed to name people who are innocent since, if they are named, God so arranges things that their innocence becomes apparent, (Binsfeld, loc. cit. after conclusion 7, in the resolution of the arguments). (4) It is by far more beneficial to the state, as I shall explain in a moment, and even though it would not be more secure and plausible, a judge could still safely embrace this opinion, because no matter how often two plausible opinions are contradictory, it is permissible for a judge to follow either of them. He is not obliged to follow the more plausible one, especially if he considers that the other one is going to be more beneficial to the state on this occasion. In the case we are considering, however, both are plausible and the affirmative is the one quite rightly thought to be more useful to the state. It is therefore permissible for the judge to follow it. The major premise in respect of the first part cannot be denied, because in that case the decision is entirely up to the judge. As far as the second part is concerned, I prove that this is the common opinion in the case of these women, because when the party concerned does not suffer harm, (which is what I am suggesting here), the judge is obliged to direct his actions towards what is beneficial for the state whose servant he is, since the safety of the state is the most important law, (Cicero, Laws).268 Now, the lesser premise is thus shown to bef 268

Cicero, Laws 3.3.8. One might quibble and say that Cicero’s text says ‘let’ the safety ‘of the people’ be the highest law, (‘salus populi esto’), but the difference in intention here is minimal.

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parte; sententia illa probabilis est, quae nititur authoritate gravium Doctorum, vel probabilibus rationum momentis (ut omnes fatentur), sed utraque pars his nititur, ut patet tota hac quaestione; probabilis ergo utraque. Negativam vero videri minus utilem rei|pub., quam contrariam, probo: quia reipub. hoc utilissimum censendum quod ad perniciosissimum crimen exstirpandum et sontes detegendos viam sternit; hoc facit affirmans, impedit negans, quia negans praecludit iudicibus fere aditus omnes in secreta cubilia huius pestis penetrandi, cum tollet ferme cuncta, quae ad hoc usui, adminicula; contra affirmans suggerit iudici modos, quibus ad noxiorum cognitionem perveniat, ut patebit ex responsione fere sequentium omnium quaestionum. Quinto, haec sententia tutior est ipsi iudici: probo quia est magis consentanea verae clementiae et misericordiae, quam altera: probo quia licet semper, a volentibus reos debitis suppliciis eripere, praetendatur praetextus misericordiae et clementiae; hi tamen ut plurimum falluntur et fallunt, dum clementiam vocant privatae personae causam causae Dei et reipub. praeferre. Revera tamen non est crudelis, qui ut multos ab unius iniuria defendat, aciem gladii, quem ad hoc a Deo recepit in unum exerit; clemens ille potius dicendus et misericors. Nec unquam crudelis est, qui remediis permissis, licet in speciem durioribus, aegrum reip. corpus sanaturus, putrida et noxia membra praescindit. Iustior etiam, quia honori divino haec sententia melius magisque consulit; nam ad Dei honorem adprime facit, ut homines fidei desertores, in Deum et coelites blasphemi, in totum genus humanum et naturam iniurii, daemonum partiarii etc. deprehendantur ac puniantur; quod consequitur pars aiens, negativa saltem non consequitur. Denique tutior est iudici, quia licet extremi iudicii comminationes contra sententium nonnulli valde exaggerent; tamen cum communes sint omnibus iudicibus, metito magis formidandae illis, qui nimis remissi ac desides sunt in hoc crimine vindicando. Nam si unius lamiae innocentis cruor a iudice exposcetur: quid tot infantulorum innocentissimorum, quos partim post baptismum, partim ante baptismum solitae necare; et his quidem cum temporali corporis aeternam quoque vitam animae eripere? Nonne tales iudices, qui,

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true because of the first part. The opinion which rests upon the authority of weighty scholars or the plausibility and importance of the reasons [they give], is likely to be true, as everyone acknowledges. But both parts rest upon these [premises], as is clear from the whole of this question, and therefore both are plausible. I prove that the negative one seems to be less useful to the state than its opposite, however, because the one which paves the way for the extirpation of a most pernicious crime, and the discovery of guilty persons, must be considered the one most useful to the state. The affirmative does this. The negative prevents it, because the negative stops judges from penetrating almost every access to the secret hiding places of this disease, since it removes almost everything which can be used to implement this. By contrast, the affirmative suggests to the judge ways in which he can come to a recognition of those who are doing harm, as will be clear from the reply to almost all the following questions. Fifthly, this opinion is more secure for the judge himself. I prove this because it is much more in accord with genuine clemency and mercy than the other. I prove this because, although snatching the guilty from those who want them to undergo their due punishments is always passed off and excused as mercy and clemency, these people are mostly deceived and deceivers as long as they prefer the cause of a private individual to that of God and the state and call it ‘clemency’. Yet in reality the person who defends the many from the harm done by a single individual and wields against one person the sharp edge of the sword he has received from God for this purpose is not being cruel. It is rather this man who should be called clement and merciful. He who, in an effort to cure the sick body of the state with remedies which are permitted, albeit somewhat harsh on the surface, and cuts off the rotten, harmful parts of the body, is never cruel. He is even rather just, because this opinion better, and to a greater degree, takes account of God’s honour, because it looks to God’s honour before everything else, and makes sure that people who abandon the Faith, blaspheme against God and heavenly beings, damage the whole human race and Nature, consort with evil spirits, etc. are arrested and punished. The affirmative part pursues this end; the negative, at any rate, does not. Lastly, [the affirmative] is more secure for the judge because although several of those who think the opposite much exaggerate the menaces of the final judgement, even though all judges have these menaces hanging over them in common, they are deservedly more to be feared by those who are too remiss and idle to punish this crime. After all, if a judge demands the blood of a single child-eating witch [lamiae] who is innocent, what about that of so many entirely innocent young children whom [witches] have been in the habit of killing, some after and some before they have been baptised, and of snatching away the eternal life of their soul along

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ut uni parcant, tam multos necari permittunt, recte dixerim similes Altheae Ovidianae, quam ideo acute vocavit impietate piam? Sunt enim hi falsa pietate vere impii; timent ubi non est timor, et dum sartaginem sugiunt inflammas ruunt. De hac re gravissime sic olim Almae universitatis Ingolstandiensis facultas Theologica et facultas Iuridica unanimiter anno 1590 laudatissimo Bavariae Duci Guilhelmo responderunt: “In his casibus ius habet magistratus, ut postponat privatum damnum alicui bono communi reipub., quod ordinarie sequitur ex tali modo procedendi contra suspectos criminum. Quemadmodum eadem ratione non est curandum si forte contingat aliquando, ut secundum allegata et probata condemnetur, is qui vere est innocens. Nam plus interest reip. ut secundum allegata et probata, quae cum plurimum veritate nituntur, feratur sententia, quam ut nunquam contingat condemnari aliquem innocentem. Quod adeo verum est, ut plerique Theologi et Iuristae consentiant, et recte; debere iudicem damnare eum qui secundum iuris ordinarium processum probatur reus, quamvis ipse iudex privata sua scientia nosset illum esse innocentem et falso delatum.” Hactenus illi, quorum decisio mihi tam certa, quam quod certissimum, et mutato uno atque altero verbulo, tota in nostra quaestione locum obtinet, si allegata et probata, mutemus in sufficientia indicia, quae certe sunt allegationum seu probationum | quaedam species. Quicquid autem sit de ratione illa quam adiungunt, hoc est sive illa opinio verior et probabilior sit, quam contraria negativa, quae et ipsa a magnis Theologis et Iuristis defenditur, quod ad rem non facit; illud certum est licet illa sententia communis verior non foret, adeo tamen probabilem et receptam esse sententiam, ut Iudex eam in rem deducens, quieta et tranquilla conscientia esse debeat. Contra non satis intelligo, quo pacto iudex in crimine tam atroci ac pernicioso reip. cum paria sint utrimque momenta rationum, possit securo animo illam opinionem eligere, quae probabilior non est; immo nec aeque probabilis, et aperte habet adiunctam

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with the temporal life of their body? Am I not right in saying that the kind of judges who, to spare one person, allow many to be killed, are like Ovid’s Althaea whom he therefore pointedly called ‘religious in her irreligiousness’?269 After all, these judges are actually irreligious with a false sense of duty. They are afraid when there is no call for fear and rush into the flames while they are fleeing the frying pan. Some time ago, in 1590, the Faculties of Theology and Law in the University of Ingoldstadt gave a unanimous answer on this subject to the most esteemed Wilhelm, Duke of Bavaria. ‘In these cases, the law obliges a magistrate to put aside the private hurt to someone in favour of some common good of the state, which in the ordinary way follows from this method of proceeding against those suspected of criminal activity. Just so, by the same reasoning, it should not be a matter for concern if, by chance, it sometimes happens that someone who is actually innocent is found guilty of things which have been alleged and proven against him, because it is of greater importance to the state that a sentence be delivered in accordance with what has been alleged and proven, (since for the most part these things rest upon the truth), than that some innocent person happen to be found guilty. This is so true that several theologians and legal experts agree— correctly—that a judge ought to pass sentence against someone who is proven guilty according to normal legal procedure, even though the judge may have personal knowledge which makes him aware that the person is innocent and has been falsely delated.’ This is what they said, and I think their decision is as assured as it can be and, with the alteration of a couple of words, it is applicable to the whole question we are dealing with here, because if we change ‘things alleged and proven’ to ‘adequate pieces of evidence’, these certainly are a kind of things alleged or proven. But whatever the explanation they give for it—that is, whether that opinion is more accurate and more plausible than its negative opposite which is also defended by important theologians and jurists—is beside the point. What is certain is that although the common opinion would not be the more accurate one, this opinion of theirs is so plausible and in such current use, that a judge who applies it to this situation ought to be of a quiet and tranquil conscience. On the other hand, I fail to understand how, when it comes to such a dreadful crime and one which is so dangerous for the state, and when there are equally important arguments on both sides, a judge can off-handedly choose the opinion which is not more likely to be true,

269

Ovid, Metamorphoses 8.477. Althaea’s son, Meleager, killed his uncles and Althaea then killed him in revenge.

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iustitiae exequendae retardationem, et tantum non evidens periculum nocentissimos magos debitae poenae eripiendi. Secundo conclusioni obiiciunt, pro Germania ubi de hac quaestione tum fuit compulsatio. Germanos Iudices oportet in imperio ad Imperatorias constitutiones criminales a Carolo v conscriptas, velut ad Cynosuram vel regulam Lesbiam, iudicia exercere; non tantum in modo poenarum, sed etiam in iudicii ordine et processu; quare nec licet illis alia indicia admittere, quam quae in illis constitutionibus exprimuntur; nullo servato discrimine exceptorum vel non exceptorum, quia huius discriminis constitutio illa non meminit: arg. lib. semper in stipulat. D. De reg. Iur. Hippolyt. de Marsil., cons. 24, n. 21 et seq., Menochius Praeses Mediolan. lib. 2 De arbitr., cent. 5, casu. 474, n. 42. Carolina vero constitutio inter caetera indicia maleficii non ponit duorum vel plurium denunciationem: vide illam art. 44. Non est ergo in Germania curandum hoc indicium aliis destitutum. Respondeo: In hoc argumento hoc solum verum est, sequendam pro norma Germanis illam constitutionem, in iis quae illa cavet; caetera falsa. Primo, non licere iudici alia indicia sequi, quam illic posita; hoc negandum. Nam Caroli mens non fuit omnia indicia commemorare, quae sunt fere infinita, sed quaedam ponere, eaque leviora quam sit denunciatio, quae Iudici liceat sequi; quis nescit illum Ulpiani, leges non posse ita scribi, ut omnes casus qui quandoque inciderint comprehendant; et ideo illum qui Iurisdictioni praeest interpretatione ad similia procedere, et ius dicere debere? Lib. neque ad seqq. D. de legib. Quare, quod caeteris legibus Imperatorum commune est, haec Carolina ex aliis iuris scripti et consuetudinarii decretis interpretationem admittit, cum non appareat Carolum voluisse per eam communia vel particularia regionum iura tollere; contrarium potius colligitur, quoniam ipse Carolus in locis nonnullis illarum Constitutionum, se Iudicemque remittit ad ius commune et consilium Iureconsultorum: licet ergo in non expressis Iudici haec sequi, maxime si confirmentur recepta in locis illis praxi, et decisionibus iudiciorum. Miratus autem sum vehementer quendam in causa consultum, rerum iudicatarum autoritati de hoc crimine conatum detrahere. Prudentius eaedem illae duae Bavaricae Academiae Facultates §1 scripti praefati asseruerunt: “Magistratui et iudici saeculari plurimum profuturum, si videant aliquot processus sagarum habitos in

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(nor, indeed, equally likely to be true), openly tack on delay to the justice he should be pursuing, and simply not be aware of the danger of rescuing entirely culpable workers of magic [magos] from their due punishment. An objection is raised to the second conclusion on behalf of Germany where this question was contentious at the time. German judges in the Empire have to deliver their judgements in accordance with the Imperial Criminal Constitutions drawn up by Charles v, as though these were their pole-star, or the rules for writing sapphics, not only in regard to the means of punishment, but also to the order and procedure of the trial. Consequently, they are not allowed to admit evidence other than that which is described in those Constitutions, and there is no distinction preserved between offences which fall, or do not fall, outwith the normal legal rules, because the Constitution does not mention this distinction. (Argument in ‘always in stipulations’, Digest, ‘the [various] rules of [ancient] law’ [= 50.17.34]; Ippolito de Marsili, advice 24, number 21 and ff.; [Giacomo] Menochio, presiding judge in Milan, Cases which depend on Decisions taken by Judges Book 2, century 5, case 474, number 42.) The Caroline Constitution, however, does not include denunciation by two or more persons among all the other pieces of evidence of malefice. (See its article 44.) In Germany, therefore, there is no call to pay attention to this piece of evidence when it is not accompanied by others. My answer: the only accurate thing this argument says is that that constitution should be followed as the rule for Germans in regard to the things it stipulates. Everything else is inaccurate. First, the judge is not allowed to follow pieces of evidence other than those mentioned by the Constitution. This I must deny. Charles’s intention was not to mention every piece of evidence— there is an almost infinite number of these—but to record some of them, those which are of less importance than the denunciation, which the judge is allowed to follow. Who does not know the saying of Ulpian, that laws cannot be written in such a way as to cover every eventuality, and therefore that he who presides over the administration of justice ought, in his interpretation of it, to proceed to similar cases and say what the law is? (‘Not’ in Digest, ‘the laws’).270 I am, however, surprised that one person who has been consulted about the case has made a really strong attempt to disparage the authority for determining matters in relation to this crime. The two Faculties of the Bavarian university whose written comment I quoted earlier were more sensible when they said, ‘It will be of very much more use to the magistrate and the secular judge if they see to 270

The reference is to Digest 2.1.10, whose title is ‘administration of justice’ rather than ‘the laws’. Ulpian actually says here that a judge must not say what the law is in his own case, nor in that of any of his dependants or acquaintances.

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vicinis locis. Nam ut verisimile facinora sagarum vicinarum esse similia; sic etiam similiter fere procedendum.” Sic illi optime. Nec alia puto bonorum et peritorum iudicum mens unquam fuit, quam caeterorum acta iudicialia, res alibi et in eo|dem quoque consistorio iudicatas, maximi facere, et (quando de errore non liquet) exacte sequi. Ideo tanti fiunt in Germania decisiones Camerae Spirensis, in Francia Lucii et Paponi Arresta, Neapoli decisiones Afflicti et aliorum, per totam Ecclesiam decis. Rotae Romanae, etc. Non facile Iudici praedecessorum vestigia deserenda, vel transferendi termini, quos maiores eius posuerunt. Sed legibus (aiunt) non exemplis iudicandum. Sane si legibus exempla repugnent, quod non est in praesenti. Secundo falsum, quia illic non fit mentio discriminis inter excepta et non excepta crimina: ideo iudici Germano discrimen hoc negligendum. Est argumentum nihili, et mere negativum. Sed pergunt argumenta congerere communia aliis nationibus. Nam: Tertio probant suam negativam sententiam, in criminalibus, ut reus condemnetur, debent probationes esse luce meridiana clariores: lib. Sciant cuncti. cap. De probation. et cap. sciant. 2, q. 8, Bald. cons. 257, verba inquisitionis, col. 2, vol. 1, per tex. in lib. Siquis. cap. Ad leg. Iul. Maiest. ergo et indicia, ut reus torqueri possit, quod tenent: Marsil. cons. 101, n. 13, et Roland. cons. 16, n. 29 et 30. lib. 1. Quis autem dicere ausit duorum vel plurium complicum nominationem esse indicium clarius luce meridiana?

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it that several witch-trials [processus sagarum] be held in neighbouring localities, because it is likely that the crime of neighbouring witches [sagarum] are similar and so proceedings against them should also be done in a more or less similar way.’ This is very well said, and I do not think the intention of morally good, experienced judges has ever been other than to treat all other judges’ judicial acts and matters judged elsewhere and in the same [kind of] courtroom as very important, and to follow them precisely, (when there is no obvious error). This is why people make so much of the decisions of the Reichskammer in Speyer in Germany, the arrêt of Lucas [de Penna] and [Jean] Papon in France, the decisions of [Matteo d’] Afflitto and others in Naples, and why the whole Church [acknowledges] the decisions of the Roman Rota, etc.271 A judge should not willingly abandon the footsteps of his predecessors or cross the limits set by his betters. But, (they say), one should make a legal decision in accordance with the laws, not precedents. That is certainly true if the precedents disagree with the laws, but this is not so in the case we are dealing with. Secondly, it is not true that there is no mention in the Constitutions of a difference between crimes which fall outwith the normal legal rules and those which do not, and in consequence a German judge should not ignore this distinction. It is a worthless argument and one which is merely negative. They prosecute arguments, however, so that they can manufacture things to have in common with other nations.272 Thirdly, they prove their own opinion negative. In criminal cases, so that the accused can be found guilty, proofs ought to be clearer than the sun at mid-day—(‘let everyone know’, Codex ‘proofs’ [= 4.19.25] and chapter ‘let them know’ 2, question 8; Baldo [degli Ubaldi], Volume 1, column 2, advice 257, ‘the words of investigation’ on ‘if anyone’, Codex on the Lex Juliana dealing with treason [= 9.8.3 preface])—and so must be the evidence which will allow the accused to be tortured, as [Ippolito] Marsili, advice 101, number 13, and Rolando [della Valle] Book 1, advice 16, numbers 29 and 30, say. But who has been rash enough to say that naming by two or more accomplices is evidence which is clearer than the sun at mid-day?

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Lucas de Penna, (c.1325–c.1390), was a Neapolitan jurist, known for his commentary on three Books of the Codex of Justinian, which was printed in 1512. Jean Papon, (1505/1507– 1590), published Le Recueil d’Arrestz Notables des Cours Souveraines de France in Lyon in 1556. Matteo d’Afflitto, (c.1447–1523), a Neapolitan jurist, wrote principally on feudal law, but also published a commentary on Justinian’s Codex. At this point in the text, the word ‘because’ is printed all by itself. It seems to have nothing to do with anything which follows and is therefore omitted in the translation.

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Respondeo: Non valere consequentiam, sicut nec a captura recte procedas ad illationem de quaestione. Etenim ad capturam seu incarcerationem leviores, ad torquendum urgentiores requiruntur, sed tamen non luce meridiana clariores sicuti ad condemnandum: ut docent erudite Iul. Clarus d. § fin., q. 20, et Menoch. lib. 1 Praesumpt., q. 88 et 89, Farinac. d. q. 37, sub. n. 5, maxime in his atrocioribus, in quibus honor, substantia et vita hominis periclitatur: glos. et Abb. in cap. litteras. de prasumpt., Gigas de las. Maiesta. tit. Quomodo et per quos q. 29, Decian. in Crimin., lib. 7, cap. 45, n. 1. Clariorum ergo probationes requiret Iudex ad condemnandum; clarae sufficient ad torquendum. Sicut enim modus torturae a Iudicis pendet arbitrio; sic etiam decernere, quae indicia sint sufficientia ad torturam, et quae non, et quae probationes et praesumptiones validae: legendus hac de re idem Menochius De arbitr., casu. 90, n. 9 et 270, n. 3. Quartus aries negativae sententiae est: In caeteris criminibus sociorum nominationes non gignunt indicium ad torturam: Ioseph. Mascard. vol. 3 De probat., concl. 1311, Menochius lib. 2 De arbitr., cent. 5, cas. 474: Ergo nec in exceptis. Eadem enim est ratio in utrisque, cum excepta tantum vocentur respectu poenae gravioris, quam iudex in his atrocibus potest imponere; non vero respectu processus et ordinis iudiciarii, quem nec in his licet iudici alterare seu transgredi: sic docent Hippol. de Marsil. in Praxi crim. §. diligenter. n. 96 et cons. 52, n. 16 et cons. 24, col. antepen. vers. restat respondere, Grammat. vol. 34, col. fin., Bossius trac. De indic. ante torturam, sub n. 78, Roland. cons. 12 n. 72, lib. 3. Et licet concederetur, in his criminibus posse iudicem excedere iuris communis regulas, etiam in modo procedendi; hoc deberet restringi ad inquirendum,

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My answer is that the argument is not a strong one. Just as you cannot correctly proceed from someone’s being arrested to the conclusion that he should be tortured, and while fairly slight [proofs] are required to have someone imprisoned after his arrest, and more pressing ones to have him tortured, [proofs] which are clearer than the sun at mid-day are not required to have him found guilty, for example, as we are told learnedly by Giulio Claro, question 20, end of the paragraph; [Giacomo] Menochio, Presumptions Book 1, questions 88 and 89; and [Prospero] Farinacci, op.cit., question 37, under number 5. This is most especially so in the more atrocious [crimes] in which a person’s honour, fortune, and life are endangered. See the glossators and Nicolò de’ Tudeschi (Abbas), Presumptions, chapter ‘letters’; [Girolamo] Giganti, Treason, the heading ‘how and by whom’, question 29; [Tiberio] Deciani, Criminal Law Book 7, chapter 45, number 1.273 A judge, therefore, requires clearer [proofs] to find someone guilty, [whereas] clear ones will be enough to have him tortured because, just as the method of torture depends on the judge’s decision, so too it is for him to decide which pieces of evidence are sufficient to warrant torture and which are not, and which proofs and presumptions are legally valid. (On this subject you should read Menochio, Cases which depend on Decisions taken by Judges, case 90, number 9 and case 270, number 3). The fourth battering-ram of the negative opinion is that in any other crime, naming by associates does not constitute evidence [sufficient] to warrant torture. ([Giuseppe] Mascardi, Proofs Volume 3, conclusion 1311; Menochio, Cases etc., century 5, case 474, ‘therefore not in crimes which fall outwith the normal legal rules’). The reason is the same in both types of case, since those outwith the normal legal rules are so called in respect of the more serious penalty a judge can impose in these dreadful crimes, but not in respect of the judicial action and the order of its proceeding which a judge is not allowed to alter or transgress during them. This is what is said by Ippolito Marsili in his book on criminal practice, paragraph ‘carefully’, note 96; advice 52, number 16, and advice 24, the column before the line ‘it remains to reply’; [Tommaso] Grammatico Volume 34, end of column; [Egidio] Bossi’s treatise on evidence before torture, under number 78; Rolando [della Valle] Book 3, advice 12, number 72. Even though it may be conceded that in these cases the judge can go beyond the rules of the common law, even in the way he conducts the trial, this ought to

273

Tiberio Deciani, (1509–1582), was an eminent Italian jurist. His Treatise on the Criminal Law was published posthumously by his son Nicolò in Venice in 1590, even though it was unfinished.

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ut loquuntur Decian. cons. 18, n. 42, et Menoch. d. cons 100, n. 66, et quo ad alia modicum damnum adferentia, non quoad torturam, cuius damnum est gravissimum, et in qua receptum ne excepti quidem criminis reum sine indiciis torqueri posse: lib. 1. l. maritus D. de quaestion., Alb. in Rub. ad lib. Iul. Maiesta. n. 3, vers. et tamen in isto casu | Follerius in Pract. crim. vers. quod suffocavit n. 58, Lud. Carrer. in 2 tract. De indic. et tortura § circa quartum. n. 78, Gabr. Zaraina in Addit. ad Mattessillani sing. 55, vers. et haec regula ampliatur. Multa hoc argumentum involuit, quorum contrarium verius puto. Imprimis nego consequentiam a delictis caeteris ad excepta; ipsum enim nomen satis indicat peculiarem iudicis circa haec potestatem. Nimirum quod in iis possit Iudex transgredi statuta et communes iuris regulas, et sequi aequitatem ac conscientiam suam, prout rem postulare iudicat: iuxta doctrinam Baldi in lib. quid ergo § poena gravior D. de his qui not. infam. communius receptam etiam ab ipso Marsilio in lib. 23. D. De quaestion. Docent hoc Decian. d. n. 42, Menoch. de arbitr. q. 84, n. ult. et d. cons. 100, num. 51, Binsfeld. post praeludia., concl. 6, vers. regulare et iuridicum. Quod expeditissimum est quoad iudices supremos, qui instituta, ut inferiores quidam, non iurant. Sic ex Iasone et aliis Baiardus addition. ad Clarum. §1, n. 14. Nec procedit hoc solummodo in Casibus iure communi quoad haec crimina expressis, sed semper et quoad omnia iuris positivi decreta. Nam alioqui non forent crimina a iuris positivi regulis abso-

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be restricted to his investigation, (as Deciani, advice 18, number 42 and Menochio, advice 100, number 66, say), and to other things which cause moderate hurt—but not torture, the hurt done by which is very severe—and in a situation where it is accepted that the accused cannot be tortured in the absence of evidence, not even in the case of a crime which falls outwith the normal legal rules. (‘A husband’, Digest, ‘on investigations’ [= 48.18.20]; Alberto [Galeotti (?)], heading on the Lex Juliana on treason, number 3, at about ‘and yet dealing with this case’; [Pietro] Follerio, Criminal Practice, at about ‘he suffocated’, number 58; Lodovico Carerio in his second treatise on evidence and torture, about paragraph 4 of number 78; Gabriele Saraina in his addition to Mattessillani, in Noteworthy Things 55, at about ‘and it is amplified by this rule’.)274 This argument involves many things, and I think their opposite is more true. To begin with, I deny the chain of reasoning which goes from all the other transgressions to those which fall outwith the normal legal rules, more than anything else the notion that a judge can transgress what is laid down [for him to follow] and the common rules of the law, and follow equity and his conscience the way he decides the case demands, according to the teaching of Baldo [degli Ubaldi] on ‘Why therefore’, and ‘a more serious penalty’, Digest, ‘those who are well-known to be disreputable’, [= 3.2.13 preface and 3.2.13.7], which is quite commonly accepted, even by Marsili himself on passage 23, Digest ‘investigations’. [Tiberio] Deciani, number 42 says this, as do Menochio, Cases etc., question 84, last number, and advice 100, number 51, and [Peter] Binsfeld after his prefatory remarks, conclusion 6, at about ‘it is in accordance with the rules and administration of justice’.275 This is very expeditious in the case of High Court judges who do not swear to ordinances, as some judges in the lower courts do. ([Giambattista] Baiardi bases this on Giasone [dal Maino] and others in his Additions to Claro, number 14, paragraph 1).276 Nor does this appear merely in cases formulated by common law with respect to these crimes, but always with respect to all the decrees of positive law, too, because otherwise they would not be crimes which fall completely outwith the rules of positive law—which they 274

275 276

Alberto Galleotti (early fifteenth century) wrote A Short Compendium of Questions, or, A Golden Pearl, which was intended to reconcile Roman law with later North Italian law. Pietro Follerio first published his Criminal Practice in 1554. Gabriele Saraina (floruit sixteenth century) was a jurisconsult from Verona and published his Noteworthy Things from All the Most Famous Scholars (‘Singularia Omnium Clarissimorum Doctorum’) in 1560. The reference is to pp. 225–227 of the second edition, published in 1560. This is a reference to Part 2 of his Confessions. The words open the seventh point of his sixth conclusion and appear on p. 130 of the 1579 edition. Giasone dal Maino (1435–1519) taught law at the University of Pavia. Giambattista Baiardi, (1530–1600), published his Additions and Annotations to Giulio Claro in Parma in 1597.

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lute excepta, ut sunt; et vix est ullum crimen de quo non invenias aliquid in iure speciale, et a communibus iuris regulis exceptum, et sicsi quoad quaedam tantum et non quoad caetera quoque dicas vocari excepta, vix ullum crimen foret, quod non diceretur exceptum, quo nihil absurdius. Hoc voluit, quod dico, Farinac. q. 18, n. 60. Quare ipsemet Maschardus inter illa distinguit, qui suam conclusionem cum ampliationibus limitat, ut locum non habeat in criminibus exceptis. Et quoad nostram quaestionem optimam rationem in quodam suo consilio insignis Academia friburgensis Brisgoiae, anno 1601, reddidit his verbis: “Quia quod socii criminis adversus socium sufficiens indicium ad torturam non praestent, id operatur infamia, quae iure positivo testem repellit, non autem iure naturali inhabilem reddit Binsfeld. d. cons. 6, duob. 2, illat. 6. Atqui crimina excepta ad leges iuris positivi non exiguntur, sed ab iis sunt exempla, concessumque iudici, ut ex probationibus iure naturali sufficientibus procedat: atqui iure naturali socius criminis a testimonio non repellitur. Hinc unius socii testimonium adversus socium in criminibus exceptis, in quibus socius de sociis interrogari potest, indicium ad torturam praestare potest, iuxta Abbat. et Ioan. de Imola co. 2, in cap. 1 De confess. et Anton. Gomes. tom. 3, cap. 11, n. 18.” Bona certe ratio diversitatis, et quae ostendit naturam et libertatem criminalis iudicii in exceptis, non esse restringendam ad poenae excessum, in quo Mars. et sequaces, valde halucinantur. Quam plurima id ostendunt, peculiaria etiam quoad procedendi ordinem, quorum pleraque seqq. quaestionibus ostendentur, nunc suffecerit. 10. quod socius de socio contra iuris regulas potest interrogari. gloss. et dd. in lib. fin. C. De accus. 20. quod hic testes singulares plu-

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do—and there is scarcely any crime about which you cannot find something in a particular law which also falls outwith the general rules of a law, and so if you can say [these crimes] are called ‘exceptions’ in respect of certain things only and not in respect of everything else, there would be scarcely any crime which could not be called an exception, which is a completely absurd thing to say.277 (‘He wanted what I say,’ [Prospero] Farinacci, question 18, number 60). This is why [Giuseppe] Mascardi himself distinguishes between them, and he puts limits upon his conclusion by adding amplifications, so that it does not apply to crimes which fall outwith the normal legal rules. As for the question I am dealing with, the distinguished University of Freiburg im Brisgau gave a very good explanation in one of its pieces of legal advice in 1601, as follows. ‘Partners in crime do not furnish evidence against an associate sufficient to warrant his being tortured. A bad reputation, however, which, (according to man-made law), means a witness is not heard, but is not rendered incapable under natural law, does have this effect. (Binsfeld [Confessions] Part 2, conclusion 6.) Moreover, crimes which are exceptions to the legislation of positive law are not required [to make this happen], but precedents [are drawn] from them. A judge is permitted to proceed from proofs considered sufficient by natural law, and a partner in crime is not prevented by natural law from giving evidence. So, the testimony of a single partner against his partner in crimes which fall outwith the normal legal rules, in which one partner can be interrogated about his partners, can furnish evidence [sufficient] to warrant torture, according to Nicolò de’ Tudeschi (Abbas), and Giovanni de Imola, Confessions, chapter 1, column 2 and Antonio Gómez, Volume 3, chapter 11, number 18.’ The explanation of diversity [of opinion] is certainly a good one, and it shows that the character and freedom of a criminal trial in ‘exceptional’ cases should not be restricted to exceeding [the usual] penalty—a subject on which [Ippolito] Marsili and his followers talk absolute nonsense. The more often they demonstrate this, the more obviously peculiar to themselves will be what they say about the way a trial should be conducted too. Several of these [peculiarities] will be demonstrated in the questions which follow. For the moment it will be enough (1) that a partner [in crime], contrary to legal regulations, can be questioned about his partner, (interpreters of the law and scholars on the end of Codex, ‘accusations’ [= 9.2.17.1]); (2) that in this case, the more indi-

277

Positive law, as opposed to natural law, is man-made and specifies or requires an action to be taken.

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res socium denunciantes probant: Anchor. cons. 277, v. non obstat secundum, Ioan. Crottus Tract. de testib. et Gigas postea citandi, idque quo ad torturam, ut tenent Bossius tit. De indiciis, num. 159, et Clarus d. q. 21, n. 9, unde et illud infertur, non esse veram limitationem quorumdam sentientium haec, licet in inquisitione similibus vera sint, in tortura tamen ea locum non habere. Longe verius est in criminibus exceptis (quale est Magiae) etiam torturae quantitatem et qualitatem a iudicis arbitrio dependere: lib. 1. l. quaestio|nis modum de quaest. post., Bald. Gandin. et alios Menoch. De arbitr. cas. 271, n. 2, item an et quando iteranda quaestio Bald. in lib. 2, cap. quod met. causa., Marsil. in d. 1. quaestionis modum, Menoch. cas. 272, n. 4; tertio arbitrari quae indicia sint idonea ad torturam, post alios Menoch. ibidem cas. 270, n. 3; denique ut procedat in hoc crimine quo sibi modo procedendum putat. Sic ibi Menoch. cas. 474, n. 34, referens ad hoc Bald. Salyce. Boer. aliosque. Atque ita lux illata iis quae de exceptis criminibus obnubilabantur. Quinta ratio adversariorum est: unus testis inhabilis et insufficiens, ne in criminibus quidem exceptis ullum facit indicium ad torturam, ut communiter omnes concedunt: ergo neque plures. Proba est consequentia, quia inhabilitas et insufficientia testium, eorum multitudine nec tollitur, nec suppletur. Duo enim vel plura quae in sua specie sunt imperfecta, nequeunt unquam facere unum perfectum, sicut nota mullitatis in numeris arithmeticis, quantumvis illam crebro multiplices, nunquam per se efficient ullum ens numerabile. Est ratio Maschardi d. vol. 3, concl. 1311, n. 18. Verum haec argumentatio, quantumvis acuta videatur, repugnat tamen sensui communi etiam idiotarum, quibus lumen rationis humanae dictat plus credendum rumori et assertioni multorum, quam unius. Et, si non plus virium

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vidual witnesses denounce a partner, the more they prove [the case], ([Pietro d’] Ancarano, advice 277v.) There is no objection to this according to Giovanni Crotto in Treatise on Witnesses and [Girolamo] Giganti, both of whom I shall be citing later; and this is what [Egidio] Bossi, under the heading ‘evidence’, number 159 and [Giulio] Claro, op.cit., question 21, number 9 say in regard to torture.278 Consequently, one also deduces that there is no actual limit to the number of those who think this, even though these points are true in the case of investigation and similar situations. They have no place, however, when it comes to torture. It is very much more accurate to say that when it comes to crimes which fall outwith the normal legal rules, the amount and type of torture depend on the judge’s decision. (On torture, Menochio, following Baldo [degli Ubaldi], [Alberto] Gandino, and others, Cases etc., case 271, number 2 on the method of torture. Likewise, whether and when torture should be administered, Baldo on Codex 2, ‘because the reason for the method’, Marsili on the method of torture, and Menochio, case 272, number 4); (3) what evidence is considered sufficient to warrant torture, (Menochio, following others, op.cit., case 270, number 3); (4) so that, in respect of this crime, [the judge] can proceed the way he thinks he should proceed, (see Menochio, op.cit., case 474, number 34 where, for this purpose, he refers to Baldo, [Bartolomeo da] Saliceto, [Nicolas] Bohier, and others.) So, this is how light is shed on those things which were rendered obscure in relation to cases which fall outwith the normal legal rules. The fifth argument used by objectors is that a single witness is unsuitable and insufficient, and not even in crimes which fall outwith the normal legal rules does he provide any evidence which warrants torture, as everyone everywhere agrees. Therefore, having more witnesses does not result in a proof, either, because the unsuitability and insufficiency of witnesses is not removed or made good because there is a large number of them. Two or more things which are imperfect examples of their kind cannot ever make one which is perfect, just as zeros in arithmetic will never, of themselves, make any number you can count, however often you multiply them together. (This is [Giuseppe] Mascardi’s argument in op.cit., Volume 3, conclusion 1311, number 18.) However acute this argumentation may seem, however, it clashes with the common sense even of those with no education, to whom the light of human reason dictates that greater credence should be given to the common talk and assertion of the many than of the one; and even if two people were not more 278

Giovanni Crotto (floruit mid sixteenth century) lectured on law in the University of Bologna. The Treatise on Witnesses was a compilation of essays by several legal scholars and appeared in 1569.

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haberent duo quam unus, certe etiam unius dicto stare deberemus, cum tamen Salvator noster restrinxerit hanc credendi in iudiciariis necessitatem ad ora duorum vel trium testium: Matth. 18, v. 16, Ioan. 18, v. 17. Etiam in mortis supplicio ingerendo, propter crimina, Deuter. 17, v. 6. Si dicas illic agi de testimoniis habilium, urgeo. Sicut duorum habilium testimonia possunt sufficere ad condemnationem, ubi unius habilis testim non sufficeret: sic etiam ad suspicionem ac verisimilitudinem in animo iudicis gignendam, plus poterunt duae denunciationes inhabilium, quam una unius inhabilis. Deinde duplex potest considerari inhabilitas. Una quae prorsus inhabilem facit, altera quae tantum inhabiles secundum quid; seu, quod ferme recidit in idem una inhabilius iuris naturalis, altera tantum iuris positivi. Quae vim nullam ad aliquid obtinent, ea nec plura quicquam efficiunt, ut est cernere in infantibus et amentibus, quoad testimonium ferendum; isti similes sunt notae Arithmeticae indici nullitatis, quam cifram vel, cero vocant; similes sunt candelis non accensis; inferas in aulam obscuram centum, non plus quam nulla, vel una conlucabunt. Qui vero vim aliquam obtinent, licet exiguam et imbecillam, ii quod soli nequeunt, aliis similibus adiuncti interdum non nequeunt; similes unitati Arithmeticae, quae sola non efficit numerum, sed si tres unitates iungas, efficient ternarium; similes sunt selibribus candelis accensis earum, quod una non potest implere spacium luce sua poterunt plures implere; similes sunt guttis aquae; quod una nequit, plures excavant. De prioris ergo generis, seu de omnino, et ex naturae defectu inhabilibus procedit argumentatio, et intelligendi dd. contrarii: Alex., Marsil., Felin., Mascard. et alii. Nam tales sunt furiosi et infantes, quoad testimonii dictionem. Sed de generis posterioris inhabilibus non procedit, qui propter iuris positivi impedimentum inhabiles sunt, et ideo fecundum quid tantum. Nam iure naturali vel criminosissimis, qui nihil unquam credendum asserat, mihi sit

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persuasive than one, we should certainly have to abide by what one person said, because our Saviour confined what needs to be believed in legal situations to the evidence given by one or two witnesses, (Matthew 18.16 and John 18.17), and this is also the case when the death penalty is being inflicted, (Deuteronomy 17.7.)279 If you say that in these passages are dealing with the testimonies of suitable witnesses, I quite agree, and just as the evidence of two suitable witnesses cannot be enough to have someone found guilty when the evidence of one suitable witness would not be sufficient, so two denunciations by unsuitable witnesses will be able to do more than one by a suitable witness to rouse in the judge’s mind a suspicion that the charge is likely to be true. Secondly, unsuitability can be thought of as twofold: one [aspect of which] makes a person unsuitable, the other which simply makes people unsuitable in a particular respect or, (what amounts to nearly the same thing), the one refers to unsuitability in natural law, the other to unsuitability in man-made law. When something does not possess the ability to do something, more of it does not give it the ability to do it, as one can see in small children and mad people when it comes to the question of giving evidence. They are like the wellknown arithmetical marker of nothing called a ‘cipher’ or a ‘zero’. They are like unlit candles. You can take a hundred of them into a dark hall and they will shed no more light than if you took none or one. But people who do have some ability [to do something], even though that ability may be small and weak, can sometimes do what they cannot do alone after they have been put together with others like them—like the arithmetical figure ‘one’ which does not form a number by itself, but will make three if you put three single ones together. They are like lit candles of six pounds’ weight. One of them cannot fill with its light the space more of them will be able to do. They are like drops of water. One of them cannot hollow something out: more of them can. So, this way of arguing is valid when it comes to those people who belong to the first kind, and those who are entirely unsuitable because of a defect in their character. Lunatics and small children are like this when it comes to giving evidence. (Scholars who should be understood as taking the opposite view are Alessandro [Tartagni], [Ippolito] Marsili, Felino [Maria Sandeo], [Giuseppe] Mascardi, and others.) But the argument is not valid when it comes to the second kind of people who are unsuitable because of an impediment of man-made law, and are therefore simply unsuitable in a particular respect, because when it comes to natural law, I do not believe there is anyone who never says anything one can 279

John 18.17 is clearly a misprint. 18.17 records Peter’s warming himself by a fire. 8.17 says, ‘In your law it is written that the testimony of two witnesses is valid’. Deuteronomy 17.6 adds that no one must be put to death on the evidence of only one witness.

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incredibilis; si nihil illis credendum, | cur etiam positivo iure in hoc crimine interrogantur, et ad denunciationem admittuntur? Cur etiam ut denuntient quaestionum cruciatu adigunter? Inanis crudelitas foret, et cassa detestandaque saevitia. Esto: plus argumentis quam testibus credatur; hoc non in his solis infamibus obtinet, nec verum nisi quando argumenta testimoniis praeponderant; et non quia minus testibus, ergo nihil immo quia minus, iam aliquid; de his inhabilibus secundum quid, agimus, in quibus quilibet perse gignit in animo iudicis aliquam praesumptionem, licet talem qualem; plures vero idem asserentes simul iuncti fortius penetrant animum et crudelitatem, adeo ut ex plurium dictis et praesumptionibus, collective simul oriatur uvum indicium seu probatio, quae iudici possit videri sufficiens ad torturam. Hoc tenuerunt Friburgenses d. anno, et etiam clarissima facultas iuris Patavina, in responsionibus ad eamdem quaestionem nondum excussi, sed mensis Decembris initio anno 1601 datis, et aiunt hanc esse (ut est) doctrinam Bart. in d. § idem Cornelio, et de mente Nattae cons. 298, n. 10 et sic resolvisse multas. Corn. in lib. 1, cap. de testam. n. 35, et cons. 42, col. fin., lib. 1. cons. 172, n. 20, lib. 2. Cravet. cons. 9, n. 12 et 99, n. 10 et ipsum Roland. a valle cons. 98, n. 34, cum aliis citatis a Prospero Farinac. q. 43, n. 41, et fusius q. 62, n. 317 et 341. Ne quis autem me mihi ipsi obiiciat, quod lib. 5, Magicar. disquis. sect. 5 § quarto quantumvis tenuerim contra multorum praxim, quantumvis multiplicentur depositiones infamium et complicum nunquam iudici procedendum ex his solis ad condemnationem, ubi utor argumento isto Mascardi, et multa produco quae cum sint imperfecta, nequeunt simul omnia unum perfectum producere, v.g. multa venialia, unum mortale, multa aegra, unum sanum, multa non alba, unum album, multa tepida, unum calidum etc., quando res non sunt subordinatae ad unum finem natura sua sicut una depositio natura sua non subordinatur alteri; quo igitur pacto nunc assero duas nominationes in vicem

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believe—even the most criminal types—and if one does not believe anything they say, why are they questioned under positive law with regard to this crime and allowed to denounce someone? Why, too, are they urged by the pain of torture to denounce someone? It would be a useless cruelty and a purposeless, detestable savagery. Very well, then! Suppose one believes the proofs more than one does the witnesses. This does not obtain in the case of these disreputable people alone, but only when the proofs are carrying more weight than the witnesses and not because the proofs are carrying less weight than the witnesses, (and therefore none at all because it is less.) At the moment I am dealing with those who are unsuitable in some particular respect, and any one of these, by himself, gives rise to some presumption in the judge’s mind, although that presumption is such as it is. But the more people who jointly say the same thing on the same occasion, the more forcibly they penetrate his mind and his cruelty, to such an extent that, as the result of what those several people collectively and simultaneously say and presume, there arises a single opinion or proof which the judge is able to think is sufficient to warrant torture. The Freiburg faculties in 1601 were of this opinion, as is the very famous Faculty of Law in Padua in its replies to the same question and are dated the at the beginning of December, 1601, (although I have not yet inspected these thoroughly). They also say that this is the teaching of Bartolo [da Sassoferrato]—as indeed it is—on the paragraph ‘the same to Cornelius’, [= Digest 48.18.1.4], and reflects the intention of [Marco Antonio] Natta, advice 298, number 10, and that in this way he answered many questions. (Cornelius Book 1, number 35 on testimonies and Book 1, advice 42, end of the column; Book 2, advice 172, number 2; [Aimone] Cravetta, advice 9, number 12 and advice 99, number 10; and Rolando [della Valle] himself, advice 98, number 34, together with others cited by Prospero Farinacci, question 43, number 41 and, at greater length, question 62, numbers 317 and 341.) But in case anyone makes the objection that in Investigations into Magic Book 5, section 5, paragraph 4, ‘however often’, I argued, contrary to what many people actually do, that however much the depositions of disreputable people and accomplices are multiplied, a judge should never proceed to a guilty verdict based on these alone, when I make use of Mascardi’s argument, I also put forward [the argument] that there are many things which, because they are imperfect, cannot at one and the same time produce one thing which is perfect: for example, many venial sins and one mortal sin, many things which are sick and one which is healthy, many things which are not white and one which is, many things which are lukewarm and one which is hot, etc. When things are not, by their nature, subordinated to a single end, (just as one deposition is not, by its nature, worthy of less consideration than others), how is it that I now main-

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firmare, si non subordinantur invicem? Huic obiectioni occurro, reddita diversitate rationis cur aliud obtineat in depositione plurium inhabilium quoad condemnationem, et in eadem aliud quoad torturam. Singulae in ordine ad condemnationem sunt plane ineptae ad hunc effectum, nec ad eum subordinantur, quia condemnatio debet inniti iudiciali certitudini, quam quia tales nunquam possunt gignere, neque ad hoc intelligendae subordinari. Singulae vero nostrae nominationes infamium non sunt prorsus ineptae; ad quaestionem, sed ad hanc singulae tantum sunt infirmae et secundum quid ineptae (ut dictum superius), quia tortura innititur tantum verisimilitudini et opinioni, quam singulae possunt aliquam, licet qualem qualem gignere, atque ideo ad hunc finem censentur in vicem subordinari, et adminiculari. Et ista ratio confirmatur exemplis a me positis, in quibus inest privatio rei ad quam producendam deberent concurrere, ut in tepido est privatio calidi potius quam calor imbecillus, in non albo albi contradictio, in aegro privatio sanitatis; at veniale peccatum specie distinguitur a mortali. Recte igitur illic aliud tenui de condemnatione, aliud nunc hic respondi de tortura, neque ista secum pugnant. Sexto argumentatur: propositio quae asserit plurium complicum nominationem per se indicium sufficiens torturae praebere, in hac fusa et ampla | extensione, plane nova est, nec usquam recepta; opinio vero aut etiam lex non recepta neminem obligat: Menoch. lib. 2 Praesumpt. 2. Novitas etiam merito est suspecta. Confirmatur quia qui videntur illam tenere, variis eam circumscribunt limitibus, quos habes apud Binsfeld. d. concl. 6. Sed breviter. Respondeo: Non esse novam, sed plures eam tenere, quos mox citabo; esse quoque, in praxi fere ubique receptam iuxta Binsfeld. supra et Friburgens. in suo cons. citato. Limites autem illi quibus circumscribitur nihil obstant generalitati assertionis; sunt enim conditiones, quarum plerasque non ipsi admittimus, et eas contineri

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tain that, if one person naming names is no less worthy of consideration than another, two people naming names strengthen what the other person [is saying]? I meet this objection [by asking] why, given the diversity of opinion on the subject, in a deposition given by several disreputable people, should one thing hold good when it comes to finding someone guilty and, in the same deposition, something else hold good when it comes to having him tortured? One person’s [naming names] in a series [of depositions] is clearly entirely inadequate for the purpose of finding someone guilty and does not have this as its underlying purpose, because a guilty verdict ought to be based on judicial certainty, rather than because that kind of naming can never produce [such certainty] and cannot be subjected to this end by interpreting it this way. But, as I said earlier, the individual namings by disreputable people we are discussing here are not by any means inadequate when it comes to interrogation because where this is concerned individual namings are merely not dependable, and inadequate in one particular respect. This is because torture relies upon whether [the namings] are likely to be true and whether [the judge] thinks they are. Individual namings can produce some of this, (although it won’t be much good), and they are therefore considered to have this underlying purpose and be mutually supportive to this end. This argument is confirmed by the examples I provided, in which there is a lack of something to the production of which they ought to be in agreement—something is warm, for example, because of a lack of heat, rather than because the heat is weak; the unco-operative behaviour of [the colour] white in something which is not white; and someone is sick because of a lack of health. In the case of venial sin, however, there is a distinction between it and mortal sin, and therefore I was quite right earlier on to give one opinion about how [a judge] should arrive at a guilty verdict, and a different response here and now in relation to torture. The [two points] are not at odds with one another. Sixthly, a proposition is adduced which says that naming by several accomplices in itself provides sufficient evidence to warrant torture. In this diffuse and full extension, the proposition is clearly novel. But an opinion, or even a law, which has not actually been adopted anywhere is not binding on anyone, ([Giacomo] Menochio Book 2, presumption 2). Its novelty is also deservedly suspect. This is confirmed because those who seem to accept it circumscribe it with various limitations, which you can find in Binsfeld, op.cit., conclusion 6. But my brief answer is that it is not new. Several people, whom I shall cite in a moment, accept it and, according to Binsfeld supra and the advice from Freiburg which I quoted earlier, it has also been adopted in practice almost everywhere. But the limitations with which it is circumscribed do not invalidate the general assertion, because there are conditions, (most of which I do

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in propositione nostra fatemur; nec sunt adminicula proprie dicta seu indicia alia quae nos exclusimus, cum nonnullis circunstantiis de quibus postea. Igitur sic vi via facta per hostes, et quae solent obiici, soluta manent. Restat ut conclusionem nostram affirmativam stabiliamus, quae. Probatur, primo, auctoritate tenentium etiam unius socii dictum sufficere ad torturam, ut Ang. in Pract. sua crimin. quem citat Lud. Bologn. in addit. ad. Guidonem de Suzar. Tract. de indic., n. 71, Blanci et altorum quos retuli supra conclus. 1 in prin. Quorum sententia licet sit minus probabilis, docet tamen quid de plurium nominatione tenuerint. Secundo probatur illorum auctoritate, qui censuerunt plurium nominationes sufficere ad condemnationem: ut Ant. Gomes. tom. 3, var. resol. rub. de probat. delict. rub. num. 18, et sic servari in Cathalonia fatetur Lud. Peguer. Decis. crimin. 5, n. 18. Quorum opinio licet communius reiiciatur (testibus Bossio De indic. n. 165 iuncta num. 77, Marsil. d. § diligenter numero 60, Nicola. Boer, decis. Burdegal, 319, n. 4, Blanco de nidi. n. 384, Farinac. q. 43, n. 39 et 40 et q. 62, n. 73), tamen patet illos pro nostra conclus. stare. Tertio probat authoritas praxis curiar., et doctrina scribentium: Boerii Decis. 319, num. 17, ubi refert sic bis fuisse servatum in Parlamento Burdigalensi ob nominationem duorum et trium reorum, et Curiae Parisiensis hanc esse praxim testatur Papomus lib. 22, tit. 13, arr. 2 et 3, tenet etiam Clarus d. q. 21, n. 9 et n. 11, ubi memorat Thom. Grammat. super capitulis regni attestantem sic servari in regno Neapolitano; idem senserunt Gigas d. tit. quomodo et per quos, q. 8, Aymon cons. 178, n. 3, Roland. a valle, cons. 16, n. 20, lib. 1, Bona-

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not accept), and I maintain they are contained in my proposition. They are not what are properly called ‘supports’ or other pieces of evidence, and I have excluded them, along with several circumstances I shall discuss later. A route, therefore, has been forced through the enemy and the usual objections have been resolved. Now I have simply to establish my affirmative conclusion on a firm basis. This is proved by the authority of those who believe that the verbal evidence of even a single associate is sufficient to warrant torture: for example, Angelo [Gambiglioni] in his work on criminal practice cited by Lodovico Bolognini in his additions to Guido da Suzzara, Treatise on Circumstantial Evidence, number 71; [Marco Antonio] Bianchi, and others whom I mentioned earlier at the beginning of conclusion 1. Their opinion, although less susceptible of proof, nevertheless tells us what they believed about naming by several people. (2) It is proved by the authority of those who thought that being named by several people is sufficient to warrant a verdict of ‘guilty’: for example, Antonio Gómez, Various Resolutions Volume 3, heading ‘the proof of an offence’, number 18. Luis de Peguera says that this is what is done in Catalunya, (Decisions in Criminal Cases 5, number 18).280 This is their opinion, although it is generally rejected, as witnessed by [Egidio] Bossi, Evidence, number 165, taken together with number 77; [Ippolito] Marsili, op.cit., paragraph ‘carefully’, number 60; Nicolas Bohier, Decisions made in the Parlement de Bordeaux, 319, number 4; [Marco Antonio] Bianchi, Evidence, number 384; [Prospero] Farinacci, question 43, numbers 39 and 40, and question 62, number 73. It is clear, however, that these writers support my conclusion. (3) The authority, courtroom practice, and teaching of those who write [on the subject] proves it: [Nicolas] Bohier, Decisions 319, number 17 where he mentions twice that this is the normal practice in the Parlement de Bordeaux as a result of two or three accused persons’ being named, and [Jean] Papon, Book 22, title 13, arrêts 2 and 3, testifies that this is the practice in the High Court of Paris. [Giulio] Claro also maintains this, op.cit., question 21, numbers 9 and 11, where he mentions that, in his [Constitutions], Articles, and [Decrees] of the Kingdom, Tommaso Grammatico attests that it is common practice in the kingdom of Naples. The same was the opinion of [Girolamo] Giganti, op.cit., title ‘how and by whom’, question 8; Aimone [Cravetta], advice 178, number 3; Rolando della Valle, Book 1, advice

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Lodovico Bolognini (1446–1508) was a distinguished jurist from Bologna. Antonio Gómez, (1501–1561), was Professor of Law in the University of Salamanca. Luis de Peguera, (1540– 1610), published his Golden Decisions in Civil and Criminal Cases in Actual Practice (‘Decisiones Aureae Civiles et Criminales in Actu Practico’) in Venice in 1608.

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cos. commun. opin. p. 1, vers. indicium faciunt, Farinacius q. 43, n. 37, Bertazz. cons. 225, n. 20, Lanfranc. in Praxi n. 72, cap. 8, Binsfeld. d. conclusi. 6 Friburgenses et Patavini et Ingolstadienses dd. supra: favet ergo praxis et authoritas Iurisconsultorum. Confirmant plurimae fortes et appositae rationes, ut argumentantur Friburgici, si ad socii nominationem accedat praesumptio seu coniectura, tunc denominatus potest torqueri, secundum omnes dd. atqui secundi socii inculpatio est novum signum seu indicium gignens novam coniecturam seu praesumptionem: ergo tum reus poterit torqueri. Si respondeas esse quidem novum, sed a priore non diversum, nec diversam vim probandi obtinere. Probatur habere diversam et aliud gignere adminiculum quam genuerit nominatio prior. Nam prior erat insufficiens, posterior vero ei addita est sufficiens, quia probatio composita ex duabus speciebus imperfectis, quae tamen eiusdem sunt generis, formae, et substantiae hoc est ex duobus individuis eiusdem speciei infimae in ordine, ad suum effectum plena est et sufficiens: docet Menoci. lib. 1 De praesum. q. 39, n. 3, et seq. per lib. 5, cap. qui n. tutell.; et hoc probatur inductione similium partim physicori | partim iuridicorum, Physica sunt, quae de una et pluribus candelis de una et pluribus guttis lapidem cavantibus superius allata; item de pluribus gradibus frigoris vel caloris cum intendentibus, et ad calidum vel frigidum ut octo perducentibus; de duobus pueris trabem ferentibus, de pluribus Actibus habitum gignentibus, quae cuncta uni soli denegata, possent adduci. Iuridica vero, quia in illis probationibus quae ad unius facti probationem tendunt, quae non prosunt singula, multa iuvant: Bart. et cum secuti alii in d. lib. 1 § idem Cornelio; plures testes singulares deponentes de subordinatis ad torturam sufficiunt, ut docebitur postea, q. 8, ad eamdem sufficiunt plura indicia etiam remota: Bart. et communiter in l. fin. D. de quaestio. Angelus Aretin. in

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16, number 20; [Ippolito] Bonacossa, Common Opinions Part 1, at about ‘they make evidence’.281 Therefore the practice and authority of legal experts favours the above. A very large number of strong, apposite reasons confirms it. As Freiburg concludes, if presumption or conjectural inference are added to naming by an associate, according to all scholars, the person named can be tortured; and if an accusation is made by a second associate, that is a new sign or evidence which gives rise to a new inference or presumption, and therefore, under those circumstances, it will be possible for the accused to be tortured. If you reply it is indeed new, but not different from the first one and does not have a different ability to prove [the charge], there is proof that it does have a different [ability] and gives rise to supporting evidence other than the one produced by the first naming. The reason is that the first [naming] was insufficient. The addition of a second one, however, is sufficient, because a proof put together from two imperfect specific cases which belong to the same genre, form, and substance—that is, from two individuals who both belong to the lowest social class—is absolutely sufficient for this purpose, (as [Giacomo] Menochio tells us in Presumptions Book 1, question 39, number 3 and ff., via Codex Book 3, ‘those who by the number of safeguards’, [= 5.69.0])—and this is proved by analogy between things, some physical, some legal, which have something in common. Let me give you physical analogies: one or more drops from one or more candles fall down on a stone and hollow it out; likewise, when several degrees of cold or heat, (for example, eight), are brought to bear upon it, they make it hot or cold; or two children carrying a club have an effect on it by hitting it several times. None these involves only a single thing or person. When it comes to legalities, however, more than one proof is helpful, because a single one is of no use in those pieces of evidence which are directed towards proving a single action. (See Bartolo [da Sassoferrato] and others who have followed him, in op.cit., paragraph ‘the same to Cornelius’, [= Digest 48.18.1.4].) Several individual witnesses deponing about people of a lower social class are sufficient to warrant torture, as I shall say later in question 8. Several pieces of evidence, even when they are unrelated [to the case], are sufficient to warrant it as well, (Bartolo and jointly on the end of Digest ‘investigations’ [= 48.18],

281

Ippolito Bonacossa (1514–1591) published The Common Opinions of Doctors of Civil and Ecclesiastical Law in relation to Criminal Cases (‘Communes Doctorum Juris Utriusque Criminales Opiniones’) in 1576. Lanfranco de Oriano’s Judicial Practice (‘Practica Judiciaria’) was published in Lyon in 1538.

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verb. quod fama publica n. 6, et ibi in addit. Augustin. n. 52, Aegyon. Boss. d. Tit. De indic., n. 7, Blancus deinde n. 150 et sequitur docens communem Farinac. d. q. 37, n. 11 et 43. Item, si cum dicto socii contra nominatum adforet aliquod indicium seu adminiculum, veluti unus testis de auditu, unus de visu non integer, inimicitia nominati, fama fuga, extemporanea conversatio, secreta collocutio, aut similia; nominatio illa sufficeret ad nominari torturam, quamvis haec sit remota satis a facto: docet ex plurimis. Propter Fari. q. 47, a n. 163 usque ad 177, cur non igitur multo magis si ad nominationem ab uno reo factam, accedat nominatio eiusdem facta ab alio vel ab aliis, cum isti non adferant adminiculum remotum, sed de ipso facto, et super ipso facto? Nonne cum Iudex teneatur singulos interrogare, singulis tenetur aliquid credere? Si singulis aliquid, cur non plus pluribus quam uni? Cur credat aliquid primo magis quam secundo vel tertio? Si dicas non operari secundum, quia est in eodem genere prebationis cum primo, nempe in genere denunciationis. Cassa haec evasio est, et falsa; si vera foret nec testis omni exceptione maior, posset efficere certitudinem ad condemnandum, cum sit in eodem probationis genere, nempe testimonii. Hinc formatur alia ratio valida. Unus testis etiam omni exceptione maior, ad condemnationem invalidus est, nec sufficit, quia solummodo praebet probationem inidoneam ad condenandum; si tamen alius illi similis testis adiungatur, ambo simul progignent probationem plenam ad condemnationem, et sic duo isti testes de visu deponentes plene crimen probabunt ad effectum ut reus ad poenam ordinariam possit condemnari. Cur ergo similiter duorum complicum unum tertium nominantium denunciationes, non facient indicium sufficiens ad torquendum: cur inquam quod non possunt seiunctim, non poterunt copulative? Sane sicut isti singuli sunt inhabiles in ordine ad torturam, sic illi singuli sunt inhabiles in ordine ad condemnandum. Cur etiam hic numerus fidem non augeat, cum generalis iudiciorum sit regula testium fidem num. augeri et num. suppleri, quod in fide

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Angelo Aretino (= Gambiglioni) on ‘a word which public reputation’, number 6; and there, too, where he makes an addition to [Antonio] Agustin [y Albanell], number 52; Egidio Bossi, Evidence, number 7; and then [Marco Antonio] Bianchi, number 150, who follows him and says the same as [Prospero] Farinacci, question 17, numbers 11 and 43,) Likewise if, along with what an associate has said against a named person, there were to be some circumstantial or supporting evidence, such as a single ear-witness or eye-witness who was not honest, enmity between himself and the person he named, rumour, flight, sudden repentance, secret conversation, or things such as these, that naming would be sufficient to warrant the named person’s being tortured, even though it was more or less unrelated to the facts of the case. (Prospero Farinacci, relying on a good many sources, says this in question 47, from number 163 to 177.) Why, therefore, is it not more or less the same if another person, or other people, name someone who has been named by a single defendant, because these people are not giving unrelated evidence, but evidence which is, ipso facto, concerned with the actual case in hand? Since the judge is obliged to question people individually, isn’t he obliged to some degree to believe them individually? If to some degree individually, why not several more than one? Why does he believe the first one to some extent more than the second or third? If you say the second has no effect because he is taking part in providing the same evidence as the first, and is certainly taking part in the same kind of denunciation, this excuse is futile and untrue. If it were going to be true, the witness would be able, without any exception, to provide certainty so that [the accused] could be found guilty, since he is taking part in providing the same kind of evidence, and certainly the same kind of testimony. This makes another strong reason. A single witness, without any exception, is not enough to produce a guilty verdict, and is insufficient because he is simply furnishing evidence which is unfit for finding someone guilty. But if [the evidence of] another witness like him is added to his, both together will produce abundant evidence for finding him guilty and thus, by giving full depositions, these two eye-witnesses will prove the crime such that the accused can be sentenced to the usual punishment. Likewise, why then will the depositions of two accomplices who name a third individual not constitute evidence sufficient to have him tortured? Why, I ask, will they not be able to achieve together something they cannot achieve separately? Surely, then, this means that just as these individual [witnesses] are separately inadequate to warrant having someone tortured, so, as individuals, they are separately inadequate to warrant finding him guilty. Why, too, can this number not increase one’s confidence [in what they are saying], when the general rule of court-rooms is that confidence is increased by the number of witnesses and what one lacks in confidence is made up for by the number of

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deficit? Est tex. lib. 3 § argumenta D. de testib. cum gloss. in verbo numerus, unde id eliciunt Iacob. Butig. et Florian. et lib. ob carmen § fin. D. eod. Alex cons. 47, col. 1, et cons. 78, lib. 2, et cons. 143, col. 2, lib. 5, Decius cons. 163. col. pen. Curi. Iun. cons. 168, n. 17. Favet nostrae sententiae praeterea ipsa experientia maximi facienda in similibus, quae docet in hoc crimine plurium complicum denunciationes vix unquam vel hoc arcanissimo sclere docet etiam vix unquam vel nunquam fallere docet etiam vix unquam in hoc arcanissimo scelere veritatem alia via posse deprehendi, cum vix probatio sceleris per a|lios quam per inhabiles et complices facinoris possit haberi. Quare cum hic casus inciderit, vel necesse est inquisitionem iudiciariam et processum fieri irritum et inanem, vel permittendum iudici ut peluribus talibus credat. Et ea de causa Iudicum arbitrii est decernere, an criminis probatio per alios, quam per complices haberi possit, vel non possit, iuxta dd. Plotum in lib. si quando § 2, n. 8, cap. unde vi., Mascard. De probation. concl. 1403, n. 4, vol. 3, quos sequitur Baiard. ad Clarum q. 24, n. 115, et recte iudicem id arbitraturum, si non attendat ad id quod absolute est impossibile, sed ad id quod in tali crimine communiter solet accidere, plusquam probabile est ex sententia Alex. cons. 112 vol. 2, et cons. 152, n. 15, lib. 5, Zazii cons. 2, n. 60, vol. 2, Gramma decis. 34, n. 7; quam licet impugnet Riminald. Iun. con. 360, n. 88, vol. 4, tamen eam multarum praxis regionum merito amplectitur, ne contra bonum publicum occultissima delicta maneant impunita: sic Baiard. supra n. 114. Ultimo probatur, quia idipsum obtinet in crimine haeresis (a quo ad Magiam est bonum argumentum, quia striges semper involutae sunt contra fidem, et

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witnesses? (The text is Digest, ‘witnesses’, paragraph 2, ‘evidence’, [= 22.5.3.2]), along with the gloss on the word ‘number’, [= 22.5.1.2], whence Jacopo Bottrigari elicits this conclusion, as do Floriano [Sampieri]; Digest, ‘on account of a poem’ [= 22.5.21 preface]; Alessandro [Tartagni], advice 47, column 1 and Book 2, advice 78, and Book 5, advice 149, column 2; [Filippo] Decio, advice 163, penultimate column; and [Franceschino] Corte Junior, advice 168, number 17.282 Moreover, the experience of a very great [crime], which tells us that, as far as this crime is concerned, denunciations by accomplices are scarcely ever, or never, a lie, favours my opinion that this should be done in similar [crimes], and also tells us that scarcely ever in this most secret of crimes can the truth be discovered in any other way, since it is hardly possible to achieve proof of the crime other than via unsuitable individuals and partners in crime. Consequently, since this is the situation, either the judicial investigation and trial must turn out to be ineffectual and useless, or the judge must be allowed to believe several such individuals. So for this reason it is left to judges’ discretion to decide whether proof of a crime can or cannot be obtained via people other than accomplices—see the learned observations of Plotus on Codex, ‘if when’, [= 4.20.19 preface], paragraph 2, number 8, ‘whence by force’; [Giuseppe] Mascardi, Proofs Volume 3, conclusion 1403, number 4., and he is followed by [Giambattista] Baiardi on [Giulio] Claro, question 24, number 115—and it is more than likely that a judge will decide this correctly if he does not give his attention to what is completely impossible, but to what usually and generally happens in the case of such a crime. (This follows the opinion of Alessandro [Tartagni], Volume 2, advice 112 and Book 5, advice 152, number 15; [Ulrich] Zasius Volume 2, advice 2, number 60; [Tommaso] Grammatico, decision 34, number 7.) But even though the younger Riminaldi attacked this notion, (Volume 4, advice 360, number 88), it is quite rightly adopted in practice by many regions so that very secret offences against the common good may not remain unpunished. (Thus Baiardi, supra, number 114.)283 Finally, it is proved because it holds good in the crime of heresy, and from this crime there is good evidence with respect to magic, because witches [striges] are always involved in it in opposition to the Faith and, as far as these crimes

282

283

Jacopo Bottrigari (c.1274–1348) was Professor of Law in the University of Bologna. Floriano Sampieri, (c.1360–1441), also came from Bologna and wrote commentaries on several Books of Justinian’s Digest. Franceschino Corte Junior, (died 1533), taught law in Pavia and was later an appellate judge in Mantua. Ulrich Zasius (1461–1535/6) was Professor of Jurisprudence in the University of Freiburg. Gian Maria Riminaldi (1434–1497) was Professor of Civil Law in the University of Ferrara and published more than one Advice (‘Consilia’).

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Sixtus v, quadam bulla dicitur haec crimina quoad inquisitionem exaequasse) invenio inquam de haeresi idem tradidisse Poenam ad 3. p. Directorii Inquis. Apendice ad q. 61. Sit: Ultima conclusio: Moderanda haec opinio nostra, eam procedere si ex veri similibus coniecturis et num. testium, vel ex qualitate deponentium, vel ex personis eorum contra quos deponunt, praesumantur nominantes falsum non dicere. Haec limitatio est Collegii Patavini illam desumentium ex d. cap. in fidei, et cap. accusatus § licet de haeret. in 6. et fran. Aretino in cap. cum P. Manconella, est de accus. col. 5, n. 21 et 22, Marsil. cons. 24, n. 13, Roland. cons. 73, n. 25, lib. 1, Sprenger. in Mall. q. 4, et aliis. Et ad haec capita reduci possunt conditiones aliae requisitae a Binsfeld. lib. 3 d. concl. 6. Friburgensium limitationes sunt, si in denunciatione constanter perseverent: secundo, si poenitentes ad indicium accedant; tertio, si cum contritione moriantur; quarto, si nulla mendacii, aut odii, aut inimicitiarum sit suspicio. Ex his 1 et 4 certe, 2 et 3 non aeque, et postea de his plura dicentur. quaestio ii An inimicitia denunciantium contra denunciatos debeant plene probari per duos testes, vel sufficiat semiplena probatio per unum testem aut etiam praesumptio ad elidendum indicium denunciationis. Ad hanc quaestionem variatum responsis. Omnes concedunt odium et inimicitiam valere ad elidendam denunciationis fidem cap. repellantur. cap. meminimus. De accusat. lib. 3, in prin. D. De testib., lib. liberi cap, de inoff. test., etiam in exceptis criminibus, cap. per tuas. de Simon. cap. cum P. ubi Abbas. de accusat. Bart. in lib. in quaestionib. D. ad leg. Iul. Maiesta.

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are concerned, Sixtus v is said to have equated them in a Bull. I also find that [Francisco] Peña says the same about heresy in the appendix to his Inquisitors’ Handbook at question 61. Let my final conclusion be that this opinion of mine should be guided [by the rule] that it meets the case if, because of plausible conjectures of the truth and the number of witnesses, or the character of those bringing the charge, or the social position of those against whom they are bringing the charge, one presumes that those naming names are not telling a lie. This limitation is that of the School of Padua. They choose it from op.cit., chapter ‘in fidei’ and ‘the accused’, paragraph ‘although with regard to a heretic’ in 6; and Francesco Accolti (Aretino) in the chapter ‘when Father Manconella’, in ‘concerning accusations’, column 5, numbers 21 and 22; [Ippolito] Marsili, advice 24, number 13; Rolando [della Valle], advice 73, number 25; [Jakob] Sprenger, The Hammer of Women who work Harmful Magic Book 1, question 4; and others.284 Other conditions required by Binsfeld, doubt 3, conclusion 6, can be brought under these headings, too. The limitations proposed by the Faculties of Freiburg are: (1) if they steadily persevere during their being charged; (2) if they come to trial in a penitent frame of mind; (3) if they die contritely; (4) if there is no suspicion of lying, or hatred, or enmity. Of these, one can agree with 1 and 4, but not to the same extent with 2 and 3. I shall say more about these later. Question 2 Should enmity between those informing against someone and those who have been informed against be fully proved by two witnesses, or is part-proof by one witness, or even a presumption, sufficient to quash the evidence contained in what is being informed? Answers to this question vary. Everyone agrees that hatred and enmity are enough to destroy trust in the accusation. Chapter ‘let them be repelled’, and chapter ‘we have mentioned’; 3 at the beginning of Digest, ‘Witnesses’ [= 22.5]; ‘children’, Codex, ‘disobliging testimony’ [= 3.28.28 preface], even in crimes which fall outwith the normal legal rules; chapter ‘per tuas’ on simony; chapter ‘with P’, where [Nicolò de’] Tudeschi [discusses] accusations; Bartolo [da Sassoferrato] on Digest, ‘investigations’, [= 48.18] on the Lex Julia on treason [= 48.4]. 284

Francesco Accolti (c.1416–1488) wrote commentaries on the first, second, and fifth decretals of Gregory ix. The reference here is to his commentary on the fifth decretal, (5.1.10), which was published in 1486.

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Concedunt etiam, sicut actor suam intentionem, debet plene probare, sic etiam reo exceptionem suam, in qua fungitur vice actoris plene probandam: lib. 1 D. De excepi. et ibi Castrens. lib. In exceptionibus D. de probat. et ibi glos. lib. Quoties et lib. cu de indebito. § sin. autem pro parte ib. lib. matrem, cap. De probatio, Areti. in Rub. inst. | de exception., n. 24, Fulvius Pacianus De probat. vol. 1, arg. 66. et seq., Decius in cap. in praesentia n. 50 De probat. et cons. 534, n. 9, Cravett. cons. 201, n. 29. et ex communi dd. id probans Ios. Naschandus vol. 2, De probat. cond. 685, numer. 1 et 2. Omnes etiam fatentur probationum varias esse species, quarum una sit efficacior alia: 1. evidentia facti; 2. confessio; 3. instrumetum; 4. testes; 5. iusiurandum; 6. praesumptio; 7. quaestio.; 8. fama: Sic post Arist. et Ciceronem, Menoch. De praesumpt. lib. 1, q. 1, cum seqq., Maschard. lib. 1, De probat. q. 4. Sicut Dialeltici duplicem agnoscunt probationem, unam apodicticam, qua res per suam causam necessariam, vel causa per suum necessarium effectum cognoscitur, quae est probatio demonstrativa; et aliam Topiccam, seu Dialecticam, qua ex probabilibus seu verisimilibus aliquid confirmatur; illius apodicticae unus est gradus certitudinis; huius vero topicae plures sunt, secundum probabilitatem maiorem minoremve probationem. Ita quoque in praedictis probationibus iuridicis, et inter ipsas, et ferme in singulis varii sunt gradus firmitudinis et verisimilitudinis. Nam unus testis alio certior, unum instrumentum alio perfectius, una praesumptio est alia credibilior de firmior: Menoch. lib. 1, q. 29 et 30 De praesumpt. et q. 44, n. 8, et 9; una est urgentissima, qualis est quae vocatur iuris et de iure, quae resp. illi apodicticae, ut patet allatis

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They also agree that, just as the plaintiff must prove his case fully, so too it is incumbent on the accused to prove his defence, in which he is fulfilling the role of advocate. Digest, ‘exceptions’ [= 44.1] and [Paolo di] Castro on the same passage, at ‘in exceptions’; Digest, ‘proofs’ [= 22.3] and the glossator on the passage ‘however many times’ [= 22.3.1], and also ‘when. Concerning what is not due’, paragraph, ‘but if on the part’; ‘mother’ in Codex, ‘proofs’ [= 4.19.17]; [Francesco Accolti] Aretino on the heading, ‘crimes which fall outwith the normal legal rules’, number 24; Fulvio Pacciani, Proofs Volume 1, argument 66 ff.; [Filippo] Decio in Proofs, chapter ‘at present’, number 50 and Legal Advice, 534, number 9; [Aimone] Cravetta, advice 201, number 29; and, relying on the common opinion of scholars, Giueseppe Mascardi proves this in Proofs Volume 2, conclusion 685, numbers 1 and 2.285 Everyone also acknowledges that there are various kinds of proofs, of which one is more effective than another: (1) evidence of what has been done, (2) a confession, (3) a document, (4) witnesses, (5) an oath, (6) presumption, (7) investigation, (8) rumour. (Thus, relying on Aristotle and Cicero, [Giacomo] Menochio, Presumptions Book 1, question 1ff., and [Giuseppe] Mascardi, Proofs Book 1, question 4). Logicians recognise there are two kinds of proof, one ‘indicative’, whereby it is learned via its irrefutable cause, or the cause is learned via its inevitable effect—this is ‘demonstrative’ proof—and the other one is ‘dialectical’, or ‘based on probability’, whereby something is established by means of probabilities or likelihoods. There is a single degree of certainty in the former ‘indicative’ proof, but several in the latter ‘probable’ proof, according to whether the [degree of] probability is greater or that of the proof is less. Therefore, there are also various degrees of reliability and likelihood in and among the foresaid lawful proofs, and almost in each one individually. This is because one witness is more reliable than another, one document more complete than another, and one presumption more credible and more firmly based than another. (Menochio, Presumptions Book 1, questions 29 and 30 and question 44, numbers 8 and 9.) One is particularly cogent, the one called ‘legal’ and [‘according to law’, and corresponds to the demonstrative type, as is clear from the examples provided

285

Fulvio Pacciani (died 1613) was a jurist in Modena. He published a treatise, Upon Whom does the Burden of Proof Fall? In 1593. This was also published under the title Proofs (‘De Probationibus’). Filippo Decio’s book on proofs was published in 1490, and his Advice in Venice in 1508, with a much-expanded edition in four volumes in Venice, vols. 1–2 in 1526 and vols. 3–4 in 1531. The ‘Naschandus’ of the text is clearly a misprint for ‘Marcardus’ = Mascardi.

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exemplis de Menoch. d. lib. 1, q. 3, alia non convincit, sed valde verisimilis est, ut praesumptio iuris, alia levis, qualis est praesumptio hominis. Item constat non omnia haec probationis genera omnibus causis convenire, quia quaedam testibus vel instrumentis directe probari non possunt, sed solis praesumptionibus fere, ut sunt mentale adulterium, simonia, haeresis, dolus et similia, quae habes apud Menoc. d. lib. 1, q. 58, quibus annumerandum est odium et inimicitia, quia latent in animo; ideo coniecturis investiganda et probanda ex aliqua facti alicuius circumstantia, unde inimicitia potuit oriri, desumptis arg. lib. dolum., cap. De dolo, cap. 2 de renunciat. in 6, Bald. cons. 41, praemittendum est n. 4, lib. 5, Abb. in cap. repellantur, n. 2, de accus. Maschard. lib. 2, de probat. concl. 898, n. 4 et 5. Denique inimicitiae probationem fieri debere iux. reg. tex in cap. in omni negotio; de testibus et in lib. ubi numerus D. eod. tradunt Bald. et Mascard.: ille in lib. Errore, cap. de testam., iste ubi supra. concl. 901, n. 2, et inimicitiam capitalem difficilius probari, quam non capitalem constat. Item a iudicis arbitrio pendere utrum sit inimicitia nec ne, item quae sit capitalis, quae non, quae gravis, quae levis; est communis sententia plurimorum, quos citant et sequuntur Nellus Tract. de test., n. 4, Clarus § fin. q. 24 et ibi Baiardus, Menoch. lib. 2 De Arbitrar. casu 110, n. 3, Farinac., q. 49, n. 86, et q. 53, n. 57; quod iudicium moderari potest ex traditis per Vivium et Mascar., quos retulit Batard. d. loco, et alios apud Moncadam in addit. ad Crottum de testib. in caus. criminal. n. 169. Hinc infero conclusionem sequentem.

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by Menochio, op.cit. Book 1, question 3. Another is not incontestable, but is very likely to be true, (a legal presumption, for example), and another is flimsy, (such as a presumption by an individual.) Likewise, it is agreed that not all these kinds of proof suit every case, because certain things cannot be proved directly by witnesses or documents, but entirely by presumptions alone, examples being adultery which one merely thinks about, simony, heresy, mischief, and suchlike. (See Menochio, op.cit. Book 5, 58.) To these should be added hatred and enmity because they lie hidden in the mind. Consequently, they have to be investigated by carefully chosen conjectures and tested by any circumstance of anything which was done, [to explain] whence the enmity could have arisen. (The argument ‘mischief’, Codex, ‘wicked mischief’ [= 2.20], chapter 2, ‘revocation’ in Baldo [degli Ubaldi] Book 6, advice 41, should be regarded as more important than Book 5, number 4; [Nicolò de’ Tudeschi] (Abbas) on the chapter, ‘let them be repelled’, number 2, ‘accusations’; [Giuseppe] Mascardi, Proofs Book 2, conclusion of 898, numbers 4 and 5.) Lastly, Baldo and Mascardi record that proof of enmity must be carried out in accordance with the example [given] in the text in the chapter ‘in every difficulty concerning witnesses’, and in Digest, ‘number’ [= 22.5.12], the former in ‘by mistake’ on Codex, ‘evidence’ [= 6.23.7], the latter in op.cit. supra, conclusion 901, number 2, ‘accusations’; and it is agreed that a mortal enmity which is not [in fact] mortal is rather difficult to prove. Likewise, it is the common opinion of very many people that it is up to the judge to decide whether there is enmity or not, and likewise whether it is mortal, whether there is no enmity, whether it is serious, and whether it is not. This is the common opinion of a good many [authorities] who are cited and followed by Nello [da San Gimignano], Treatise on Witnesses, number 4; [Giulio] Claro, end of question 24, citing Baiardi, too; [Giacomo] Menochio, Cases etc. Book 2, case 110, number 3; [Prospero] Farinacci, question 49, number 86 and question 53, number 57. (This judgement can be moderated by what [Francisco] Vivio and Mascardi have recorded.) Baiardi, loc. cit. repeats them and others he takes from [Pedro de] Moncada in his addition to [Giovanni] Crotto’s Witnesses in Criminal Trials, number 169.286 Hence I deduce the following conclusion.

286

Nello da San Gimignano (1373–1430) was a jurist in Firenze and, together with Alberico Maletta (c.1410–1466) was the author of a treatise on witnesses (‘Tractatus de Testibus’). Francisco Vivio (1532–1616) published a book on the legal decisions taken in the Kingdom of Naples, (‘Decisiones Regni Neapolitani’), in Venice in 1592. Pedro de Moncada was one of the contributors, along with Giovanni Crotto, to a collection of essays, Tractatus de Testibus Probandis, published in 1569.

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A iudicis arbitrio pendet an inimicitia in casu proposito sit satis probata, nec ne. Probatur l. 3. § ideo D. et § eiusdem de testib. §. Si vero talis aliquem: Auth. De instrum. fide., Menoch. lib. 1 De arbit., q. 9. Sciendum pro arbitrii huius directione, quod capitalis omnino testem repellat et nominatorem etiam in exceptis, neque expurgatur haec inhabilitas per torturam, quod repellat, probatur lib. 3 in prin. D. de testib. cap. cum oporteat., cap. meminimus cum simil. de accusat. auth. si dicatur C. de testibus et in corpore unde | sumitur; quod in exceptis quoque et tortura. lib. 1 § de aetherea D. de quaest. et ibi Marsil. Gigas in tit. quomodo et per quos q. 7, n. 6. Bertazzol. in crimin. cons. 38, n. 15 et cons. 528, n. 7, Menoch. De arbit. cas. 474, n. 55, Farinac. q. 53, n. 5 et 12. Levior inimicitia testimonium et nominationem tantum elevat et debilitat Bald. in Auth. si dicatur in fine cap. de testibus, Iacobin. a S. Georg. in lib. testium D. cod. et alii apud Farinac. d. q. 53, n. 54. Cum vero utraque gravis et levis lateant in animo, putarim utramque eodem probationis genere probari posse, sed causas graviores requiri ad probationem plenam inimicitiae capitalis, quam levioris, causas capitalis has memorant dd. 1. si quis alteri moverit quaestionem status; 2. quando intentata fuit vel illata mors ipsorummet, vel parentum, vel amicorum personis, inter nominatum et nominantem; 3. minae necis ab eo qui solet exequi; 4. accusatio criminis capitalis, ut adulterii, haeresis etc.; 5. controversia de maiore saltem parte bonorum. Denique quaevis atrox iniuria inter illos: Maschard. vol. 2 De prob. cond. 898, Binsfeld. d. conc. 6, dub. 2, prope fin. Ex quibus facile secernas causas gravis et levis inimiciae;

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It depends on the judge to decide whether enmity in the case under consideration is sufficient proof or not. (It is proved in 3, paragraph ‘therefore’, Digest, and paragraph ‘of the same’ in ‘witnesses’ [= Digest 22.5.3.2]; paragraph ‘But if such a person … anyone’, by the author of Trust in Documents; Menochio, Cases etc. Book 1, question 9.) For the guidance of this decision, one needs to know that mortal [enmity] disables a witness’s testimony altogether, and that of a person naming names, even in cases which fall outwith the normal legal rules, and that this disqualification is not annulled by torture. That [enmity] disables is proved by 3 and the start of Digest, ‘witnesses’ [= 22.5.3.1 and 22.5.1 preface]; the chapter ‘since it is necessary’ and the chapter ‘we have mentioned’, along with similar passages; author of Accusations, ‘if he is said’; Codex, ‘witnesses’ [= 4.20] and in the corpus from which it is taken. That torture can also be used in cases which fall outwith the normal legal rules, see 1 paragraph ‘moreover’, Digest, ‘investigations’ [= 48.18.1.24] and [Ippolito] Marsili on the same passage; [Girolamo] Giganti, under the heading ‘how and by whom’, question 7, number 6; [Bartolomeo] Bertazzoli, Criminal Cases, advice 38, number 15 and advice 528, number 7; [Giacomo] Menochio, Cases etc., case 474, number 55; [Prospero] Farinacci, question 53, numbers 5 and 12. Less serious enmity merely diminishes and weakens testimony and the naming of names. (Baldo [degli Ubaldi] on the author of ‘if he is said’, dealing with the end of Codex, ‘witnesses’; Giacomino da San Giorgio on the same passage on witnesses in the Digest; and others in Farinacci, op.cit., question 53, number 54.)287 But since both serious and less serious [enmity] lie hidden in the mind, I think that both can be proved by means of the same kind of investigation, but that more weighty causes are required for a complete proof of mortal enmity than are required for enmity which is less serious. Scholars note the following causes of mortal enmity: (1) if one person has questioned the social standing of a second person; (2) when the person named and the person doing the naming has contemplated or inflicted death on the person of the other, or of his parents, or of his friends; (3) threats of murder by someone who is in the habit of carrying them out; (4) an accusation of a capital crime such as adultery, heresy, etc.; (5) a dispute over property—quite large [property], at any rate; and (6) any exchange of a dreadful insult. ([Giuseppe] Mascardi, Proofs Volume 2, condition 898; [Peter] Binsfeld, op.cit., doubt 2, conclusion 6 near the end. From these you may easily distinguish the causes of both serious and

287

Giacomino da San Giorgio (died 1494) was Professor of Civil Law in Turin. He wrote principally on feudal law.

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quamquid interdum ex levioribus causis oriri gravissima et capitalia odia constet; iudex tamen ut plurimum ad causas attendere debet, quia sufficit probare causas gravis odii, quamvis hanc inimicitiae magnitudinem extrinsecis signis non ostenderit: Innoc. in. cap. cum. lib. et A. de re iudica. in fin. per tex. in cap. 2, cum seq. 3, q. 5, Bald. in lib. Praescriptione, n. 36, cap. se contra ius. Rom. in rub. de arbitr. col. ii, Gramm. decis. 33, n. 7, Marsil. d. lib. 1 § praeterea, n. 3, Farinac. d. q. 53, n. 21. Contra ubi inimicitiae magnitudo factis probata ut conatu vel illatione necis, aut gravis valde damni, aut atrocis iniuriae; non putarim iudici valde laborandum de causae invetigatione. Ut enim vulgo dicitur, Obras son amores, h. factis amor cognoscitur; sic a contrario etiam factis clare animus hostilis manifestatur. Verum si quod horum indiciorum signorum, factorum, vel causarum unde praesumptio elicitur, vel quae testes attulerant, a nominante fuerit negatum; hoc non potest per praesumptionem, nec per unum testem plene probari, sed opus est duorum testimonio ad hoc iudici persuadendum, ut docet Menoch. De praesumpt., lib. 1, q. 51, et cavetur in Carolina sanctione crimin. Ordinatione 23 et 30. Neque quoad haec quae diximus distinguendum inter inimicitiam et odium, quia ut quis repellatur sufficit probare quod sit valde odiosus nominans nominato, etiamsi non sit inimicus secundum multos. Ita Praepositus in cap. quod vero col. fin. 3, q. 5, Gigas supra, q. 2, n. 30, et plures apud Farinac. q. 49, n. 30. Fateor tamen me reale discrimen inter magnum odium et capitalem inimicitiam non satis capere. Igitur ut his positis quaestio satisfiat, certum est, et in eo supponitur duorum testimonio has inimicitias plene probari. De unius testimonio, crediderim illud non sufficere, cuiusvis dignitatis sit, ut plene probet, et repellat nominantem, lib. Iusiurandi cap. de testibus; posset tamen facere semiplenam probationem, per notata in lib. Admonendi D. de iureiur. et in lib. Matribus D. de quaestion. et etiam ad infringendum seu elidendum indicium ex nominatione natum. Sic Patavini dd. Si tamen in testimonio additae et probatae sint causae, species

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unimportant enmity, although it is generally agreed that sometimes very serious, mortal hatreds arise from quite trivial causes. But a judge should pay as much attention as he can to causes, because it is enough to prove the causes of serious hatred, even though there are no outward signs showing how great this enmity is. (Innocent iii on common law (?); Angelo [Gambiglioni], Judging a Case at the end, the text of chapter 2 along with the following chapter 3, question 5; Baldo on objection, number 36 C, ‘that he against the law of Rome’ in the heading ‘decisions’, column 11; [Tommaso] Grammatico, decision 33, number 7; Marsili, op.cit., 1, paragraph ‘moreover’, number 3; Farinacci, op.cit., question 53, number 21.) On the other hand, when the extent of the enmity has been proved by actions such as an attempt at, or commission of, murder, or [the infliction] of very serious damage, or dreadful injury, I should not think a judge need take much trouble over investigating the cause since, according to the popular saying, ‘actions speak louder than words’, that is, ‘love is recognised by its deeds’, and so, (to put it the opposite way), a hostile mind is clearly revealed by what it does. But if the person naming names has denied the pieces of evidence, the signs, the actions, or the reasons from which a presumption [of enmity] is elicited, the enmity cannot be fully proved by presuming it is there, or by [the evidence] of a single witness. The testimony of two witnesses is needed to persuade the judge of it, as Menochio says in Presumptions Book 1, question 51, and as is provided by the Caroline ordinance on criminal cases, regulations 23 and 50. Nor, in connection with what I have been saying, need one distinguish between enmity and hatred, because in order for someone’s evidence to be rejected, it is enough to prove that the person naming names is an object of great hatred to the person he has named, even if many people say he is not his enemy. (Thus ‘the man in charge’ in the chapter ‘but because’, question 5, end of column 3; [Girolamo] Giganti, op.cit., supra, question 2, number 30; and several referred to by Farinacci, question 40, number 30.) I maintain, however, that I make no particular distinction between great hatred and mortal enmity. Therefore—to give a satisfactory answer to the question with what I have been suggesting—it is certain, and is hypothecated therein, that these enmities are fully proved by the testimony of two people. In my opinion, the testimony of one person, regardless of his social standing, is not sufficient to prove it fully and reject [the evidence of] the person naming names. (‘Of swearing an oath’, Codex on the subject of witnesses [= 4.1.2].) But he could provide a half-proof by means of the points noted in ‘[we should] be reminded’, Digest, ‘swearing an oath’ [= 12.2.31], and ‘to mothers’, Digest, ‘investigations’, and even diminish or destroy the evidence which had arisen from the naming. This is what the scholars from Padua say, but [only] if the reasons for, and the kinds and

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et qualitates inimicitiae: Ias. in lib. 1, cap. de test., n. 9, et in lib. Titiae textores col. 3. D. de leg. 1, Bald. in lib. Solum, cap. de testib. et in lib. si quis testib. ib. in fin., Imola in cap., Raynutius | De testam., Grammat. decis. 34, n. 11, Farinac. q. 49, n. 126, et seq. Equidem sine adminiculis duo mihi sufficerent testes ad probandam capitalem inimicitiam; cum uno, requirerem adminiculum aliquod, et hanc esse communem sententiam affirmat Melchior Palaez Tract. maioratum p. 1, q. 43, n. 5. Facillime namque semper unus testis inveniretur, qui de inimicitia hac deponeret, et sic reus eum praeiudicio reip. semper liberaretur; quamvis enim Iudex, si velit, possit in criminibus exceptis leviores inimicitias contemnere, tamen capitalem cogitur magnifacere et propter illam tenetur testes omni exceptione alias maiores repellere: iuxta gloss. communiter receptam in cap. cum oporteat de accusat. quam siqq. Clar., Menoch., Farinac. et alii supr. citati. Quod attinet ad praesumptionem, distinguere oportet. Nam praesumptio quae dicitur iuris et de iure plenam et claram facit probationem: ut docet Menoch. lib. 1 De praesumpt., q. 36, n. 1. Praesumptio quoque iuris idem operatur, cum sit etiam ipsa vera, propria, et pefecta probatio (ut ostendit ex communi sententia idem Menoch. d. q. 6, an. 3); maxime quando ex natura rei aliae a praesumptionibus probationes haberi nequeunt, aut nulla legis praesumptio illi repugnat: Alciat. De praesumpt. 3 p., Menoch. supra d. lib. 1, q. 38, Maschard. lib. De probat. q. 10, a n. 34 usque ad 47, ex lib. Imperator ubi Alex. et Ias. D. de leg. 1. Praesumptio denique hominis, si sit vehemens et urgens constituet veram probationem et legitimam, maxime si aliquod adminiculum accedat: Berous in rubr. de probat. n. 42, Bald. in addit. ad specul. tit. De praesumpt. § species, Menoch. d. lib. 1, q. 36, n. 14. Ratio est quia praesumptio hominis plane subiici-

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natures of, the enmity have been added and proven in the testimony. (Giasone [del Maino] on Codex, ‘witnesses’, 1, number 9, and on ‘Titia’s weavers’, column 3 = Digest, ‘the laws’ [= Digest 30.36 preface]; Baldo on ‘only’, Codex, ‘witnesses’ [= 4.20.4’], and ‘if anyone uses witnesses’, ibid. at the end [= 4.20.17 preface]; [Giovanni de] Imola in the chapter ‘Raynutius’, dealing with his wills; [Tommaso] Grammatico, decision 34, number 11; Farinacci, question 49, number 126 ff.) For my part, two witnesses would be enough, without support, to prove mortal enmity, but when there is only one, I should require some support. Melchor Peláez maintains that this is common opinion, (Treatise on Extensions Part 1, question 43, number 5.)288 This is because it is always very easy to find one witness to give evidence about the enmity, and so the accused could always be acquitted, with prejudice to the state because, although in crimes which fall outwith the normal legal rules the judge can, if he wishes, disregard less serious enmities, he is obliged to make much of a mortal [enmity] and because of it to reject, without exception, witnesses who are otherwise rather important. (This is according to a generally accepted gloss on the chapter ‘since it is necessary with regard to accusations’, ff. [Giulio] Claro, [Giacomo] Menochio, [Prospero] Farinacci, and others cited above.) One must distinguish what is relevant to presumption, because a presumption which is called ‘of and by the law’ furnishes full, clear proof, as Menochio tells us in Presumptions Book 1, question 6, number 1. Presumption ‘of the law’ also does the same because it is itself an accurate, particular, and complete proof, (as Menochio, relying on common opinion, demonstrates, op.cit. supra, question 6, from number 3), especially when, because of the nature of the subject, other proofs cannot be had from presumptions, or when no legal presumption contradicts it. ([Andrea] Alciato on presumptions, part 3; Menochio, op.cit. supra, Book 1, question 38; [Giuseppe] Mascardi, Proofs, question 10, from number 34 to number 47, ‘when the Emperors Alexander and Jason’, Digest, ‘laws’, 1.) Finally, provided it is strong and pressing, presumption by an individual will constitute a genuine, legal proof, especially if it has some support. ([Agostino] Beró in the heading to ‘proofs’, number 42; Baldo in an addition to The Mirror of Justice, title ‘presumption’, paragraph ‘types’; Menochio, op.cit. Book 1, question 36, number 14.)289 The reason is that presumption by an individual is

288 289

Melchor Peláez de Mieres published his Treatise on Spain’s Extensions and Improvements (‘Tractatus Maioratuum et Meliorationum Hispaniae’) in Granada in 1575. Agostino Beró (1474–1554) taught law in the University of Bologna. The Mirror of Justice (‘Speculum Judiciale’) probably refers to a compilation by Guillaume Durand, first assembled in 1271 and revised twice thereafter.

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tur arbitrio iudicis: quare, si sit admodum vehemens, poterit iudicem movere, ut illi fidem tribuat: Berous d. n. 42, Menoch. d. lib. q. 44, n. 8 et 9. Haec de valde vehementi facile concesserim; de non vehementi, sine aliis adminiculis nequaquam. Semper enim adest praesumptio hominis contra complicem in nostro crimine, quia striges sunt hostes humani generis, et vicissim sunt cunctorum odium, et sic semper odii exceptio praesumptione huiusmodi probata indicium diligentiam, et iustitiae rigorem, et criminis denunciationem frustraretur; quod est magnopere iudici, ne fiat, attendendum. Cum inimicitia utpote repugnans naturali iuri, nisi bene probetur nunquam sit praesumenda: lib. In ratione § cum quidam D. ad leg., Falcid. lib. 1, cap. de man d. Princ., cap. cum in iure, de offic. de leg. Aymon cons. 8, n. 8, Mantua Benarid., cons. 24, n. 13, cons. 52, n. 17. quaestio iii An denunciantes debeant esse contriti, sicuti quidam volunt cum hoc iure non sit expressum, et sagae rarissime poeniteant? Satis obscure quaestio proponitur. Vel ergo quaerunt an eo tempore debeant esse contriti, quo denunciant, an saltem antequam moriantur? Prius illud, quocumque modo capias contritionem, dicendum non est, quia contra praxim est, ut ante sententiam latam se parent ad confessionem; contra prudentiam quoque. Nam confessioni tali (loquimur de sacramentali) non satis fidendum iudici, quia vix fit ut poeniteant nondum damnatae; et eam | exigere foret reos, satis ad perfidiam proclives, sacrilegii periculo exponere.

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clearly of less importance than a judge’s decision, but if it is entirely cogent, it will be able to persuade a judge to put some trust in it, (Beró, op.cit., number 42; Menochio, op.cit., question 44, numbers 8 and 9.) These points I am happy to agree with respect to [an individual’s assumption] which is very strong, but not at all with respect to one which is not strong, unless it has support from other sources. Presumption by an individual, which is hostile to an accomplice, is always present in the crime we are discussing because witches [striges] are the enemies of the human race and everyone in their turn hates them. So, an exception made for hatred proved by this kind of presumption can always frustrate the care taken by judges, the rigour of justice, and the denunciation of a crime, and it is very much a judge’s job to see that this does not happen because, since it is incompatible with natural law, enmity should never be presumed. (‘In reason’ [= Digest 35.2. preface], paragraph ‘when certain people’ [= 35.2.11.3], Digest on the Lex Fulcidia; Codex 1, ‘the instructions of princes’ [= 1.15]; chapters ‘when in the law’, ‘duties’, ‘the law’, Aimone [Cravetta], advice 8, number 8; [Marco] Mantova Benavides, advice 24, number 13 and advice 52, number 17.)290 Question 3 Should those who are laying information be contrite, as some people wish, since this is not clearly expressed by this law, and witches [sagae] are very rarely penitent? The question is not expressed very well. Are they asking whether [the informants] should be contrite at the time of laying the information, or at least before they die? It cannot be the former, however you understand the word ‘contrition’, because preparing themselves for confession before they are sentenced runs contrary to what happens in practice, as well as being contrary to good sense, and a judge should not put much faith in such a confession—I am talking about the sacrament of confession—because it rarely happens that women who have not yet been condemned are penitent and, because of the danger of sacrilege, it would force her [sic] to expose criminals who are already quite inclined to tell lies.

290

Marco Mantova Benavides (1489–1582) published a book of responses on civil and criminal cases in Venice 1543, and of consilia, also in Venice, in 1559.

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Post sententiam quoque haec contritio, ad id quod dicimus, mihi praecise non videtur necessaria. Quod probo vel enim loquuntur de contritione proprie sumpta, quatenus est pars una praevia poenitentiae; et nego de hac unquam iudici constare posse, vel sumunt pro attritione et de hac, quoniam interna est, idem asserendum. Si dicas potest iudici constare de hac aeque ac confessario, dico rationem esse disparem. Nam iudex in foro poli, tenetur credere reo pro se loquenti; iudex in foro fori credere non modo non tenetur, sed, ne facile credat, sibi plurimum cavere tenetur. Deinde si ille decipitur hac in re, damnum est solius decipientis; si iste, damnum est praeterea iustitiae et reip. Vel denique contritionem sumunt pro actuali confessione sacramentali. Sed (quicquid dicant alii Domini respondentes) certum est in praxi iudices ad illam attendere non solere, nam latroni contra socios creditur, etiamsi nolit confiteri, ut et haeretico impoenitenti; et infideli, de Sodomia complicis quae cuncta crimina cum strigum crimine solent concurrere. Verum licet sit hoc in praxi novum, volunt saltem in iure satis fundatum, et rationi valde consentaneum; de iure probant, ex cap. accusatus § licet de haer. in 6, ibi: “si ex manifestis indiciis apperuerit, non ex levitate animi, aut odii fomite, sed zelo Orthodoxae fidei, etc.” Verum respondeo illa aliunde apparere posse, nec confessionem illam satis manifestum signum ad hoc esse, cum ante sententiam soleat esse ficta, post eamdem possit esse simulata ad poenam mitiorem obtinendum. Deinde aliud est non videri motum, ex levitate animi, etc. in denunciando, aliud debere esse contritum. Non est igitur isto textu expressum, sed nec alio ullo; non quidem ex verbis, sed nec ex sententia et interpretatione congrua; nam licet quae ex sententia legis sunt, lege cauta censeantur lib. Nominis D. de verb. signifi. lib. neque leges. lib. scire, cum sim. D. de leg. Attamen non omnis legis extensio ex legis sententia est.

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Once sentence has been passed, too, I do not think, with regard to what I am saying, and to put it briefly, that this contrition is necessary. My proof of this is that (i) either they say what they are expected to say by way of contrition, in as far as this is one of the first requirements of penitence—and I say that a judge can never be sure [whether they mean what they say]—or (ii) they put on a show of [contrition] to avoid being chastised, (and the same can be said about this because they keep [their motive] to themselves.) If you say a judge can be as sure about this as a confessor, I say the two cases are different. A judge in the court of conscience is obliged to believe the accused who is speaking for himself; a judge in a court of law is not only not obliged to do so but is obliged to take every possible precaution not to believe him. Secondly, if the former is deceived in this matter, it is the deceiver alone who is harmed. If the latter [is deceived], justice and the state are harmed as well. Or (iii), they put on a show of contrition instead of making a genuine sacramental confession. But, whatever other gentlemen say in their replies, it is certain that, in practice, judges do not usually pay attention to [contrition] because they believe the thief rather than his associates, even if he is unwilling to confess, just as they believe an impenitent heretic and an unbeliever [when they talk] about their accomplice’s sodomy. All these crimes are usually found together in witches’ [strigum] crimes, too. But although it is unusual in practice, at least [those asking the question] want something which is satisfactorily based on law and entirely consistent with reason. They offer legal proof based on the chapter ‘the accused’, paragraph ‘it is permissible’ in [the law] on heresy, in 6: ‘if it appears from clear evidence, not from a lack of serious intention or from a spark of hatred, but from zeal for orthodox religion,’ etc.291 My answer, however, is that this can appear from another cause and that the confession is a clear enough sign for this purpose because, before sentencing, it is usually feigned and after sentencing, it can be pretended in order to obtain a lighter punishment. Secondly, [the questioners say] it is one thing not to seem motivated by a lack of serious intention, etc. and another to oblige someone to be contrite. This is why it has not been clearly expressed in this text. But it has not been clearly expressed anywhere else, either, certainly not in its wording, and not by meaning and relevant interpretation, either, because although things which are in accordance with the meaning of the law are considered to be legal provisions, (Digest, ‘the meaning of words’, paragraph ‘of a name’ [= 50.16.4] and Digest, ‘laws’, paragraphs ‘neither the laws’ [= 1.3.10], ‘to know’ [= 1.3.17], and similar passages), not every extension of the law is based on the meaning of the law. They prove this by explaining that

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This is a reference to a decretal of Pope Gregory ix.

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Probant ratione, primo, fidei humanae fundamentum est personae integritas, quae in non contritis abest; secundo, quia nulla fides adhibenda personae quae fidem Deo violavit; tertio, quia tales non contritae sunt mancipia Diaboli, qui mendax est; quarto, quia daemon id unice agit, ut carceratae nullum denuntient: igitur si quae persona aliam denuntiet, fortis est praesumptio, quod ex odio in genus humanum suggerat incarceratae ut innocentem denuntiet. His argumentis nihil moveor. Ad primum dico integritatem personae posse intelligi vel de sanctitate et perfecta iustitia, vel de fama illibata; priore modo nego illam in iudicialibus esse fundamentum fidei; adminiculatur, ut magis credatur a iudice, sed absolute non requiritur; posteriore modo in iudicialibus criminum non absolute requiritur, nam nec contritio reos tales facit, sed eatenus tantum, ut criminosis non credatur, si nihil adsit quo expurgetur infamiae vitium; hic vero expurgatum est per torturam quae facit illos credibiles; maxime si tempestive non revocent. Ad secundum, ratio laborat vitio plus probationis, quia sequeretur nulla in re illis credendum. Idem respondetur ad tertium, et praeterea etiam Diabolo mendaci exorcismis extorqueri veritatem; sic mancipiis eius tortura illam posse exsculpi; et valet similitudo, quia exorcismus est quasi quaestio qua daemon torquetur. Quarti consequentia nihil valet; nam non quicquid conatur diabolus impedire, Deus permittit ut | possit; nec etiam providentia Dei facile sinit innocentes deferri, et puniri. Quare nego illam praesumptionem esse fortem, vel bene fundatam. Igitur si poenitentiae signa, etiam citra confessionem in illis apparerent, bonum id foret, et optandum iudici; sed citra illam vix est ut poenitentiae signacent seri debeant; quare “simpliciter assero sufficere Iudici si aliunde quam ex contritione (quomodocumque acceptam) possit verisimilis apparere denunciatio, et ideo talis ei videatur.” Certe super poenitentiae signis exterioribus an essent sufficientia nec ne, semper advocati sine fine litigarent. Quare ista sententia nova mihi videtur satis noxia iudiciorum expeditione.

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(1) the basis of human trust lies in a person’s integrity, and that is not present in people who are not contrite; (2) no trust should be afforded someone who has violated the faith of God; (3) women such as these who are not contrite are slaves of the Devil who is a liar; (4) the Evil Spirit has the unique effect that, when the women are imprisoned, they do not lay information against anyone, and therefore if one woman does denounce another, it is a strong presumption that because of his hatred for the human race, he is prompting the imprisoned woman to denounce an innocent person. I am not in the least persuaded by these arguments. To the first point I say that a person’s integrity can be recognised either from his saintliness and perfect uprightness, or from his unimpaired reputation. In relation to the first point, I say that in law courts [saintliness] is not a fundamental point for trusting [what someone says]. It helps the judge to have greater trust in it, but it is not an absolute requirement. In relation to the second point, it is not an absolute requirement in criminal courts, because contrition does not give accused persons [an unblemished reputation]. It simply means that criminal types are not believed if there is nothing to wipe out the blemish of disreputability. Under these circumstances, however, it is wiped out by torture which makes these people believable, most especially if they do not retract [their statement] when they can. As far as the second point is concerned, reason has more trouble proving it than it does with the sin, because it would follow that one could not believe them in any circumstances. The same answer can be given to number 3 and, moreover, that exorcism forces the truth out of the lying Devil and that it can be extracted from his slaves by torture. It is likely that it will be, because exorcism is like the torture whereby an evil spirit is tormented. The conclusion of the fourth point is worthless, because the Devil cannot stop anything when God allows it to be possible, and God’s providence does not readily allow innocent people to be indicted and punished. Consequently, I say that the presumption is neither strong nor well-founded. Therefore, if signs of penitence appear in them, even without a confession, it would be a good sign and one which a judge would like to see. But they ought not to be considered signs of penitence without a confession, and so I unreservedly maintain that it is enough for a judge if a declaration [of penitence], even if it comes from something other than contrition, however welcome, [that would be], can appear to be likely to be true, and he can therefore think it is contrition, or something like it. Certainly, advocates would always be quarrelling endlessly about whether external signs of penitence are sufficient or not, and in consequence I think this novel opinion is rather harmful to the expeditious conduct of trials.

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Fateor D. Binsfeld., lib. 3, concl. 6, istam conditionem posuisse, et me ex illo lib. 5. Disq. sect. 3, sed nec ratione nec auctoritate hoc novum dictum ille confirmat; quare suspicor et verisimile est, id cum eo sensu posuisse, quo equidem posui; nempe quod confessione sacramentali ante mortem accedente aut tempore denunciationis accedentibus signis exterioribus iudici verisimilibus ex animo poenitere; multo firmior sit, et securior in praxi, sententia de recipienda complicium plurium sine aliis indiciis denunciatione; non vero eo sensu, quod si deessent talia signa vel confessio, ut non esse tutam sententiam credatur; quod in terminis nullum vidi adhuc asserentem, contra receptam quam dixi et notoriam praxim. Haec de nova quaestione nunc dicenda occurrebant. quaestio iv An ea quae de iure et constitutione Carolina Art. 31 requiruntur in denunciatione unius, requirantur etiam in denunciatione plurium? Patavini et Friburgenses responderunt non requiri, idem ego responderam. Sciendum moveri quaestionem propter art. 31 et art. 44, quorum tenor sequitur. artic. xxxi Rubrica. Communia indicia quorum quodlibet solum ad torturam sufficiens est. Si unus reus convictus, qui in suo delicto auxiliatores habuit, aliquem in carcere denunciat, qui ei ad perpetrandum delictum commissum opem tulerit, etiam est suspicio contra denunciatum, si modo in huiusmodi denunciatione sequentes circumstantiae et requisita observentur et reperiantur. Primo quod denuncianti persona denunciata in quaestione nominatim non fuerit proposita adeoque de eiusmodi persona in specie non fuerit interrogatus aut tortus denuncians, sed in genere interrogatus, quis eius in crimine fuerit auxiliator; denunciatum ex se cogitatione assecutus fuerit et nominaverit.

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I acknowledge that in Book 3, conclusion 6, Master Binsfeld made this stipulation and that I have relied on him in Book 5, section 3 of my Investigations into Magic, but he does not confirm this novel dictum with argument or [appeal to] authority, and so I suspect it is likely he posited it in the same sense I did— namely that a person is sincerely penitent when he is making a sacramental confession before his death, or when the judge thinks that the external signs [of penitence] he is making at the time he lays his information are likely to be genuine, and that the opinion about receiving information laid by several accomplices is much more secure and reliable in practice in the absence of other evidence: but not in the sense that if such signs or a confession were lacking, one can believe that the opinion is not safe, and I have not yet seen anyone defending this specifically, as opposed to the received and well-known practice I have spoken about. This is in agreement with the new question I have to talk about now. Question 4 Are the requirements of the law and article 31 of the Caroline Constitution in relation to one person’s laying information also required in the case of information’s being laid by more than one person? The answers from Padua and Freiburg say they are not, and my reply was the same. One needs to be aware that the question was prompted because of article 31 and article 44, and I now give a summary of what they say. Article 31 Heading: Common pieces of evidence, any one of which is, by itself, sufficient to warrant torture. If a single convicted accused who had people to help him in his offence lays information while he is in prison against someone who helped him commit the offence, it is also a cause of suspicion against the person who has been denounced if, in a denunciation of this kind, the following circumstances and required features are noted and found. (i) That the name of the person informed against has not been suggested during interrogation to the person laying the information and, in as much as the person laying the information has not been tortured or asked about such a person in particular but has been asked in general terms who assisted him in his crime, he should have had the wit himself to name the person he had denounced. (ii) It is appropriate

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Secundo convenit quod ille denuncians omnino specifice interrogetur, qualiter quomodo et quando eum denunciatus invenerit, et qualem societatem cum eo habuerit, et in hoc debet denuncians interrogari de omnibus possibilibus, et necessariis circunstantiis, quae pro occasione et qualitate cuiusque facti, omnium optime ad sequentem investigationem veritatis conducere possunt, quae hic omnes describi nequeunt, sed quilibet diligens et discretus per se considerate potest. Tertio convenit inquirere an denuncians in singulari, inimicitia, malevolentia, vel contrarietate cum denunciato consistat. Nam ubi talis inimicitia, malevolentia aut contrarietas notoria esset, vel inquirendo reperiretur; tunc denuncianti de eius|modi denunciatione contra denunciatum non esset credendum, nisi de hoc alias tam verisimiles, firmas causas, signa veritatis iudicet, quae quoque in investigatione reperiantur, quae firmum indicium faciant. Quarto ut persona denunciata adeo suspecta sit, quod denunciati criminis rea videri possit. Quinto denuncians in denunciatione constanter manere debeat. Rubrica. De Magia sufficientia indica. art. xliv Si quis se offerat alios Magiam docere, vel aliquem maleficare minetur, et illi cui minatus est eiusmodi quid contingat, vel etiam singularem consuetudinem cum Magis aut maleficis habeat, vel talibus suspectis rebus, gestibus, verbis, et substantiis utatur, quae Magiam secum important, et illa persona de hoc alias sit diffamata, hoc praebet firmum indicium Magiae, et sufficientem causam ad torturam. Hactenus sunt verba constitutionis criminalis sancitae a Carolo v. Imp. Hoc posito respondetur hanc constitutionem in d. art. 31 capiendam de denunciatione unius ut in terminis loquitur, non plurium. Nam locutio singularis legis non potest resolvi in pluralem, quando plurium et unius diversa est ratio iuxta doctrinam Praesidis Nechliniensis in loco a vi numeri, n. 1 et 8; diversam vero rationem esse in nostro casu plurium et unius ostensum in resp. ad primam quaestionem. Item primum requisitum d. art. 31 non habet locum in denunciatione a pluribus facta quod probatur. Non debet reus in genere

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that the person who is laying information be questioned in great detail about how, in what way, and when the person he has denounced met him, and what kind of a relationship he had with him, and for this purpose the person laying the information should be questioned about every possible requisite circumstance which can best conduce to the investigation of the truth which follows, as regards the reason for and the nature of each individual thing which was done. These cannot all be described here, but any attentive, discerning person can work them out for himself. (iii) It is appropriate to ask whether there is a particular enmity, ill-will, or antagonism between the person laying the information and the person against whom he is informing, because were such enmity, ill-will, or antagonism to exist or be discovered during the inquiry, one could not believe this kind of denunciation against the person denounced coming from the person denouncing him unless, as indicators of the truth in connection with this, he provided other powerful reasons which were likely to be true and which could also be discovered in the course of the investigation, and could strengthen his evidence. (iv) The person against whom the information is laid should be so suspect that he can be considered guilty of the crime he is alleged to have committed. (v) The person laying the information should be consistent in the information he is providing. Article 44 Heading: Competent evidence of magic. If someone offers to teach others magic; or threatens to do magical harm to someone and something of the kind happens to the person he has threatened; or he is also on notably familiar terms with magicians or workers of harmful magic; or he makes use of the kind of suspicious objects, gestures, words, and materials which accompany magic, and that individual has, at some time or another, been given a bad reputation on this account, this furnishes strong evidence of magic and a sufficient reason to have him tortured. (This is what the criminal code ratified by Emperor Charles v says.) In light of this citation, one’s answer is that, in article 31, this code should be understood to be speaking specifically about one person’s laying information, not several, because the law’s use of the singular cannot be stretched to a plural, since ‘several’ and ‘one’ mean different things according to the teaching of the praeses of Nalinnes in the passage ‘from the power of number’, numbers 1 and 8, and in the reply to the first question it has been shown that the meaning of ‘several’ and ‘one’ is different in the case we are discussing. Likewise, the first thing required by article 31 has no place in information laid by several people, because it is proven that an accused should not be questioned

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de complicibus interrogari, quando indicium aut praesumptio adest contra singularem personam; sed potest fieri de illa specialis interrogatio: gloss. et dd. lib. fin. De accusat., Brunus De indic. 1. p. q. 6, n. 4, Bossius, De inquisi. n. 61, Menoch. Praeses. de arbitr. Iud. lib. 2, cent. 5, cas. 474, n. 53, Binsfeld. membr. 2. concl. 1, vers. pro iudicib. annotandum. Quando autem plures denunciant, post primam denunciationem iam adest denunciatione primi indicium seu praesumptio; hoc enim prior ille operatur; et ideo inter indicia ad inquisitionem et interrogationem hanc sufficientia ponitur denunciatio unius complicis: idem Menoc. De praesumpt. lib. praes. 8 n. 2, et constat plus requiri ad inquisitionem specialem, quam ad interrogationem specialem, quia illa est maioris praeiudicii. Unde et illud infero, cum plus idcirco etiam requiretur ad capturam; si in ea licet, magis licebit ad specialem interrogationem, sed ad capturam sufficere, non desunt qui velint, ut Lancellotus Pract. crimin. tit. de inquisit. n. 34. Praeterea nec quarta conditio requiritur in denunciatione a pluribus facta, ut etiam doctum in resp. ad primam. Ergo Carolina non potest extendi ad denunciationem plurium. quaestio v An denunciationibus infamium sit credendum in criminibus exceptis contra personas bonae famae? Proponitur quaestio generaliter, et supponit absolute, sive sint plures denunciantes sive unus; atque in his terminis eam discutiemus, scilicet utrum vel pluribus talibus sit credendum? Sic res magnam patitur difficultatem.

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in general terms about accomplices when there is evidence or presumption against a single individual. There can, however, be a specific interrogation of this individual. (Commentators and scholars on the end of Codex, ‘accusations’ [= 9.2.17.1]; [Francesco] Bruni, Circumstantial Evidence Part 1, question 6, number 4; [Francesco] Bossi, Investigation, number 61; [Giacomo] Menochio, (praeses), Cases etc. Book 2, century 5, case 474, number 53; [Peter] Binsfeld, second part, conclusion 1. The passage should be copied down for judges.) But when several people are laying information, after the first of them there now exists evidence or a presumption because of the information laid by that first person, (since he gave his information before the others), and therefore information laid by a single accomplice is included among the evidence which is sufficient to warrant this investigation and questioning, (Menochio, Presumptions, Book 1, presumption 8, number 2.) It is also generally agreed that more is required in the case of an investigation into a specific individual than for the interrogation of a specific individual, because the former is more prejudicial. Consequently, that is what I deduce as well, and since for that reason more will be required to make an arrest, if it is permissible in that case, it will be more so when it comes to the interrogation of a specific individual. There is, however, no lack of people who think it is sufficient to warrant making an arrest, such as Lancellotto [Decio], Criminal Practice, heading ‘legal inquisition’, number 14.292 Furthermore, the fourth condition is not required in the case of information laid by more than one person, as has also been said in the reply to number one. Therefore, the Carolina cannot be extended to information laid by more than one person. Question 5 Should information laid by persons of ill repute against persons of good repute be believed in crimes which fall outwith the normal legal rules? The question is posed in general terms and makes the unqualified assumption that there is either more than one person laying information or that there is just one. So, I shall discuss it in the following express terms: should one believe more than one such person? This way the subject copes with a great difficulty.

292

This could be a reference to Lancellotto Deci (1444–1500) who published commentaries on Justinian’s Codex and Digest, or perhaps Giovanni Paolo Lancellotti (1522–1590) whose principal work was Institutiones Iuris Canonici. Neither, however, wrote a book with the title Practica, or Praxis, Criminalis. On the other hand, Del Río does not always quote titles in the form they are usually given.

586

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Plerique censuerunt contra constantem et non vulgarem denunciati famam bonam, nihil ad torturam valere plurium complicum nominationem; | idque ne sit in potestate et arbitrio istorum tam infamium gravare et denigrare bonum nomen, existimationem, et personam hominum proborum: citantur pro hac sententia, Ruph. Cuman. cons. 136, ad 1 col. 4, Alex. cons. 89, n. 13, lib. 3, Mars. cons. 74, n. 25, et in crimine nostro maleficii cons. 109, n. 27, Paris cons. 151, n. 13, lib. 4, Grammat. cons. 21, n. 8, cons. 35, n. 37, cons. 57, n. 11, cons. 58, n. 18. et cons. 66, n. 5, et melius Decis. 28, n. 17 et 18, ubi post And. de Isernia et alios ab eo allegatos sic plene affirmat. Item Socin. Iun. cons. 39, n. 66, lib. 2, Roland a valle cons. 16, n. 24, et cons. 13, n. 35, lib. 1, Menoch. De arbitr. cas. 474, n. 42, Bertazzol. cons. 59, n. 8, et cons. 61, n. 16, Vincent. Onded. cons. 100, n. 40, lib. 1, haec communiter recepta. Sententia valde probabilis est: quando bona fama tam constanter et plene probata est, ut dubitare iudex non possit aut debeat, communi eius loci hominum existimatione denunciatum propter mores anteactae vitae haberi pro viro probo, et ab hoc crimine alieno: arg. lib. De minore § plurimum D. de quaestion. Et hoc nisi alia adminicula concurrant pro denunciatione, quae iudex magni merito faciat; tunc enim indicium hoc denunciationis valde grave foret; et multi tenent bonam famam denunciati tollere indicia levia, et gravia solum elidere: sic. Paul. Merend. in criminal. varius cons. diversorum cons. 88, n. 78, Vulpellus cons. 105, n. 6, et cons. 125, n. 26. Ex horum ergo sententia istud indicium adhuc aliquid virium haberet contra generalem probationem famae bonae, saltem ad lenius torquendum, quia praesumptio nascens ex bona fama

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A good many people have been of the opinion that, faced by the unwavering, uncommon good reputation of the person against whom the information has been laid, his being named by several accomplices is by no manner of means enough to warrant his being tortured, and that it must not be in the power of such disreputable people to decide to burden and denigrate the good name, reputation, and person of people of probity. The following are cited for this opinion: [Raffaello?] da Como, advice 136 at 1, column 4; Alessandro [Tartagni], advice 89, number 13, line 3; [Ippolito] Marsili, advice 74, number 24 and, in regard to the crime of malefice we are discussing, advice 109, number 27; Paride [del Pozzo], Book 4, advice 151, number 13; [Tommaso] Grammatico, advice 21, number 8, advice 35, number 37, advice 57, number 11, advice 58, number 18, and advice 66, number 5; and better, decision 28, numbers 17 and 18 where, following Andrea da Isernia and others chosen by Andrea, he fully affirms this point. Likewise, [Bartolomeo] Socini, junior, Book 2, advice 39, number 66; Rolando a Valle, advice 16, number 24 and advice 13, number 35, line 1; Menochio, Cases etc. case 474, number 42; [Bartolomeo] Bertazzoli, advice 59, number 8 and advice 61, number 16; Vincenzo Ondedei, advice 100, number 40, line 1.293 This is the generally received opinion and is very credible when a good reputation is so firmly and fully proven that a judge cannot, or should not, doubt that, in the general estimation of the people of the locality, the person who has had information laid against him is considered, on account of the manner of his life hitherto, to be an upright man and someone who has nothing to do with this crime. (Evidence ‘concerning a lesser’ and paragraph ‘very much’, Digest, ‘investigations’ [= 48.18.15.1 and 48.18.10.5].) If other pieces of supporting evidence, which the judge can treat as important, do not concur to support the information laid against him, then the evidence of that information would carry great weight, and many people think that the good reputation of the person against whom information has been laid merely removes unimportant evidence and weakens important evidence. (Paolo Merenda, Advice in Criminal Cases, advice 88, number 78; [Ottaviano] Volpelli, advice 105, number 5 and advice 125, number 26.)294 According to these people’s opinion, therefore, this evidence would have some force against the general proof of a good reputation, enough, at any rate, to warrant light torture, because a presumption

293

294

Raffaello da Como (died 1427) also known as Raffaello Raimundi, taught law in the universities of Pavia and Padua. Andrea da Isernia (c.1230–1316) taught law in Naples and wrote mainly on feudal law and the Sicilian constitution. Vincenzo Ondedei (died 1603) published his Advice and Replies in 1592. Paolo Merenda (floruit mid sixteenth century) published his Advice and Replies in Naples in 1574.

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est generalis, nascens autem ex plurium denunciatione est specialis: hoc volunt Alex. cons. 77, n. 9, lib. 1, Arnonus Soliloq. 37, Bimsfeld. conc. 6, dub. 3, illat. 6, d. lib. 2. Alii censent tum demum elidi indicium hoc plurium per certam et constantem bonae famae exceptionem, quando ad bonam famam accedunt alia indicia ad exculpandum reum denunciatum, vel etiam reis denunciantibus plures defectus obiiciuntur qui eorum personas vel dicta debilitant, ut quod sint viles personae, aut alias aliis criminibus scelerosi; ratio eorum est quia semper duplicata materia exceptionis plus debeat valere ad augendum et detrahendum, ut duo vincula sanguinis, duae improprietates, duae fictiones, duo indicia, duo actus geminati; et hoc in terminis ad liberandum a tortura nominatos, annotarunt non pauci: Gigas De crimin. laes. Maiestat. tit. quomodo et per quos, q. 7, n. 7, Grammat. consil. 1, Roland. a valle, consil. 16, n. 20, et consil. 73, n. 24, lib. 1, Menoch. d. cas. 474, n. 74, Maschard. De probation. conclusio. 1317, n. 41, Vincent. Onded. d. consil. 100, n. 17 et sequ., Farinac. q. 43, n. 179. Ex his iam patet, simpliciter loquendo plurium infamium denominationem contra bonae famae personas admitti et posse valere ad torturam, v.g. si nihil illis obstet, nisi bona rei fama; sive si non sint alia adminicula contra denunciationem; hoc enim supponit praefata opinio dd. et tenuere dd. Ingolstadienses in scripto suo anni 1590, et Friburgenses in consil. anni 1601; post Bossium, Clarum, Binsfeld. et alios probatur ratione prima, quod non admittatur unius socii testimonium fit, quia bona fama praeponderat unius nominationi; sed si adminiculum accederet ad unius denunciationem, bona fama non praeponderaret: igitur etiam non praeponderabit, quando ad unum aliud quoque denominantis

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produced by someone’s good reputation is a general one, whereas that produced by information laid against someone is specific. (This is the opinion of Alessandro [Tartagni], Book 1, advice 77, number 6; [Giovanni d’] Arnono, Monologues, 37;295 Binsfeld Book 2, doubt 2, conclusion 6, inference 6).) Then again, other people think that this kind of evidence, given by more than one person, is weakened by an assured, steady plea of good reputation, when the good reputation is accompanied by other evidence to exculpate the accused against whom information has been laid, or even when several defects, which weaken their characters or what they have said, are alleged against accused people who lay evidence [against someone else], such as that they are worthless individuals or guilty in other ways of committing other crimes. [These other people’s] explanation is that when the substance of a plea is doubled, it should always be worth more when it comes to increasing and detracting from [a reputation], just as two bonds of blood do, two improprieties, two fictions, two pieces of evidence, and two repeated actions; and not a few people have noted this specifically in relation to freeing from torture the persons who have been named. ([Girolamo] Giganti, The Crime of Treason under the heading ‘how and by whom’, question 7, number 7; Grammatico, advice 1; Rolando a Valle, Book 1, advice 16, number 20 and advice 73, number 4; Menochio, op.cit., case 474, number 74; [Giuseppe] Mascardi, Proofs, conclusion 1317, number 41; Vincenzo Ondedei, advice 100, number 17ff., and [Prospero] Farinacci, question 43, number 179.) From these remarks it is now clear, (to speak unreservedly), that the naming of persons of good reputation by more than one disreputable person to their detriment is allowed, and can be sufficient warrant for them to be tortured— if, for example, there is nothing against them except the good reputation of the accused, or if there is no other supporting evidence against the information which has been laid—because the foresaid opinion of scholars suggests this, and the scholars from Ingolstadt believed this in their written submission of the year 1590, as did those from Freiburg in their advice of 1601. According to [Egidio] Bossi, [Giulio] Claro, [Peter] Binsfeld, and others this is proved (1) because the testimony of a single accomplice may not be admitted, since a good reputation outweighs being named by one person. But if a piece of supporting evidence is added to information laid by one person, a good reputation would not outweigh that, and therefore it will not outweigh it when the evidence of an associate who is laying evidence is added to one other thing, because when

295

Giovanni d’Arnono (floruit mid sixteenth century) published his A Hundred Monologues in 1535. Del Río’s reference occurs on p. 10 of that edition.

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socii indicium accedet; cum | denunciatio secunda praeponderet aliis indiciis: est ratio Farinacii. Secundo: Iura, in exceptis criminibus admittentia infames ad testificandum, non distinguunt inter infames et non infames denunciatos: ergo nec nos debemus distinguere. Confirmatur, quia si distingueretur, semper fere elidentur denunciationes, quia ut plurimum denunciantur personae non diffamatae, et in hoc crimine vix aliunde quam ex denunciationibus oritur initium diffamationis. Tum etiam quia haec est indoles istius delicti, quod rarissime possint ab aliis denunciari quam ab infamibus, quod quando accidit, infames admittendos: docent Soz. in reg. 415, Menoch. De arbit. q. 27, n. 7, Grammat. et alii, communem dicit Clarus § fin. q. 24, n. 13, et q. 25, in pr. Denique non obstant huic sententiae, Carolina art. 31, nec Mascardus aut alii, quia loquuntur de denunciatione ab uno complici facta. Igitur aliquando plurium sociorum testimonium non eliditur per bonam famam solam quantumvis certam, ut dictum aliquando vero eliditur, et mea quidem sententia a Iudicis arbitrio dependet iudicare: quando elidatur, quando non, quia a iudicis arbitrio pendet decidere in animo suo, quod nam certius in individuo sit in indicium bonae famae, an denunciationis plurium. Quando certius illi videtur indicium bonae famae, tunc tenetur abstinere a tortura: iuxt. Bart. in lib. 1 §1 D. de q. Angel. de malef. in vers. quod fama publ. n. 34, Marsi. in § diligenter n. 190, Alex. cons. 180, n. 9, lib. 2, Gramm. voto 3, n. 2, ubi etiam id adducit, Ioan. Andr. et Bald. sic etiam Farinac. q. 38, n. 110. Sin vero urgentiores et firmiores iudicet complicum depunciationes, procedat ad torturam, saltem leniorem. Dependet ergo res a pondere indiciorum, ut praevaleant graviora, ut olim docui d. lib. 5, sect. 3, v. conditiones autem, cum Prospero Farin. d. operis q. 47, et est ad mentem Carolinae.

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a second piece of evidence is laid against someone, it outweighs other pieces of evidence. (This is Farinacci’s explanation.) (2) Oaths which allow disreputable people to give evidence in crimes which fall outwith the normal legal rules do not distinguish between disreputable and reputable people against whom information has been laid. Therefore, we should not distinguish between them, either. This is confirmed because if a distinction were to be made, denunciations would almost always fail since, for the most part, the persons against whom the information is laid are not people with a bad reputation, and as far as this crime is concerned the start of a bad reputation arises for scarcely any reason other than that of being denounced. Another reason, too, is that it is an innate quality of this offence that very rarely can people be denounced by anyone who is not disreputable, and when that does happen, the disreputable individuals should be heard in court, as we are told by [Bartolomeo] Socini in Rules, 415; Menochio, Cases etc., question 27, number 7; and Grammatico and others. [Giulio] Claro gives us the common opinion in the final paragraph of his question 24, number 13 and at the beginning of question 25. Finally, article 31 of the Carolina does not stand in the way of this opinion, and neither do Mascardi or the others, because they are talking about evidence laid by a single accomplice. Therefore sometimes the testimony of several associates is not weakened by a single good reputation, however well-established [that reputation] is, just as sometimes what they say is weakened by the truth. Actually, my opinion depends on the judge’s making up his mind to decide when it is weakened, and when it is not, since the judge has to make up his own mind which [evidence] is more reliable in the individual case—the evidence of a good reputation, or the evidence of the information laid by more than one person. When he thinks it is the evidence of good reputation, he is obliged not to proceed to torture, (according to Bartolo [da Sassoferrato] on passage 1, paragraph 1 of Digest, ‘investigations’ [= 48.18. 1 preface and 1]; Angelo [Gambiglioni], Treatise on Wrong-Doers, at about ‘because a public reputation’, number 34; Marsili in the paragraph ‘carefully’, number 190; Alessandro [Tartagni], Book 2, advice 180, number 9; Grammatico in verdict 3, number 2 where he also adduces Giovanni d’Andrea and Baldo. This is also Farinacci’s opinion, question 38, number 110.) But if he decides that the information laid by accomplices is more pressing and more reliable, he can proceed at least to fairly light torture. So, the situation will depend on the weight of the evidence, in such a way that the more serious evidence can prevail, as I said earlier in Book 5, section 3, (but contrary to the conditions laid down by Prospero Farinacci, op.cit., question 47.) It is also what the Carolina intends.

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quaestio vi An saltem ad hoc duorum vel plurium infamium denunciationes sint necessariae? Si non adsint alia adminicula, ut minimum requiruntur denunciationes duorum virorum vel plurium mulierum. Nam unius non sufficere, maxime contra personam bonae famae, dictum satis; plurimi enim facienda vitae praecedentis merita lib. 3 § sed si ex improviso. et lib. non omnes § a Barbaris. D. de re milit. Dixi ut minimum quia saltem requiruntur duo vel tres (ut dixi) nec pauciores unquam sufficerint; non tamen semper isti duo vel tres suffecerint, si tanta sit vis bonae famae propter magnam personarum inaequalitatem (v.g. si Princeps denuncietur a suis subditis), ut duobus vel tribus ipsa adhuc bona fama praeponderet; tunc enim tot denunciationes requirerentur, quot possent praeponderare. Sic Pater Valentia. tom. 3, in D. Thom. disp. 6, q. 13, puncto. 4 § 3, verso secunda regula. et Petr. Binsfeld. d. concl. 6. Aliquando ergo sufficient duo, aliquando plures requiruntur, pro circumstantia personarum. quaestio vii An ultra denunciationem plurium, denunciati diffamatio requiratur in exceptis criminibus, ut possit procedi ad inquisitionem specialem, et toruram? 444

Non quaeritur an ad inquirendum vel torquendum sola fama sufficiat, quod si quaereretur, optime quidam consulti respondissent in exceptis criminibus solam famam sufficere ad citandum personaliter, et ad detrudendum in carcerem, et proinde multo magis ad specialem inquisitionem: in. lib. nullus. cap. de exhib. reis, Cravet. cons. 41, n. 6, cum aliis adductis a Maschar. concl. 754, n. 19;

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Question 6 Is information laid by at least two or more persons of ill repute needed for this purpose? If there is no other supporting evidence, the minimum requirement is information laid by two men or several women, because information laid by one person is not sufficient, especially against a person with a good reputation, and it is enough to say that very many people [possess] merits from earlier on in their life which need to be taken into account. (Digest, ‘military situation’, paragraph 3, ‘but if unexpectedly’ [= 49.16.3.12], and ‘not everyone’, paragraph ‘by barbarians’ [= 49.16.5.6].) I said, ‘the minimum’, because at least two or three are required, (as I said), and fewer will never be enough. However, these two or three will not always be enough if the force of a good reputation is so powerful because there is such a great difference in the social standing of the individuals concerned—for example, if a prince were to be denounced by his subjects—that the reputation, (presumably still a good one), outweighs the two or three [informers]. Under those circumstances as much information would have to be laid as could outweigh [the denounced person’s social standing]. (This is the opinion of Father [Gregorio de] Valencia in Volume 3 of his disputations on St Thomas [Aquinas] 6, question 13, point 4, paragraph 3, on the second rule, and Peter Binsfeld, op.cit., conclusion 6.) Sometimes, therefore, two are sufficient and sometimes more are required, according to the social standing of the persons concerned. Question 7 So that one can proceed to the examination and torture of a specific individual, is it a requirement in crimes which fall outwith the normal legal rules that, in addition to the information laid against him by more than one person, the individual against whom it is laid be someone of ill repute? The question is not whether reputation alone is sufficient to have someone examined or tortured, because if that were the question a number of people who were consulted would have replied, perfectly correctly, that in crimes which fall outwith the normal legal rules reputation alone is sufficient enough to have someone summoned to court in person and thrown into prison and accordingly even more so to [undergo] a specific examination. (See Codex, ‘the delivery and transfer of accused persons’, ‘no one’ [= 9.3.2 preface] and [Aimone] Cravetta, advice 41, number 6, along with others cited by Mascardi in

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ad torturam tamen quae requirit indicia facto propinqua, gravia, verisimilia, et clara: lib. 1 in pr. D. de quaest. 1 milites, cap. eod., Bald. et alii relati a Farinacio q. 37, n. 3; non sufficeret sola fama, ut ex communi sententia et praxi docet idem Farinacius, q. 47. n. 4, praeterquam in occultis crimniibus, ubi ad torturam sufficit: receptum id docet Clarus d. § fin., q. 21, vers. Fama sola, Riminal. Iun. cons. 362, n. 3; aut si aliud indicium famae adminicularetur, v.g. nominatio complicis confessi proprium crimen: ex Gandino et aliis Farinac. d. q. 47, n. 17. Sed quaeritur de necessitate istius diffamationis, primo quoad inquisitionem specialem, deinde quo ad torturam. Regula est iure certa. Inquisitionem specialem non praecedente fama nullam et invalidam haberi: tex. in cap. inquisitionis, cap. qualiter et quando, d. 2. De occusat. cap. licet Heli de Simon., et est communis sententia ut docent Aegid. Bossius tit. inquisit. n. 8, Iulius Clarus § fin. q. 6, in prin. et Farinac. lib. 1, q. 9, in prin. Sed communis quoque sententia est; hoc fallere in crimine haeresis et laesae Maiestatis.: ex cap. excommunicamus § addicimus. de sent. excommun.; et in caeteris atrocibus et exceptis, ut tenent Praepos. Alexandrin. in cap. 1, n. 64, 2, q. 8, Gigas supra q. 9, n. 2, Caephal. cons. 304, n. 88, Decian. lib. 7, criminal. cap. 43, n. 8, Menoch. cons, 100, n. 64, Farinac. d. q. 9, n. 14 et 15, Navar. Rub. de iudic. n. 77, Valentia d. vers. Secunda regula. Quod licet de iure verum non foret, tamen quod de consuetudine et usu iudiciorum solemnitas diffamationis

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his conclusion 754, number 19.) But, as far as torture is concerned, this requires evidence which is directly relevant to the deed, and is serious, likely to be true, and clear. (See Digest, ‘investigations’, preface 1 [= 48.18.1. preface] and Codex, ‘soldiers’, same heading [= 9.41.8 preface], and Baldo and others referred to by Farinacci, question 37, number 3.) According to common opinion and practice, reputation alone would not be sufficient, as Farinacci tells us, (question 47, number 4), except in hidden crimes when it does suffice for torture—[Giulio] Claro tells us that this is generally accepted, (final paragraph of question 21, at about ‘reputation alone’), and Riminaldi junior, advice 462, number 3—or, if some other information about the reputation were supportive, being named by an accomplice who had confessed to his own crime, for example. (Farinacci, relying on [Alberto] Gandino and others, question 47, number 17.) The question is about whether this bad reputation is necessary, first of all for a specific interrogation of the individual, and secondly for torture. The rule is settled by law. A specific interrogation of an individual is considered null and void in the absence of a preceding reputation. (Text in chapter ‘of an examination’, chapter ‘of what kind and when’, 2 on accusations, and chapter ‘although Eli’ on simony’),296 and it is the common opinion, as we are told by Egidio Bossi, title ‘examination’, number 8, Giulio Claro at the beginning of the final paragraph of question 6, and Farinacci Book 1, at the beginning of question 9. But the common opinion also is that this does not apply to the crime of heresy or of treason, (according to the chapter ‘we excommunicate’, paragraph ‘we adduce’ in the sentence of excommunication), and in any other dreadful crime which falls outwith the normal legal rules, as the Bishop of Alexandria maintains in chapter 1, note 64, and 2, question 8; and [Girolamo] Giganti, op.cit. supra, question 9, number 2; [Giovanni] Cefalo, advice 304, number 88; [Tiberio] Deciani, Criminal Law Book 7, chapter 43, number 8; Menochio, advice 100, number 64; Farinacci, op.cit., question 9, numbers 14 and 15; [Martín de] Azpilcueta (Navarre), heading on judges, number 77; and [Gregorio de] Valencia, op.cit., about the second rule;297 and although it would not be true of the law, many people attest, because of custom and practice in the conduct of trials, that the formal [charge] of disreputability is no longer used in a court

296 297

These are references to canon 8 issued by Pope Innocent iii from the Fourth Lateran Council in 1215 and to a decretal on simony which he issued in 1199. I.e. Giovanni Antonio Sangiorgio (died 1509) was a Cardinal and a canon lawyer. He was sometimes referred to as Bishop of Alexandria. In 1476 he published a commentary on the Decretals. Giovanni Cefalo (c.1511–1580) was a jurist from Ferrara. He published a collection of legal advice in 1572.

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ab Aula recesserit multi attestantur: Clarus supra Bonacoss. lib. 1, comm. opin. verbo, Inquisitionem praecedere debet, Farinac. de loco n. 21. Sufficit ergo quoad inquirendum in nostro crimine excepto nominatio reorum, ut optime post Baldum alii: Bald. in lib. 1, cap. de sum. Trin., n. 6, Marsil. cons. 12, n. 38, cons. 15, n. 5, et 6, cons. 28, n. 16, Grammat. cons. 21, n. 7, Clarus § fin. q. 21, n. 5. Haec adeo certa puto, ut mirer quosdam consultos de inquisitione in hoc crimine contrarium, contra communem et praxim, rescribere ausos fuisse. Quod attinet ad torturam, res est controversa nonnihil, tamen quod olim tenui, non requiri diffamationem, d. sect. 3. n. 1; idem nunc adhuc cum affirmantibus Friburgensib. et Ingolstadiensib. assero: cum Lanfranco in pract. crim. cap. 8, Decia. d. cons. 18, n. 42, Menoch. d. cons. 100, n. 64, Binsf. memb. 2, concl. 6, dub. 2, illat. 6, Valentia d. disp. 6, q. 13, punct. 4 § 3. v. secunda regula. Nam si sine aliis adminiculis duorum nominationes valent contra personam bonae famae, certe non requiritur praecedens denunciationem diffamatio. Deinde cum hoc crimen sit occultissimum et Lamiarum maxima vafirities, vis unquam diffamatio praecedit denunciationem. Fama quoque est indicium remotum a facto, et persaepe vix populi vana et fallax, etiam cum a personis honestis et fide dignis orta, ut bene Farinac.: d. q. 37, n. 26, et 46. Doctores etiam cum agunt de propriis et peculiaribus indiciis in crimine maleficii, aliquando | unum aliquando plura ad torturam requisita recensent; non tamen addunt famam debere concurrere cum illis, vel illa praecedere, sed potius contrarium insinuant; aliquando namque docent famam seu diffamationem solam absque aliis adminiculis sufficere; aliquando alia indicia sola, ut videre licet apud Menoch. lib. 1, praesumpt. 89, Binsf. et a me citatos ubi supra. Et ipse Carolus, 5, ponens indicia, quae singula sufficiant ad torturam, nullam diffamationis adiicit mentionem: patet ex Ordinatione 29, et seq. usque ad 32. Nec obstat const. 44, ubi additur expresse et “illa persona sit super hoc alias

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of law. ([Giulio] Claro on [Ippolito] Bonacossa, Book 1, ‘in accordance with what common opinion says, he ought to proceed with the examination’; and Farinacci, op.cit., number 21.) Therefore, the naming of names by the accused is sufficient, as far as setting off an inquiry is concerned in a crime which falls outwith the normal legal rules, which is the one we are discussing here, as others, following Baldo, say very well. (Baldo on Codex, ‘the Trinity on high’, [= 1.1], number 6; Marsigli, advice 12, number 38, advice 15, numbers 5 and 6, and advice 28, number 16; Grammatico, advice 21, number 7; Claro, final paragraph of question 21, number 5). I think this is so well-established that I am surprised a number of those who were consulted have ventured to write the opposite in their reply about examination in this crime, contrary to common [opinion] and practice. As far as torture is concerned, the matter is somewhat controversial, but I have maintained in the past that disreputability is not a requisite, (section 3, number 1), and I now still say the same, as do the scholars from Freiburg and Ingolstadt. (So do Lanfranco [de Oriano] in Criminal Practice, chapter 8; [Tiberio] Deciani, advice 18, number 42; Menochio, advice 100, number 64; Binsfeld, part 2, conclusion 6, doubt 2, inference 6; [Gregorio de] Valencia, op.cit., dispute 6, question 13, point 4, paragraph 3 on the second rule.) After all, if two people’s naming someone with a good reputation is sufficient, without any other supporting evidence, disreputability is certainly not required before someone can lay information [against someone else]. Secondly, since this crime is one which is carried out entirely in secret and the craftiness of witches [lamiarum] is very great, disreputability scarcely ever precedes the laying of information. Reputation is also a piece of evidence which has nothing to do with a [criminal] action, and very often what people say is worthless and deceptive, even when it has come from respectable individuals who are worthy of belief, as Farinacci rightly says, (op.cit., question 37, numbers 26 and 46). When scholars are dealing with evidence which is specific and peculiar to the crime of working harmful magic [maleficii], they think that sometimes one thing is requisite to have someone tortured and sometimes more than one, but they do not add that reputation should accompany or precede those requirements. Actually, they intimate the opposite. Sometimes they tell us that reputation or disreputability alone is enough, without other supporting evidence, and sometimes, as one can see from Menochio Book 1, presumption 89, Binsfeld, and those I cited earlier, that other evidence by itself [is enough]. Charles v himself, while setting down the individual pieces of evidence which are sufficient to warrant torture, made no mention of disreputability, as is clear from his Code, 29ff. to 32. Provision 44 of the Code, in which it is expressly added, ‘that

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infamata.” Non inquam obstat. Nam conditio illa non ad omnia praecedentia indicia, sed ad proximum tantum spectat; iuxta limitationem illam eruditam Menochii, quod quando determinabilia sunt inaequalia, seu diversae rationis, tunc quae illis subiungitur ratio vel restrictio non ad omnia, sed ad id quod proxime praecedit referenda est, ut illud limitet ac determinet: lib. 4, praesumpt. 89, n. 143. Nec obstat etiam cap. inquisitioni. de accusa et inquisit., nam illud cap. vel procedit tantum de duobus vel pluribus extra iudicium denunciantibus maleficium: Mart. Azpilqueta, Rub. de Iudic. n. 78; vel si extendas ad denunciationes in iudicio, intelligendum, cum alia indicia sufficientia desunt; tunc enim diffamatio saltem est necessaria, secus si adsint alia indicia proxima et urgentia. quaestio viii An satis denunciari aliquem aut aliquam a pluribus, quod ipsam viderint in conventu et congregatione sagarum, in ordine ad torturam absque eo quod damna fecerit? Qui tenent negativam nituntur variis fundamentis. Nam eorum quidam totum hoc chorearum et conventuum negotium exsibilant, ut delirium; et re vera nihil tale accidere contendunt, quos puto me satis copiose refutasse: lib. 2 Disquis. Mag. q. 16 et plenius lib. 5, sect. 16, post. litt. tt. in solutione quinti arg. in editione tertia Moguntiae apud Albinum in folio; et ostendisse ut plurimum non esse illusiones, et modos suggessisse Iudici quibus discernat illusas a non illusis. Postea vidi quorumdam dd. quoddam M.S. consilium, in quo conantur elevare hoc genus indicii, sed argumentis, ut videbitis vix dignis refutatione; respondebo tamen hic, ut ipsimet videant, si haec videbunt, fundamenti sui infirmitatem. Primo, quia testis minus apte extra sensum vel ex sensu rei depositae

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person has been given a bad reputation at some time or another on account of this,’ is no obstacle, either. I say it is no obstacle, because that stipulation does not refer to all the pieces of evidence which precede it, but only to the one next to it, according to Menochio’s learned limitation which says that when things which are capable of being decided are inconsistent, or can be explained in more than one way, then the explanation or restriction which is attached to them should be understood as referring, not to everything which precedes it, but to what precedes it immediately, the result being that this limits [the question of disreputability] and settles it. (Book 4, presumption 89, number 145.) The chapter ‘examination’ dealing with accusation and examination is not an obstacle, either, because that chapter simply deals with two or more people extra-judicially laying information about an act of harmful magic [maleficium]. (Martín de Azpilcueta, heading, ‘judgement’, number 78); or, if you extend it to information laid during a trial, one should understand it as referring to when other sufficient evidence is lacking because, under those circumstances, disreputability, at any rate, is a necessary requirement, unless other highly relevant and cogent pieces of evidence are available. Question 8 In the absence of evidence that a witch has done harm, for the court to proceed to torture, is it sufficient that a man or woman have information laid against them, by more than one person, that they have seen her [sic] in a meeting or assembly of witches [sagarum]? Those who answer ‘no’ rely upon various basic propositions. A number of them boo the whole business of dances and meetings off the stage as a piece of madness, and maintain that no such thing actually happens. I think I have refuted these people satisfactorily and at great length in Investigations into Magic Book 2, question 16, and more fully in Book 5, section 16, after the letters tt in the resolution of the fifth argument—see the third folio edition published in Mainz by [Johannes] Albinus—and have demonstrated that, for the most part, they are not illusions. I have also suggested to the judge ways whereby he can distinguish women who have been deluded from women who have not. Later on, I saw some advice, in manuscript, from certain scholars, in which they try to make light of this kind of evidence, but using arguments, as you will see, scarcely worth refuting. I shall answer them here, however, so that they can see—if they do see this—the weakness of their basic proposition. First, they say that a witness who gives evidence [from a time when] she was insensible or unaware of her surroundings, is offering a less than satisfactory proof of what

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deponens, probat.: lib. qui testatur § D. de his quae in test. delen. lib. testium. cap. eod., Blancus De indic. n. 49 et alii; sed istae quae denunciant se vidisse istas mulieres in choreis et comessationibus, non deponunt per sensum aptum, quia tunc illum non habebant; igitur nihil probant. Responsio: transeat maior, etsi indiget interpretatione. Negatur minor. Quam illi sic probant, utar eorum verbis: “Pro constanti namque habemus, quod hae striges et lamiae in actu et raptu illo existentes, sensus suos cum operationibus naturalibus et veris non habeant.” Quod pro constanti habetis, boni viri, hoc communiter I. Consulti et Theologi, pro falso habent, fatentur aliquando ita contingere, sed rarius longe: vide dicta a me locis praefatis. Videte etiam quam constanter id probetis quod habetis pro constanti. “Id (aiunt) ex eo colligimus quod congregationes istae in locis silvestribus et palustribus | fiant, ubi cibiet epulae sordidae, infames, ut plurimum berreae apponuntur, nullum alimentum, sed nocumentum, afferentes, supellectilia, vasa argentea et alia denique omnia ibi existentia, vel non vera, sed solum apparentia; vel ea adeo subtili et adeo fallaci materia fabricata, ut vere non consistant, et hinc ad simplicem Domini N. Iesu Christi nominationem evanescant.” Haec probant multorum testimoniis, quod nihil necesse, quia non probant quod illis probandum erat. Deinde addunt pro minore argumenti, et tamen praxis demonstrat, quod de amoenissimis locis, suavissimis cibis, et rebus pretiosissimis deponant atque testentur. Quod est argumentum efficax et inevitabile deficientis vel saltem depravati, et minus apti sensus. Respondeo: Hos argumentantes valde allucinari, quoniam ab eo quod aliquando contingere Grilland. Remig., ego et alii asserimus, ipsi inferunt universalem id semper contingere: cur si nobis credi poscunt de iis quos deceptos diximus, non credunt de reliquis quos deceptos negamus? Cur putant, quia in loci ornatu deceptio est, sequi tali in loco non fuisse corporaliter? Quasi non possit daemon illas et eo transferre, ut illic vere fuerint, et nihilominus amoenitatem hanc oculis, et cibos palatui, et similia obtrudere, more praestigiatorum, an quia puto me in praestigiatoris ludo vidisse quae non vidi, sequitur me in

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she is saying, (Digest, paragraph ‘the person who testifies’, on what to ignore in a testimony; likewise, Codex, ‘of witnesses’ [= 4.20.18 preface]; [Marco Antonio] Bianchi, Circumstantial Evidence, number 49, and others.) The women who lay evidence that they saw these women dancing and feasting are not giving the evidence of their senses, because they were not in their right senses at the time. Therefore, they prove nothing. My answer is, let the major premise pass, even if it is meaningless. The minor premise is unacceptable. This is how they ‘prove’ it, (and I shall use their own words). ‘We take as a given that, when these shape-changers [striges] and child-killers [lamiae] are doing what they do and are in the midst of their ‘rapture’, they are not sensible of the kinds of thing they are actually doing and which are characteristic of them.’ What you take as a given, my good fellows, legal experts and theologians in general take to be a misapprehension. They acknowledge that it sometimes does happen like this, but very infrequently. (See what I said in the earlier passages.) Notice, too, how consistent you are in proving what you take as a given. ‘We gather from this that these assemblies take place in wooded and marshy spots where their disgusting banquets are held, their food is laid out on the ground, and they give rise to harm, not nourishment. Furnishings and vessels and other things all made of silver are there, but they are not real. They merely seem to be so, or are made from such a thin and such a deceptive material that they do not really exist and hence vanish at the mere mention of the name of our Lord Jesus Christ.’ They prove this with the testimonies of many people, which is not in the least necessary because they do not prove what they want to prove. Secondly, they add on behalf of the lesser premise of their argument, ‘The practical experience [of the courts], however, shows that they give evidence and testimony about very pleasant spots, very agreeable food, and very precious objects, and this is the effective and inescapable evidence of someone who is out of his senses, or at least of someone whose senses are distorted and less able to do their job.’ My answer is that those who put forward this argument are talking utter nonsense, because when [Paolo] Grillando, [Nicolas] Rémy, I, and others say that it sometimes happens, these people infer the general statement that it always happens. If they demand we believe what they say about those we said have been deceived, why do they not believe what we say about all the others we say have not been deceived? Why do they think that, because these people may have been deceived about the way the place was furnished, it follows they were not physically present in such a spot? As if it is not possible for an evil spirit to transport the women there and that, in consequence, they really were there—and yet, he thrusts this pleasantness upon their eyes, the food upon their palates, and so forth, by means of conjuring-tricks! Because I think I have seen things I have not actually seen during a conjuring-show,

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ludo non fuisse? An non veram cladem gregibus dedit Aiax, quia Laertiadem et Atridas caedere se opinabatur? Sed evanescunt audito nomine iesu: praestigiae ergo fuere, non tamen ideo, non illic fuere striges, quae praestigiis ibi delusae; deinde potuit subito, quae vera et solida erant, Diabolus oculis subtrahere, et sic evanuisse videantur. Sic ergo hoc argumentum sensus quoad quaedam deficientis, et altquando: quid inde? Subdunt rationem physiologicam: “Totius corporis compago et sensuum harmonia pro sui conservatione mediocritatem quamdam requirit, ideo in tantum motus violenti celebritate, ut est asportatio illa Diabolica, consistere non potest.” Respondeo: Mediocritatem hanc non consistere in invisibili; sed habere suam latitudinem, in uno maiorem, quam in alio. Diabolum vero qui vires singulorum optime perspectas habet, iis motus velocitatem sic attemperare, ut praeter fatigationem detrimenti nihil sentiant. An minus videt, audit, gustat, sentit, qui veredariis currit, et fatigatur, quam qui sensim pedibus ambulat? Addunt: “Praeterea spectra, quae nocturnis tenebris imaginationi perterritae sese offerunt, quoties illa supposita nox sit, usque adeo vim omnem corpoream laedunt, ut vel a deferente deciderent homines, vel terrore consternati perirent, vel in gravissimum aliquem affectum inciderent, quod experiuntur, qui levioribus occasionibus persaepe ex solo terrote in gravissimos incidunt morbos. Quare si eo incolumes deferuntur, necesse est vi aliqua naturae vires excedente suspendi animae actionem in totum corpus, ita veluti cadavera sensus ac mentis omnino expertia pro illo tempore sint; et hoc est quod novissime voluit Del Rius d. q. 16, lib. 2, sub littera C, vers. posset daemon, ibi horum enim unctione obstupefacit sensum et miseris persuadet, etc.” Quaero cur non addunt quid persuadeat, quod | ego addidi: persuadet unguenti vim esse maximam? An quia videri volebat me dicere: pesuadet illis quae

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does it follow I was not at the show? Did Ajax not really massacre the herds of animals because he thought he was slaughtering the son of Laertes and the sons of Atreus?298 ‘But they vanish when they hear the name of Jesus. Therefore, they were conjuring-tricks and therefore the witches [striges] who were deluded by conjuring-tricks were not there.’ Secondly, the Devil could suddenly have withdrawn from their eyes things which were real and solid, and this is why the women thought they had vanished. So, this is [these people’s] argument in relation to certain aspects of the deficiency of [the women’s] senses and the occasions on which it happens. What do they say next? They add a physiological explanation. ‘The structure of the whole body and the harmony of the senses requires a certain moderation for its own preservation. Therefore, it simply cannot exist in the speed of a violent movement, such as that of being transported from one place to another by the Devil.’ My answer is that this kind of moderation does not exist when it comes to someone who is invisible. He has his own range [of speed], greater in one case than in another, and the Devil, who has the strength of several individuals, as is very well known, tempers his speed of movement in such a way that they feel no discomfort apart from fatigue. Does someone who moves quickly by wagon see, hear, taste, or feel less, and is he less tired, than someone who goes slowly on foot? They add: ‘Moreover, spectres which appear to the terrified imagination during the darkness of night have such a deleterious effect on people’s physical strength every time night comes that people either collapse at the sight, or are overwhelmed with fright and die, or are very badly affected by it, and those who have this experience in less oppressive circumstances often fall very seriously ill from sheer terror. Consequently, if they are brought [to their meeting] safely, it must be that some force exceeds their natural strength, and the activity of the breath throughout their whole body is suspended, and during that time they are entirely deprived of their senses and consciousness. This is an entirely novel idea which Del Río advances in Book 2, question 16, letter C at the words “an evil spirit could [do this] because at that point, by means of their ointment, he stupefies their senses and persuades the wretched women”, etc.’ My question is, why don’t they add what he persuades, because I added, ‘he persuades them that the power of the ointment is very great’? Or did they want it to seem that that I was saying, ‘he persuades them of things which do not

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In his play Ajax, Sophocles tells us that Athene tricked Ajax into believing that the herds of livestock captured by the Greeks were actually the Greeks themselves, and so he slaughtered many of them.

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non sunt? Certe miror me dici voluisse, quod tota illa q. 16 tam exacte refutavi, hoccine est bona fide consulere? Dico iterum nihil aliud me ibi asseruisse, nihil voluisse, quam causam reddere cur quod sine unguine daemon possit, cum eo malit. Terror nasci solet ex re incognita, nam notis non terremur vehementius nec diutius. Sagae sciunt quae vident daemones esse, et ipsorum fieri opera, quibus etiam commiscentur, facillimum est illi, imaginatione non laesa, sed delusa, sensu non sublato, sed aliquantulum alterato, eas deferre, caetera quae addunt mera et inania verba sunt, nec me, nec aliis admittenda. Pergunt: “Alia et secunda ratio huic valde proxima nos trahit, quod hae personae vel vi venefici huius unguenti, vel furore Diabolico ita divina permittente manu, prorsus ebriae et furiosae dicantur. Abbas Tritthem. d. q. 6, col. 3, cuius verba cum propositae rei apprime serviant, referre placuit: voluntatem habent (inquit) depravatam, quae eas convertit in furorem, quo mentem praeoccupante, mox daemones se furentibus applicant, et effectum eorum, quae ipsae maleficae petunt, Deo permittente Daemones insanientibus praestant. Simile voluit Picus de rerum praenot. cap. 5, in fin. lib. 1, dum inquit: Necromantici furunt, chiromantici delirant, Magi insaniunt. At iure probatum est quod dicta furiosi et ebrii non considerentur: Specul. de testament. §1, n. 8, Bart. de testibus ver. furiosi. Albert. detestibus n. 32, Campeg. de test. reg 114.” Respondeo: Argumentum aequivocio vitio laborare. Nam in minori, I.C. illi furiosas vocant proprie sumpto vocabulo, quorum imaginatio laesa. In maiori Tritthem. de voluntatis malitia loquitur, et furoris vocabulum sumit improprie, sicuti cum iratos dicimus furere. Quod in Pici verbis clarius elucet; quis enim

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exist’? Certainly, I am surprised that I advanced the idea, because this is precisely what I refuted in the whole of question 16. Is this consulting in good faith? I say again, I have claimed nothing there, and meant nothing, other than to explain why an evil spirit is able to do this without ointment, since he prefers to do it with ointment. Terror usually arises from something one does not recognise, because we are not frightened any more or any longer when we have recognised what it is. Witches [sagae] know that the things they are seeing are evil spirits and things created by the evil spirits with whom they are having sex. It is very easy for [the Devil] to transport them when their imagination is not damaged but deluded, and their senses are not taken away but altered somewhat. Everything else they add is unadulterated, meaningless verbiage, and neither I nor anyone else should take any notice of it. They continue, ‘A second, different explanation very close to this one attracts us, namely that, either because of the power of this poisonous ointment or, (God permitting), because of a devilish frenzy, these individuals can be said to be absolutely drunk and filled with madness.’ Abbot Trithemius’s words, (question 6, column 3), are particularly applicable to the subject under discussion when he decided to say, “They have a perverted will which directs the women into madness, and when this takes over their mind, it is not long before evil spirits latch on to them while they are in a state of madness and, with God’s permission, put into effect what the witches [maleficae] themselves are asking for in their insane condition.” [Giovanni] Pico [della Mirandola] says something similar at the end of chapter 5 of Book 1 of his Foreknowledge of Things when he says, “Necromancers are lunatics, chiromancers are mad, and magicians are insane.” But it is legally proven that one does not pay attention to what a mad person and a drunk says. (The Mirror [of Justice] on testimony, paragraph 1, number 8; Bartolo [da Sassoferrato] on witnesses, at the word ‘maddened’; Alberto [Gandini] on witnesses, number 32; [Giovanni] Campeggi on rules for witnesses, 114’.)299 My answer is that the argument suffers from the fault of ambiguity because, in the minor premise, the legal experts they mention correctly use the word ‘raving’ of people whose imagination has been damaged. In the major premise, Trithemius is talking about the wickedness of the will and uses the word ‘madness’ incorrectly, the way we do when we say that angry people are ‘raving’. This comes out more clearly in Pico’s words, because who does not understand that

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Giovanni Zaccaria Campeggi (1448–1511) was the son and father of a lawyer and had a legal career himself in Pavia, Padua, and Bologna. He published a treatise on witnesses which was included in Volume 4 of A Treatise on Universal Law, published in Venice in 1518.

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non videat sic dici furere Necromanticos, et insanire Magos, sicut dicuntur chiromantici delirare? Quis umquam ullorum istorum habuit pro vere furioso, quem cathenis, non disputatione compescere solemus? Nonne illud, voluntatem habent depravatam, satis indicat de quo furore loquatur Tritthemius? Furor ille quem Bart. et caeteri dicunt a testimonio arcere, non oritur a voluntatis depravatione, sed ab imaginatione laesa natus, impedit sanam et liberam voluntatis functionem. Tertium argumentum adhuc levius est: “Consideramus (aiunt) quod hae sagae et maleficae, a tempore et momento illo, quo liniuntur et unguuntur, vel saltem a daemone asportantur, usque ad tempus quo revertuntur, naturam daemonis assumunt, ut inter ipsas vel daemonem nulla vel modica exstet differentia, et quicquid ipsae agunt, non ipsae, sed daemon opetatur, quod probant verba Tritthemii modo relata, ibi: illorum Daemones se furentibus applicant, quod etsi non eveniet per modum obsessionis, et quod daemon sagam ingrediatur, ibique tanquam Dominus navis operetur, evenit saltem, quod tamquam extrinsecus motae, per immutationem phantasmatum plurima inania et falsa ostendat, sensus ludificet, decipiat, atque fascinet.” Duo his verbis involvuntur quorum unum nihil commune habet cum altero, etsi quasi ratio alterius adiungatur. Prius est eas tempore strigiportii, naturam daemonum assumere, ita ut inter illas et hos | vel nihil vel modicum intersit. Hoc cum sit falsissimum, pernego. Quaeso si eques ab equo abripiatur, et illo in equo haerente, sed equum regere non valente, equus segetes calcet et conterat, etsi vere calcatio equo sit adscribenda, tamen quis dicat equitem equi naturam assumere, etc. Nec ad rem facit quod hunc invitum portat equus, nam nec striges semper sponte conscendunt fictitium hircum. Unde apparet, quae ex Tritthemis secundo loco ponitur, non probare quod praecessit, sed tantum aliqua fieri ab ipso daemone, quae striges se putant facere. Quod non negamus, sed asserimus falsam esse illam assertionem generalem: quicquid ipsae agunt, non ipsae sed daemon operatur. Quae ab homine nullo pacto aut vix fieri queunt, illa daemonis operationi possunt adscribi, sed esse in conventu, saltitare, se nigurgitare, blasphemare, etc. fiunt instigante daemone, sed a stri-

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necromancers are said to be lunatics and magicians insane, the same way chiromancers are said to be mad? Who has ever taken any of them to be a genuine madman—someone we usually confine in chains? Doesn’t the phrase ‘they have a perverted will’ pretty well indicate the kind of ‘madness’ Trithemius is talking about? The madness Bartolomeo and the rest of them say prevents someone from giving evidence does not arise from a perversion of the will but comes from a damaged imagination and impedes the sound, unrestricted functioning of the will. Their third argument is still more trivial. ‘Let us consider,’ they say, ‘that from the very instant they smear themselves with ointment, or at least are transported by an evil spirit, until the time they come back home, these wise-women [sagae] and workers of harmful magic [maleficae] take on the character of an evil spirit so that there is no difference, or hardly any, between themselves and an evil spirit, and that whatever they do is not done by them but by the evil spirit. Trithemius’s words which we quoted just now prove this. “The evil spirits latch on to the women while they are in a state of madness.” Now, even if this is not going to happen because the evil spirit lays siege to the wise-woman [sagam], enters into her, and operates inside her like the captain of a ship, it does happen, at any rate, that the women are stirred up from outwith themselves and that, by changing the images they have in their heads, the evil spirit shows them all kinds of things which do not exist and are not real, plays tricks on their senses, deceives them, and subjects them to his evil eye, [ fascinet].’ These words involve two things which have nothing in common with each other, even if the second purports to explain the first. The first is, ‘At the time of their being transported, the witches take on the character of the evil spirits in such a way that there is little or no difference between them.’ Since this is entirely untrue, I deny it altogether. My question is, if a rider is thrown off his horse and, while he is clinging on and unable to control it, the horse tramples on standing corn and stamps all over it, even if one actually has to ascribe the trampling to the horse, who is going to say that the rider has taken on the character of the horse, etc.? That the horse is carrying a man who is unwilling to be carried this way is beside the point, because witches [striges] do not always mount the feigned goat of their own accord. Consequently, it appears that the second quotation from Trithemius does not prove what precedes it, but simply that some things which witches think they are doing are being done by the evil spirit himself. This I do not deny, but I do say that the general assertion, ‘whatever the women do is not done by them but by an evil spirit’, is not true. Things which a human being cannot do at all, or are able to do with difficulty, can be ascribed to the operation of an evil spirit. But being at a meeting, dancing, guzzling food, blaspheming, and so forth, while being done at the

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gibus patrantur. Et bene quod ipsimet hoc advertentes sua caedunt vineta cum immediate subiungunt. “Est si quid vere et per sensus operantur, quod in quibusdam actibus negari posse non videtur, ut in saltibus, et concubitu cum daemone, iuramentis et obligationibus cum eodem ineundis, aliisque daemoni utilibus et proficius, totum hoc ipsi, tamquam instigatori et Domino earum personarum iam facto, tribuendum videtur iuxt. reg. lib. et si amicis D. ad leg. Iul. de adulter. Abb. Tritthem. d. q. 5, ubi (inquit) Daemonem uti voluntate furentis maleficae, sicut artifex instrumento ad operandum. Remig. d. cap. 14, col. 10, quae dicuntur daemonum ministerio et opera fieri.” Respondeo: Incauta Tritthemii verba videri hos allegantes in alterutrum praecipitasse. Vel enim voluerunt hoc sic tribui daemoni, ut non mereantur propter ea facta punitionem lamiae, vel ut absolute propterea negemus eas id operatas. Utrumque est intolerabile. Posterius quidem, quia licet ille sit Dominus imperans, et suasor incitans, tamen in tripudio pedes movet et vult movere lamia, atque ita de caeteris actibus. Nec servum latronem a poena latrocinii liberat iussio sui Domini. Idcirco et prius negandum. Deceptio suadentis, non impedit ne actio persuasi sit voluntaria. Putare autem quod Diabolus sic eorum voluntati dominetur, et liberi, esse arbitrii, seu libere velle desinant, Catholicae fidei repugnat. Quapropter comparatio illa instrumenti fabrilis nec satis apta, nec satis propria est, artificis absolutum in tetram dominium est, adeo ut cum ipse vult, serra idonea non possit non serrare; daemonis in voluntatem lamiae potestas nulla, nisi instigandi, sed semper illa potest cum Dei gratia, abnuere ac dissentire. Et quia hoc potest, quando Daemoni cooperatur rea poenae fit, hic temporariae, in altero saeculo aeternae. Denique quid haec omnia faciebant ad rhombum, nam etsi vera forent, non sequeretur sagas conventibus se interfuisse dicentes falsum deponere. Quod probandum erat, nec tamen hoc argumento vel sequentibus probatur. Sequitur enim:

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instigation of an evil spirit, are actually done by the witches [strigibus], and those who tack these two things directly together should notice they are doing a good job of cutting down their own vineyards. “Even if they are carried out in reality and via the senses—and it seems as though this cannot be denied in relation to certain actions such as leaping about, having sex with an evil spirit, taking oaths, entering into obligations with him, and other things which are advantageous to the evil spirit—it does look as though the whole thing would be better attributed to him as the instigator and one who has now become master of these individuals. (See rule 1, and ‘if to friends’, Digest, Lex Julia on adultery [= 48.5.10 preface, ‘if of a friend’]; Abbot Trithemius, op.cit., question 5 where he says that the evil spirit makes use of the witch’s will while she is in a state of madness, like a craftsman making use of a tool to carry out his work; [Nicolas] Rémy, op.cit., chapter 14, column 10, ‘things which are said to be done by the assistance and work of evil spirits.’)” My reply is that Trithemius’s unconsidered words seem to have cast those who are adducing this proof into two minds, because they have either intended to attribute this to an evil spirit in such a way that the witches [lamiae] do not merit punishment for what they have done, or [they want] us to say, without reservation, that the witches did not do it. Each of these is insupportable, the second in particular because although [the spirit] is a master giving her commands and a persuader giving her encouragement, it is still the witch who moves, and wants to move, her feet in the dance, and likewise for everything she does. A command from his master does not free a servant who is a thief from the penalty for theft, and in consequence one must deny the first proposition, too. The fact that a persuader is being deceptive does not prevent someone from being willing to be persuaded, but to think that the Devil is master of these people’s will, and that they cease to have free will or cease to [exercise that] will freely is contrary to the Catholic faith. This is why the comparison with a craftsman’s tool is inappropriate and improper. A craftsman’s dominion over his saw is absolute, to the extent that when he wishes, when he is ready to use it, his saw is unable not to saw. An evil spirit has no power over a witch’s [lamiae] will except that of urging her on. But with God’s grace she can always refuse to comply, and dissent; and because she can do this, when she co-operates with an evil spirit, she becomes guilty and liable to be punished, once temporally, and a second time eternally. Finally, what is the point of all this? Even if it were true, it would not follow that when witches [sagas] say they attended meetings they are giving false evidence. That is something which has to be proved, and it is not proved by this argument or by the ones which follow, because this is what comes next.

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“Et hac sola ratione vel transmutationis, vel omnimode similitudinis et operationis has dici existimamus lamias, quod est certi daemonun generis nomen. Torquema. d. Dialog. 3, fol. 4, in fin. Vel strigias nuncupari nomen paludem infernalem significans: Fran. Berna. Comens. de strigibus in princ. Ubi estis Etimologiarum studiosi? Accurrite: | Lamiae dicuntur certi daemones. Esto, nam idipsum alias probavi ex sacris litteris, et patribus: Commentar. in Traged. Senecae, et in disquisit.” Ideo illae dictae lamiae propter trium causarum unam, prima est transmutationis. Sed eas transmutari in Daemonem, id vero verae fidei repugnat sanctionibus, abstinendum ergo ab hac ratione secunda est omnimoda similitudinis. Haec ratio sic inde finite posita aeque falsa est ac prior, debuerunt addere in malitia aut quid simile, et adhuc negaretur hi: omnimodae 3 et operationis, hanc admitti posse censeo explicatam, instigatae et adiutae a daemone. Strigiae non vocantur, sed Striges et Strigae, a vulgo, nec illud a palude, strigiae, ridiculum commentum rei tam seriae inserendum, dictae ab obscaena volucri strige, cui nomen a stridendo, ut docui alias ex Sereno, Ovidio, festo, quibus hac in re potius credere debuerunt, cum et Simancas id clare posuerit: Cathol. instit. cap. 32, n. 1, quem ipsi laudant. Denique rationibus his, maiori huiusmodi. Lamiae sunt daemones vel saltem Daemoni simile. Subiungunt hanc minorem, sed daemonis testimonio nullo modo iudici credendum, ergo nec lamiis; haec enim argumentatio tota latet in his verbis, quae subiiciunt: “At impium esset nedum dicere, sed dubitare an dicto daemonis mediato vel immediato, absolute vel ad effectum inducendi aliquod indicium credatur, cum sit inimicus humanae naturae, author ac pater mendacii, ac demum iniustitia ipsa, quia nihil aliud esset, quam quod ministri iustitiae super iniustitia se fundarent.”

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‘We think these women are called witches [lamias] simply because they change shape or do things just like that’—actually, ‘lamia’ is the name of a kind of evil spirit, ([Antonio de] Torquemada, dialogue 3, at the end of page 4)— or they are called ‘strigiae’, a name which refers to a swamp in Hell, (Francesco Bernardo of Como, Witches, [De Strigibus], at the beginning.) Where are you, students of etymology? Present yourselves! ‘Witches are said to be a kind of evil spirit.’ Well, yes! I have proved that elsewhere, from Holy Scripture and the [Church] Fathers in my commentary on Seneca’s tragedies and in the Investigations. ‘These women are called witches [lamiae] for one of three reasons. (i) They change shape.’ But that they are transformed into an evil spirit really is contrary to the established teaching of the true Faith and therefore one must refrain from giving this explanation. ‘(ii) In every way.’ This vague suggestion is as untrue as the first. They should have added ‘in wickedness’, or something similar. Even so one would still deny ‘in every way’ in this context. ‘(iii) The things they do.’ I think this explanation can be accepted, provided [one adds] ‘instigated and assisted by an evil spirit.’ They are not universally called ‘strigiae’, but ‘striges’ and ‘strigae’, and ‘strigiae’ is not derived from a swamp—a ridiculous idea to introduce into such a serious subject. The name comes from a bird of ill omen, the strix, which is derived from ‘shrill squawking’. I have explained this elsewhere, based on Serenus [Sammonicus], Ovid, and Festus, and [these people] would have done better to believe them in this matter, since [Diego de] Simancas, whom they themselves praise, has given a clear explanation of this in Catholic Institutions, chapter 37, number 1.300 Lastly, to these explanations they add this minor premise to the major: ‘Witches [lamiae] are evil spirits, or at least something like an evil spirit.’ But a judge should not believe an evil spirit’s evidence and therefore should not believe witches, either. The whole rationale of this [explanation] lies hidden in the words they add to it. ‘But it would be irreligious, not only to say, but also to have reservations about whether one can unreservedly believe what an evil spirit says, whether he says it himself or through an intermediary, or [whether it is said] with the intention of introducing evidence of some kind, since he is an enemy of humankind, the author and father of lying and, when all is said and done, Injustice itself, because that would be nothing more than the servants of justice basing themselves on injustice.’

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The chapter is entitled ‘Child-killing and shape-changing witches’ (De Lamiis et Strygibus). The book was originally published in Valladolid in 1552.

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Respondeo: Quando creditur denunciationi sagarum; creditur, non daemoni; sed ipsis mulieribus, quae vel invito illo, vi tormentorum, aut sponte sua veritati testimonium, et iustitiae adiutorium exhibent. Argumentum horum consulentium tale est in summa. Dubia probatio non attenditur, sed requiritur quod pernecesse concludatur: cap. in praesentia de probationibus. Sed probatio petita a denunciatione lamiarum est plane dubia. Respondeo: Sufficere ut pro natura delicti verisimiliter concludat, ut alias ostendi sup. quaest. 1. Est minor quoque falsa est, nec bene probatur duobus quibus probant. Primum est quia quod interfuerint conventibus, non gignit nisi ex consequentia quadam praesumptionem sortilegii et aliorum criminum; aliquando enim intersunt aliqui, nihil horum committentes. Secundum est quia potest fieri quod vel ipsae deponentes delusae realiter ibi non adfuerint, vel denunciatarum absentium daemon figuram ibi repraesentarent. Ad primum dico: nunc tantum quaeri, an sufficiat denunciatio ista ad hoc, ut iudex verisimiliter putet interfuisse, et idcirco eo fine torqueat, ut fateantur de illa praesentia; interrogatio de caeteris criminibus consequens est, quia vix umquam fit ut qui interfuit non sint criminibus illis ordinariis irretiti, et ideo est de hoc praesumptio urgentissima. Ad secundum dico utrumque illud raro fieri, et posse iudici probabiliter constare; deponens fuerit delusa, necne, de repraesentatione quoque innocentis, rarissime eveniunt similia exempla. Utrumque docui d. sect. 16, docuit etiam posterius istud Binsfeld. et alii. Quintum argumentum est istud: “Quinto nos movet authoritas aliquorum sic in specie tenentium, quod de dictis visis et gestis in conventibus | istis Diabolicis nulla prorsus habeatur ratio. Prieras de Strigimag. lib. 3, cap. ultim. punct. 16, in fin., Simancas Cathol. instit. tit. 37, n. 15, Bernard. Comens. in Lucerna inquisitor. titul. De strigibus. sub. n. 13, vers. advertas, Noviss. Roman. de indiciis causarum civil. et criminal. cap. 82, n. 10, et ita passim servant tribunalia

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My answer is that when one believes information laid by witches [sagarum], one is not believing an evil spirit, but the actual women who, either against their familiar’s wishes, or because of the force with which they have been tortured, or of their own accord, bear witness to the truth and assist the cause of justice. The argument of those who are looking for advice is, in sum, as follows. ‘One does not expect proof to be dubious and it is an indispensable requirement that it be conclusive. (See the chapter ‘in the presence of proofs’.) Proof sought from information laid by witches [lamiarum], however, is obviously dubious.’ My answer is that it is enough if it demonstrates the innate character of the offence in a way which is likely to be believed, as I have pointed out elsewhere, (supra, question 1.) The minor premise is also not true and is not satisfactorily proven by the two things they offer by way of proof. The first is that because they took part in meetings, it does not follow, except by a specific argument [to the contrary], that one can presume [they took part] in witchcraft [sortilegii] and other crimes. Sometimes some people attend [these meetings] and do not commit any of these offences. The second is that it can happen that either the women laying the information are deluded and were not actually present, or that an evil spirit made a show of something which looked like the women who have had information laid against them but were not actually there. To the first point I say that, under these circumstances, one simply asks whether this information is enough for a judge to think it likely they were present, and therefore to have them tortured to get them to confess they were there. An inquiry about the rest of the crimes is a consequence, because it scarcely ever happens that those who take part [in these meetings] are not ensnared in the usual crimes I have mentioned, and therefore there is very good reason to make this presumption. To the second I say that both of these very rarely happen, and it is possible for a judge to make up his mind about the probability of whether the woman laying information is deluded or not. Similar examples about creating a representation of an innocent turn up very rarely. (I have talked about both in section 16, and Binsfeld and others have also talked about the second.) Their fifth argument is as follows. ‘Fifthly, we are influenced by the authority of some people who specifically think that there is absolutely no explanation for what was said, seen, and done during these devilish meetings. ([Silvestri Mazzolini da] Prierio, Hag-Magicians Book 3, last chapter, the end of point 16; Simancas, Catholic Institutions, title 37, number 15; Bernardo da Como, The Inquisitor’s Lantern, title ‘witches’ [strigibus], under number 10, at about ‘you may notice’; most recently a modern Roman, Evidence in Civil and Criminal

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Italiae; potiss. vero Sanctiss. Inquisitionis, prout ministri tam urbis, quam huius civitatis plene testantur.” Respondeo: Authores allegatos non asserere quod de dictis, visis, gestis in conventibus nulla prorsus habeatur ratio, sed tantum saepe falli et deludi deponentes, eo quod ea putent dicta, visa, gesta in conventibus, quae revera ab illis dicta, visa gesta non fuerunt. Refero me, ut dici solet, ad fidem libri. Videbis (Lector) Simancam expresse docere aliquando nec falli, nec deludi, sed vera deponere, et quae d. n. 5, dixerat ex Ponzinibii et Alciati sententia, ea refellere n. 6, et addere quod asserimus de vero et reali strigiportio: id tam certissimis testimoniis, et tam evidenti rerum experientia comprobat et cognitum esse, ut sit plane studium tenacius hoc inficiari, quod vero in secunda editione postea addidit; tantum ea causa addere, ut sciamus minus credendum illis, de facto alieno, quam de proprio deponentibus; item minus quando de nocturnis conventibus accusant socios, quam quando eos accusant de criminibus clara luce et extra conventus illos phanaticos patratis; item minus fidei contra socios mereri, quando nihil aliud imputant quam comessationes et choreas illas nocturnas, quam quando illas simul et alia facinora, puta infanticidia, messes grandinatas, etc. Quae ut vera fateor, ita non video quid faciant ad universale illud adversariorum dictum (nullam prorsus habendam horum rationem) adstruendum. Quamvis etiam Simancas in ea sententia fuisset: illius ne solius dictum, communi sententiae et praxi praeponendum? Eadem plane mens est Cumani et Prieiratis; quorsum enim tot exempla conventuum adferrent, et tam diligenter, quae in illis fiunt discuterent, nisi vellent ea iudicibus esse nota, et ab illis eorum, quam decet, haberi rationem? Dico quam decet, quia ipsorum prudentiae esse volebant considerare in casu occurrenti, quod vero similibus, delusam esse deponentem, nec ne, iudicare. Quare cum tam non bona fide scripto-

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Cases chapter 82, number 10.)301 Law-courts all over Italy pay attention to them and, most importantly, so do the tribunals of the most holy Inquisition, as its officers in Rome, as well as in this city clearly testify.’ My answer is that the authors they mention do not claim there is absolutely no explanation for what was said, seen, and done during meetings, only that those who lay evidence are often mistaken and deluded because what they think was said, seen, and done was actually said, seen, and done by them. I refer myself, (as the saying usually goes), to the credibility of a book. You will see, Reader, that [Diego de] Simancas clearly tells us that sometimes they are not mistaken or deluded, but lay information which is true, and that what he said in op.cit., number 5, relying on the opinion of [Gianfrancesco] Ponzinibio and Andrea Alciato, he rebuts in number 6. He adds what I maintain about the actuality and reality of the transportation of witches, that this has been proven and recognised by such entirely reliable testimonies, and such clear experience of the world, that it is obviously too persistent an activity to be denied. But he added this later, in the second edition, and added it simply so that we could know they are less believable, because they are talking about what someone else has done, than those laying information derived from their own experience. Likewise, it is less believable when they accuse associates of attending meetings at night than when they accuse them of crimes carried out in the full light of day outwith those mad meetings. Likewise, they are less deserving of being believed when they accuse associates and charge them with nothing more than feasting and dancing at night than when they charge them with these and other crimes at the same time, namely, infanticide, destroying harvests with hailstorms, and so forth. These points I acknowledge to be true, and therefore I do not see what they can do to prove the universal dictum of my opponents that ‘no explanation of these things can be accepted without reservation.’ Even had Simancas also been of this opinion, should only that dictum I have just mentioned be preferred to common opinion and practice? [Bernardo da] Como’s and Prierio’s intention is clearly the same, because why would they give so many examples of meetings, and discuss them so carefully, unless they wanted judges to know about them and have a proper regard to them? I say ‘proper’ because they wanted [judges] to use their discretion in a case where things which look like the truth present themselves, and to judge whether the woman laying the information is deluded or not. Consequently, since [those who answered no to this question] have mentioned those writers with such

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Possibly Sigismondo Scaccia (1564–1634) who published a book under this title, although it does not seem to have appeared in print until 1618.

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res istos allegarint, merito non credo quod de praxi Italiae et urbis addunt. In urbe et aliis locis Italiae iudex fuit Ghirlandus, qui eorum rationem semper habuit: Sacri Palatii Magister fuit Spinaeus, Itali Ananias et Picus et alii, et tamen omnes satis clare ostendunt vel maximam de his habendam rationem. Quod attinet ad Novae Rom. de test., quis vel ipse cum Alciato et Ponzinibio toties refutatis, ut tot Theologis, quorum constat hanc communem semper sententiam fuisse; tot Iureconsultis (et fallitur Simancas putans contrariam esse communiorem: Vide citatos a me d. q. 16, et d. sect. 16), tot philosophis et medicis, tot probatissimis historiis, unus obiiciatur? Quanto solidius, licet breviter Patavini dd. asserunt? “Satis esse quoad effectum torturae ut nominatores dicant illam aut illas vidisse in conventibus et conventiculis sagarum, nec oportere probare de damnis alicui illatis: et citant Binsfeld. De confess. malef. membr. 3, concl. 6, Dub. 2, et me d. sect. 16.” Idem asserunt dd. Friburgenses, propter alia multa crimina quae solent praecedere conventus, ut | apostasia, et blasphemiae; et concomitari, ut idololatria, Sodomia, etc, quae enumeravi, d. sect. 16, lib. xx, et quae nec minus, immo magis, Iudici punienda sunt, quam damna agris, pecoribus, hominibus data. Nimis enim audax ille consultor fuit, qui asseruit se pro Theologico axiomate audere affirmare: “Quod iudex saecularis minus sollicitus esse debeat quando inculpatio est de sagarum conventibus et choreis, quam quando est de maleficiis venenariis seu damnosis proximorum rebus aut corporibus.” Nullus enim Theologiae peritorum hoc axioma pro rato aut securo accipiat, sed pro paradoxo et periculoso. Tum quia ratio parum efficax est, qua id probat, nempe quia ex conventibus illis et choreis respubl. directe damno non afficiatur, tum quia nihil urget confirmatio, quod ideo sanctio Carolina in solo illo maleficio noxio seu venenario regi poenam praescripserit; inconventuum vero et ibi patratis criminibus sagarum liberam iudici poenam reliquit, videlicet uti sciat haec sibi minus consideranda, quoniam reipu. minus sint perniciosa. Periculosa certe (ut dixi) opinio, nec vera; semper enim iudici maioris faciendus est honor et iniuria Dei, quam cuiusvis hominis, et magis laeditur respub. atroci iniuria Deo,

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a lack of good faith, I certainly do not believe what they add about practice in Italy and Rome. In Rome and other places in Italy, there was a judge, Ghirlando, who always had regard to these points. [Bartolomeo della] Spina was Master of the Sacred Palace, and the Italians [Giovanni d’] Anania, Pico [della Mirandola], and others all demonstrate clearly enough that one should give them very careful consideration. This applies to the most recent Roman law on witnesses whom he, for example, and Alciato and Ponzinibio have refuted so many times, as have so many theologians (who, it is agreed, have always had this opinion in common), and so many legal experts—and Simancas is wrong to think the opposite opinion is more common: see the authorities I cited in question 16 and section 16—and so many philosophers, physicians, and so many tried and tested anecdotes. So where can an objection come from? How much more substantial, although briefly made, is the declaration made by the scholars from Patavia? ‘It is sufficient to warrant the use of torture that those naming names say they saw that woman or those women during meetings and gatherings of witches [sagarum] and it is not necessary to prove [what they say] about the injuries done to someone,’ (and they cite Binsfeld, The Confessions of Women Who Work Harmful Magic, part 3, conclusion 6, doubt 2, and me from section 16.) The scholars from Freiburg say the same because of the many other crimes, such as apostasy and blasphemy, which usually precede the meetings, and those such as idolatry, sodomy, etc. which are committed while they are going on—I enumerated these in section 16, at letters xx—and which a judge should punish not less, indeed more, than damages done to fields, farm livestock, and human beings. The counsellor was far too bold when he declared, as a basic theological principle, that a secular judge should be less concerned when the charge is one involving witches’ meetings and dances than when it is one involving poison and acts of harmful magic, or damage to the property and persons of next-door neighbours and relatives. No one who knows anything about theology regards this principle as settled and free from doubt, but as one which is paradoxical and hazardous. This is because the grounds for it are not nearly valid enough to prove it since, of course, (i) the state is not directly affected by the harm done by those meetings and dances, and (ii) any corroboration has not the slightest effect, because the Carolina Code has prescribed that a penalty be inflicted only in the case of the injurious and poisonous act of harmful magic I mentioned. As far as the meeting and the crimes committed there by witches are concerned, however, it has left the judge a free hand as regards the penalty, that is, to let him know that these things should be given less consideration since they are less injurious to the state. The opinion is certainly hazardous, as I said, and is not true, because a judge should always make more of God’s honour and an injury done to Him than [the honour] of any

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quam hominibus illata. Quare de illa magis sollicitus esse debet et eam acerbius punire, diligentiusque conniti ad exstirpationem criminum, quae directe laedunt maiestatem divinam, quam quae directe vergunt in hominum iniuriam damnumve. Iudex etiam saecularis in iudicando non reip. tantum, sed Dei vices gerit. Saecularibus quoque iudicibus loquebatur Iosaphat Rex cum diceret: Videte quid faciatis, non enim hominum exercetis iudicium, sed Domini. 2, Paralip. 19.6. Non de homicidiis tantum et veneficis, sed de omni maleficio ac crimine sagarum capiendum illud: Maleficos non patieris vivere, Exod. 22, 18, ubi vocem Hebraeum metassephah ‫ מכשפח‬non esse restringendam ad veneficum alias contra Wierum Domi. In conventibus daemonem adorant, in iisdem nefandissima quaeque patrant, venena praeparant, clades hominum pecorumque calamitates frugum decernunt. Solius idololatriae quanta iudici sollicitudo gerenda docet Deut. cap. 13, v. 8, ubi expresse praecipitur: Nec parcat ei oculus tuus, ut miserearis eius aut occultes eum, sed statim interficies. Non scio ubi de ullo crimine, quod reip. directe noceat, sic loquatur S.S. Nec sinit prudentia simus solliciti de rivulis avertendis, magis quam de fonte exhauriendo. Fontes malorum sunt isti conventus, rivuli tantum illa veneficia et damna data. Inanis ergo ratio est illa directo damno. Tinniant aures horum consultorum, expavescant corda iudicum illis credulorum, ad illa iudici per prophetam comminata Dei verbis: “Loquens locutus sum, ut domus tua, et domus patris tui ministraret in conspectu meo usque in sempiternum. Nunc autem dicit Dominus, Absit hoc a me, sed quicumque glorificaverit me, glorificabo eum; qui autem contemnunt me, erunt ignobiles. Ecce dies veniunt, et praesidam brachium tuum, et brachium domus patris tui, ut non sit senex in domo tua.” 1. Reg. 2. 30. Cur iudici tam graviter minatus? An quod veneno vel ferro aliquos interemerat? An potius quia Deo illatam a filiis iniuriam satis ultus non erat? Scilicet minus Sacrilegae sunt sagae, quam filii Heli.

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human being, and the state is harmed more by a dreadful injury done to God than one done to human beings. Consequently, [a judge] ought to be much more concerned about that, and ought to punish it more severely and make a greater effort to extirpate those crimes which directly injure God’s majesty than those which directly tend to injury or loss to human beings. When giving judgement, too, a secular judge acts not only in place of the state, but also of God. King Jehoshaphat was speaking to secular judges when he said, ‘Consider what you do, because you pass judgement not only on behalf of human beings, but on behalf of the Lord,’ 2 Chronicles 19.6. The verse, ‘You will not allow workers of harmful magic to live,’ (Exodus 22.18), should be understood as referring not simply to murders and poisonings, but to every act of harmful magic and every crime committed by witches [sagarum], because, contrary to what Master Weyer has said elsewhere, the word ‘metassephah’302 [mekashshepah] should not be confined to ‘poisoner’. They worship the Evil Spirit at their meetings and do unspeakable things there, prepare poisons, and resolve upon the destruction of human beings and damage to their livestock and crops. Deuteronomy chapter 13, verse 8 tells us with how much concern a judge should act in connection with idolatry alone. ‘Do not let you eye spare him so that you take pity on him or hide him but kill him straight away.’ I do not know where Holy Scripture speaks this way about any crime which directly harms the state, nor does practical good sense allow us to be more concerned about diverting streams than removing their source. These meetings are sources of evil; the acts of poisonous magic and damage are simply the streams they produce. Therefore, the argument about ‘direct’ damage is worthless. Let the ears of these counsellors ring, and the hearts of judges who believe them start to feel great fear at the threats made by God to a judge through the prophet [Samuel]: ‘I spoke and I said that your house and your father’s house should be my servants in my sight for ever. But now, says the Lord, I have changed my mind. Whoever glorifies me, I shall glorify him; but those who despise me will be entirely forgotten. Behold, the days are coming, and I shall cut off your arm and the arm of your father’s house, and there will not be an old man existing in your house,’ 1 Kings 2.30. Why did He threaten the judge with such vehemence? Was it because he had killed some people with poison or a sword? Or rather, was it because he had not avenged the injury done to God by his sons? In other words, witches are less sacrilegious than the sons of Eli!

302

This appears to be a printer’s misreading of ‘t’ for ‘c’ which appears in other editions of the Disquisitiones.

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Sed obiicitur Carolina sanctio, et male obiicitur | ex arg. 109. Multiplici enim solutione sine negotio removetur. Potest dici cum Friburgensibus, in d. sanctione nomen Zauberey, accipi in generaliore et latiore significatione, quatenus et Magiam et maleficium complectatur. Nam ex Germanicae linguae proprietate liquet et magos et maleficos, Zauberear, vocari. Ideo cum magi et malefici stricte sumptis vocabulis valde differant: ut docet Binsfeld. in lib. multi. 6, cap. de malef. et mathema. in prin., et gravius sit delictum maleficorum, nihil mirandum si distinctas utrique crimini poenas Imper. praefixerit. Vel cum Linsfeldio, in lib. 5, cap. de malef. et mathem. circa fin. concl. 2. Imperatorem in hac constitutione non loqui de delicto Magiae secundum totam eius latitudinem, qua comprehendit ut species divinatoriam, Amatoriam, et Maleficam seu veneficam, sed secundum unam speciem, nempe tertiam, quatenus veneno grassantur; et hominibus iumentisque nocent: lib. 1, cap. de malef. et mathem. Constituere itaque ut si veneno grassentur, et de facto hominem iumentumve necassint, comburi debere; si vero effectus seu nocumentum hoc secutum non fuerit, tunc non ordinaria ignis, sed extraordinaria poena prudentis viri arbitrio puniendas: lib. sunt quaedam D. de extraord. crim. Vel denique ut olim respondi; illic Imp. non negare quin maleficae si cum daemone fuerint foederatae, si in conventibus consueta fecerint, morte plectendae sint, sed sancire, si venenariae sint, semper igne puniendas; si vero non sint venenariae arbitrio iudicis puniendas, hoc est aliquando igne, aliquando alio supplicio. Nec enim (ut volunt adversarii) idcirco venenariis rogum intentat, quod alios minus noxios censeret reip. (contrarium iam docui), vel quod in istis detegendis minorem iudicis sollicitudinem exigeret (quod de tam pio et divini honoris et fidei usque adeo Zeleso principe non est credibile); sed quoniam volebat cavere, ne iudices errarent existimantes in damnis per hoc crimen illatis, eodem arbi-

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Now, the Caroline Code is raised as an objection, (and not a very good one), because of argument 109. This can be set aside without difficulty with more than one explanation. One can say, as the scholars from Freiburg do, that in the said decree the word Zauberei is to be understood in a somewhat general, somewhat broader sense, so that it embraces magic and harmful magic, and that because of a peculiarity of the German language Zauberer can be used both of magicians and of those who work harmful magic. So although magicians and workers of harmful magic are, in the strict sense of the words, very different, (as Binsfeld tells us in many places at the beginning of his Confessions),303 and the offence committed by workers of harmful magic is the more serious, no one should be at all surprised if the Emperor fixed separate penalties for each of the two crimes or, (along with Binsfeld in Confessions Book 5, at about the end of conclusion 2), that in this Code the Emperor does not speak about the offence of magic with reference to its entire broad meaning which includes, divination, love-magic, and harmful or poisonous magic, but with reference to a single type, namely, the third, seeing that [witches] attack people with poison and do harm to human beings and beasts of burden. ([Binsfeld], Confessions 1.) Therefore [the scholars from Freiburg] decided that if [witches] attack people with poison and actually kill a human being or a draught-animal, they ought to be burned, but if they have not done this, or harm has not been the result, they should be punished as an experienced judge decides. (‘There are certain crimes’, Digest, ‘unusual crimes’ [= 47.11.9].) Nor, finally, (as I said in answer earlier), does the Emperor deny that if witches [maleficae] have made a covenant with an evil spirit, and if they have been in the habit of attending meetings, they should be put to death. He does decree, however, that if they are poisoners, they must always be burned. If, on the other hand, they are not poisoners, they should be punished in accordance with what the judge decides—that is, sometimes by being burned, sometimes by a different punishment. He does not, therefore, (as objectors think he does), send poisoners to the fire because he thought others are less harmful to the state—I have already said the opposite—or because he was demanding less care from a judge in discovering them, (something which is not credible in such a devout prince who is so zealous for God’s honour and the Faith), but because he wanted judges to be on their guard lest they make a mistake in thinking they should moderate the severity of punishment in cases of harm done by this crime. [He wanted them] 303

The title Del Río uses—Confessions of Workers of Harmful Magic and Astrologers—tells us that he is referring to a second revised and expanded edition of Binsfeld’s book, which was published in Trier in 1591. The relevant title appears from pp. 365 onwards. Del Río’s next two citations of Binsfeld refer to the same edition.

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trandum modo, quo de caeteris criminibus damnificantibus, in quibus pro quantitate damni, vel personarum occisarum qualitate, poenae magnitudinem moderantur, vel etiam putarent tales noxios veneficos sicut caeteros homicidas decollandos; id inquam ne censerent, sed intelligerent quam atrox crimen sit veneno et ope daemonis quem tollere, ideo huiusmodi reos omnes voluit ultrici incendio absumi. De caeteris criminibus a lamiis designari consuetis, id noluit exprimere, quia satis censuit iudicibus id persuasum, ipsa Germaniae praxi, iam a Friderici et Maximiliani primi temporibus recepta, cui non est censendus voluisse tam clanculum, et obscure per consecutionem quandam detrahere. quaestio ix Quando fit talis denunciatio, quod haec vel illa persona interfuerit conventibus sagarum, an requiratur specificatio temporis et loci, vel utrum sufficiat generalis denunciatio plurium absque huiusmodi circumstantiis ad inquisitionem et torturam? Sicut iure communi ordinarie in accusatione exprimi debet locus et tempus, non dies, sed mensis annusque: lib. Libellorum D. de accusat. et ibi Bart. n. 2. s. cap. fin. § libellorum 2. q. 8: quando factum semper, non una die certa punibile est: Barthol. ubi n. 12. Sic etiam in particulari inquisitione, quia | Iudex tunc vicem subit accusatoris: Bart. in lib. 2 § si publico n. 12 D. de adulter. communiter receptus, iuxta Aretin. et Felin. in cap. qualiter § debet de accusat. et totius mundi praxim iuxta Ang. in lib. ea quidem n. 3, cap. de accusat., Bossius tit. De inquisit. n. 90, Clarus § fin. q. 31, num 11. Et ideo, ut reus suas defensiones queat instruere, debet in inquisitione etiam diem exprimere; si reus id petat, quia forte vellet docere se tum alibi fuisse: Barth. in lib. is qui reus D. de public. iudic. n. 2, et quamvis Imola contrarium senserit, ibidem tamen communiter doctrina

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to come to a decision the same way they do in the case of every other crime involving loss and harm, when they take into account the degree of loss and harm or the social standing of the individuals who have been killed; and he wanted them to think that such noxious workers of poisonous magic should be decapitated, just as any other murderer is. He did this, I say, so that they might not [merely] think, but understand how dreadful a crime it is to remove someone by poison, and [do so] with the help of an evil spirit. Therefore, he wanted all those guilty of this kind of crime to be punished by being burned. As for any of the other crimes which are usually attributed to witches [lamiis], he did not want to press the point, because he thought it was enough to persuade judges by means of the actual practice of Germany which was already standard at the time of Frederik and Maximilian i, and one should not imagine he was willing to detract from it by pursuing them in a secretive and covert fashion. Question 9 When the information being laid says that this or that individual has taken part in meetings of witches [sagarum], is mention of a specific time and place required, or is general information laid by more than one person, without this kind of detail, sufficient to warrant investigation and torture? Just as by common law, place and time must in ordinary circumstances be given in an accusation—not the day, but the month and year, (‘of documents’, Digest, ‘accusations’ [= 48.2.3 preface], and Bartolo [da Sasseferrato] on that passage, number 2, that is to say, the end of paragraph ‘of documents’ 2, question 8), because the deed is always punishable, not just because it was done on one particular day, (Bartolo, ‘where’, number 12.) This is also the situation in relation to the detailed investigation, because then the judge is undertaking the office of prosecutor, (Bartolo, Book 2, on ‘if publicly’, number 12, Digest, ‘Lex Julia on adulteries’ [= 48.5.2.5].) According to Angelo Gambiglioni (Aretino) and Felino [Maria Sandeo] on the chapter ‘in what way’, paragraph ‘he should’, concerning accusations, what [Bartolo] says is generally accepted; and, according to Angelo d’Ubaldi (?) on ‘indeed these things’, number 3, Codex, ‘accusations’ [= 9.2.7]; [Francesco] Bossi, Investigation, number 90; [Giulio] Claro, final paragraph of question 31, number 11. It is universal practice. Consequently, so that the accused can provide for his defence, during his examination he should also say which day it was and, (should the accused by any chance wish to do so), that he was somewhere else at the time. (See Bartolo, ‘the person who has been accused’, Digest, ‘public trials’, number 2 [= 48.1.5. preface]); and although [Gio-

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Bartholi obtonuit, Ias. in lib. 2 § si quis Ephesi D. de eo quod certo loco, Bossius sup. n. 92, Gigas De crimin. laes. Mai. tit. qualiter procedatur q. 3, Clarus q. 12. n. 6 et 9, Angelus et Augustin. in addit. ad Angel. in gloss. de anno praesente n. 2, Mascard. concl. 512, n. 3, Farinac. quaest. 1, n. 20. Iam iudex tamen quam accusator, si dicerent se diem ignorare, et id confirment Sacramento, excusabuntur: Clarus d. quaest. 12, n. 9. Immo tam necessarium est regulariter ut in accusatione et inquisitione speciali locus, annus ac mensis criminis inserantur, ut etiam parte non petente, ipso iure censeatur inquisitio aut accusatio nulla, ut pote deficiens in substantialibus: ita post Alex. et plurimos ex communi sententia Clarus d. n. 6, et Farinac. d. q. 1, n. 11 et 15. Quae ut certa sunt in criminibus non exceptis; ita mihi certum est etiam in exceptis optime facturum iudicem, ad hoc ut plenissime muneri suo satisfaciat; si factum sit huiusmodi cuius anuus et mensis ac locus a denominante exprimi non difficulter queat; si de his circumstantiis nominantem interroget, hoc tantum volui in disquisit. lib. 5, sect. 3, sub. lit. L. vers. tertio requiritur, ut nominans diligenter; non vero, quod si in crimine Magiae, maxime si plurium adsit nominatio, haec interrogatio et expressio loci ac temporis praetermissa fuerit, ideo inquisitionem nullam redderet. “Illis enim essentior, ut et Friburgenses, qui asserunt in criminibus exceptis praedictio solemnia, quoad additionem loci et temporis, non requiri”: gloss. in princ. verb. et instituendo Instit. de public. iudic., Bald. cap. 1, n. 20. Quib. mod. Feud. amit. Angel. de maleficat. vers. falsario. n. 37, vers. haec est quaedam inquisitio, Hippol. de Marsil., singul. 163, Ferrantes Garzareus inter cons. crimin. vol. 1. cons. 125, Menoch. cons. 100, n. 88 et 91, lib. 1, Ziberius Decian.

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vanni de] Imola thinks the opposite, Bartolo’s opinion on the same passage has generally obtained. (See Giasone [de Maino] on 2, paragraph ‘if someone from Ephesus’, Digest, ‘concerning what needs to be given in a particular place’ [= 13.4.4 preface]; [Francesco] Bossi, op.cit. supra, number 92; [Girolamo] Giganti, The Crime of Treason, chapter ‘in whatever way one proceeds’, question 3; Claro, question 12, numbers 6 and 9; Angelo and Agostino on an addition to Angelo, ‘the present year’, number 2; [Giuseppe] Mascardi, conclusion 512, number 3; and [Prospero] Farinacci, question 1, number 20.) But, now that the judge [is acting] as a prosecutor, if they were to say they did not know the day, and confirm it with an oath, they will be excused, (Claro, op.cit., question 12, number 9.) But it is so necessary that the place, year, and month of the crime be inserted into the record of the charge and the specific interrogation of the individual, in accordance with the rules, that, even if the party does not ask [for this to be done], the examination or charge be considered legally null and void if it lacks those details of substance. (Thus Claro, following Alessandro [Tartagni] and very many supporters of common opinion, op.cit., number 6 and Farinacci, op.cit., question 1, numbers 11 and 15.) Since this is certainly so in crimes which do not fall outwith the normal legal rules, I am quite sure that, in crimes which do fall outwith the normal legal rules, too, a judge will do very well to fulfil his duty if he asks the person bringing the charge about these particulars, provided the deed is of such a kind that the year, month, and place in which it happened can be given without difficulty. (This is all I meant in Investigations Book 5, section 3, under the letter L, at about ‘thirdly, it is required that the person naming names’.) But if the deed was done in connection with a crime of magic, especially if more than one person has been named, this questioning and an explicit mention of place and time must not be omitted, since that would mean the examination was rendered null and void. I agree, as do the scholars from Freiburg, with those who say that, in crimes which fall outwith the normal legal rules, a solemn declaration beforehand is not required with respect to adding place and time. See the gloss on the first words and ‘what is to be determined’, Institutes, ‘public courts’ [= 4.17], Baldo, chapter 1, number 20; ‘how a fief is lost’, [Libri Feudorum]; Angelo Gambiglioni (?), Harmful Magic, at about ‘with a false witness’, number 37; Ippolito de Marsili, Individual Cases, 163, at about ‘this is a particular examination’; Ferantes Garziareus in his Advice in Criminal Cases, Volume 1, advice 125;304 [Giacomo] Menochio Book 1, advice 100, numbers 88 and 91; Tiberio Deciani 304

Ferantes Garziareus is an elusive figure. Floruit sixteenth century. He is praised by two of his contemporaries, Andrea Fachinei and Giacomo Menochio for his outstanding scholarship and great learning.

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cons. 18, n. 22, vol. 1 dixi d. lib. 5, sect. 2 § Tertio requiritur ad formam, et hoc voluit unus pro parte adversa consulentium in scripto cuius initium; operae pretium videtur, hisce verbis. “Necesse non est omnes huiusmodi circumstantias a denunciatoribus indicari, praesertim quando huius rei impedimenta legitima adferuntur. Sufficit enim hoc casu si ex aliis tantum apparet, ex quibus iudicis animus moveri potest, vel quasi certo credat denunciantes vera dicere. Quod et probat, quia iudicis arbitrio (ait) relinquitur, utrum indicia ad torturam sint sufficientiam.” Sunt et aliae rationes pro hac decisione, quia quando idem crimen saepius, ordinarie, et quasi ex consuetudine patratur, locis maxime variis, et ut plurimum incertis vel incognitis, aliquando etiam ornatu toto loci ficto et praestigiis instructo, vix potest circumstantia loci et temporis certo exprimi, loci quidem propter patagium illud praestigiorum, temporis propter actuum frequentiam; accedit quod in his conventibus saepe inebriantur, quod omnia fanatico ritu peragantur, quibus rebus memoria facile perturbatur, | quoad locum et tempus, sed non tam facile quoad personas, quod docet quotidiana experientia. Videmus enim quod ebriosi licet compotores suos probe noverint, et eorum memores sint, temporis tamen et loci ubi symposium fuit, non recordentur. Sane quod frequentia et iteratio actuum memoriam confundat, testatur Bossius, De oppisit. contra test. n. 40, et quod in his criminibus quae iterari et frequentari solent, tempus et locus non sint de substantia, et ideo praedictarum circumstantiarum omissio non vitiet depositionem merito multi tenent: Felin. in cap. cum causam, n. 13, et seq. de test. Ioan. Crottus tractat. De test. part. 7, 142, Ioachim. Mynsing. cent. 2, observat. 20. Item quando agitur de probatione alicuius actus puta criminis aut possessionis aut alterius rei in genere, quae ex pluribus actibus deducitur (ut si quaeras, num aliquis sit concubinarius, usurarius, etc.) tunc testes singulares in circum-

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Volume 1, advice 18, number 22. I said this in Investigations Book 5, section 2, paragraph ‘thirdly, as far as the form is concerned, the requirement is,’ and this is what one of those seeking advice with regard to the opposite point of view meant in a written document which begins ‘the value of the task is,’ He says, ‘It is not necessary for those laying information to specify this kind of relevant particular, especially when legal impediments of this nature are adduced, because it is sufficient in this case if it merely makes an appearance from other sources which can influence the judge’s mind or make him more or less certain that those who are laying the information are telling the truth. The proof of this,’ he says, ‘is that it is left to the judge to decide whether the evidence is enough to warrant torture.’ There are also other reasons for this decision because, when this same crime is perpetrated quite frequently, in the ordinary course of events and, as it were, habitually, in places which are very different and, for the most part, vaguely or not well known, and sometimes, too, when the way the place has been furnished is entirely fictitious and has been done by conjuring-tricks, sometimes information about place and time can scarcely be given with any certainty—the place, for example, because it has been made glamorous by conjuring-tricks and the time because of the frequency with which the activities take place. As it happens, they are often drunk during these meetings and that everything is carried out in a frantically mad fashion, and in consequence their memory is easily confused when it comes to the place and time—but not so easily when it comes to the individuals [taking part], as daily experience tells us, because we notice that, although drunks know who their drinkingcompanions were and remember them perfectly well, they do not recall the time or the place of the booze-up. That frequent, repeated activities confuse the memory is well testified by [Egidio] Bossi, (‘the opposition to witnesses’, number 40), and that in crimes which people are in the habit of repeating and doing quite frequently, time and place are not matters of substance, and so many people quite reasonably think that omission of the foresaid circumstances will not vitiate their testimony. (Felino in the chapter, ‘since .... the reason’, number 13, and ff about testimony; [Giovanni] Crotto, Treatise on Witnesses, part 7, number 142; Joachim Mynsinger [von Frundeck], century 2, observation 20.)305 Likewise, when one is dealing with proving some action—the crime of seizure of possession of a person or property, for example—which one deduces from several actions, (such as if you ask whether someone is keeping a mistress, whether he is a money-lender, and so forth), then [the testimony of]

305

Joachim Mynsinger von Frundeck (1514–1588) was a Professor of Law at the University of Helmstedt. He wrote commentaries on Justinian.

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stantia loci et temporis recipiuntur: gloss. in. lib. ob carmen D. de testib., Covarr. a Leyva lib. 3, resolut. cap. 3, n. 5, Maschard. de probation. vol. 2, conclus. 856. Cur non etiam testes generales seu de solo crimine tali (quale est strigarum crimen quoad conventus) generaliter absque his circumstantiis deponentes admittantur in ordine ad torturam? Maschard. d. loco n. 17. Si obiicias cum quibusdam. lib. 3. D. de accusat. et lib. in causis, cap. cod. Respondetur dd. ll. in criminibus exceptis locum non habere, ut patet de crimine falsi: lib. ubi falsi cap. ad leg. Cornel. De fals. tenent hoc Bald. in cap. 1, in titul. quib. mod. feud. amitt. ex d. gloss. instit. de pub. indic. in princ. Purpurat, in repub. lib. edita. n. 54, cap. de edend. Cephal. cons. 304, n. 115, Rimin. Iun. cons. 18, sub. n. 72, Farinac. quaest. 1, n. 13, et alii supra citati vers. illis enim assentior. Et de crimine laesae Maiestatis hamanae, extravagan. ad reprimendum. ibi, super dicto crimine, et ibi Barthol. Item Gig. post Salic. et Praepos. in. d. titul. qualiter in crimin. laes. Maiesta proced. q. 10. Decian. cons. 18, n. 72, lib. 1, et inde ducto argumento de crimine laesae Maiestatis divinae, ut est haeresis, Angel. in Authen. Quomodo oportet Episc. § final et Angelus Aretin. in prax. d. v. haec est quaedam inquisitio. Unde ad crimen Magiae valida est consequentia, quod rarissime caret haeresi, aut Apostasia; et ipsa quoque crimen est successivum, et ideo solemnitas expressionis temporis et loci in eo non exigitur, ne quoad mensem quidem aut annum, ut bene Farinacius d. n. 17, cuius doctrina vera est, sive id Barthol. voluerit in d. lib. libellorum. n. 10 et 16, sive potius contrarium, ut non male quidam contendunt.

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individual witnesses is taken in connection with the circumstance of place and time. (See the gloss on ‘because of a spell’, Digest, ‘witnesses’ [= 22.5.21 preface]; [Diego de] Covarrubias y Leyva, Resolutions Book 3, chapter 3, number 5; [Giuseppe] Mascardi, Proofs Volume 2, conclusion 856.) Why should not even general witnesses, or witnesses giving general evidence confined to this particular crime—that is the crime of witches [strigarum]—with regard to their meetings, but without the circumstantial details I have been talking about, qualify in turn for torture? (Mascardi, op.cit., number 17.) If you raise the objection, as some people do, of 3 Digest, ‘accusations’ [= 48.2.3.3] and ‘in criminal cases’, Codex, ‘accusations’ [= 9.2.16 preface], the scholars I was talking about answer that this has no place in crimes which fall outwith the normal legal rules, as is clear from the crime of counterfeiting. (‘When counterfeiting’, Codex, ‘Lex Cornelia on counterfeiting’ [= 9.22.22 preface].) Baldo agrees with this in chapter 1 under the heading ‘how a fief is lost’, relying on the said gloss, Institutes ‘public courts’ [= 4.17] at the beginning. So do Gianfrancesco Porporato on the state, number 54, ‘an action which has been begun’, Codex, ‘bringing an action’ [= 2.1.3]; [Giovanni] Cefalo, advice 304, number 115; Riminaldi the Younger, advice 18, under number 72; Farinacci, question 1, number 13, and the others cited above, and I agree with them.306 On the crime of treason against a human being, see the supplement to [the Imperial decree] ‘in order to repress’, where it talks about the said crime, and Bartolo [da Sassoferrato’s] commentary on it. Likewise, [Girolamo] Gigante, following [Bartolomeo da] Saliceto and the argument on the heading ‘how to proceed in the crime of treason’, question 10; [Tiberio] Deciani Book 1, advice 18, number 72; and, leading on from there, the argument relating to the crime of treason against God, which is what heresy is, Angelo on the authentic [New Constitutions of Justinian], ‘how bishops must’, last paragraph, and Angelo [Gambiglioni], Practice, ‘this is a particular examination’. Consequently, as far as the crime of magic is concerned, it is a valid inference that heresy or apostasy are very rarely missing from it. This is also a crime which is carried out on successive occasions, and therefore the formality of stipulating time and place is not required as far as it is concerned—not even the month or year, as Farinacci explains very well in op.cit., number 17. What he says is true, whether Bartolo [da Sassoferrato] (in op.cit., ‘of essays’, numbers 10 and 16), likes it or prefers the opposite, as a number of people, with some justification, maintain.

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Gianfrancesco Porporato de Pinerolio (1485–1544) published commentaries on the first part of the Codex in 1531. Giovanni Cefalo (1511–1580) published his Legal Advice and Answers (‘Consilia et Responsa’) in 1572.

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Obiicitur nostrae sententiae constitutio Carolina art. 31, cond. 2. Respondeo: Eam iubere, ut interrogentur de omnibus circumstantiis necessariis, et non nimis, difficilibus (nam hae pro impossibilibus habentur) denunciantibus, quales de conventibus videntur istae. Nec enim credendus est optimus et prudentis. Imperator voluisse, iudicia retardare, denunciantes ad moraliter impossibilia, iudices vero ad superflua cogere, cum tanto reip. damno. Difficilior obiectio est, non posse reis denunciatis defensionem tolli, quae iuris naturalis est; ea autem in eo hic consistit, ut delati possint probare suum alibi (ut vocant) quod facere nequeunt, nisi locus et tempus conventuum in quibus dicuntur visae specificetur. Respondeo: In hoc nostro casu exceptionem istam frivolam iudican|dam, quod ut intelligatur, paulo fusuis hoc argumentum et solutio debent explicari. Qui contendunt defensionem hanc necessariam, quam vocant defensionem negativae probationem; vel loquuntur de defensione in genere, vel tantum de defensione iuris positivi; utrovis modo loquantur, vitium est in ratiocinatione et captio; hoc ut liquido appareat, suppono ut verissimum ex aurea Baldi doctrina, defensionem iudicialem esse triplicem, unam iuris naturalis, aliam iurisgentium, tertiam iuris positivi; seu, quod in idem recidit, duplicem, unam iuris divini, alteram iuris humani; et illam quae iuris divini est, seu naturalis aut gentium, a nullo Principum seu hominum tolli posse, quae iuris humani est seu positivi, ab illis tolli posse, qui hoc iure sunt superiores ac potiores: haec fuse Bald. Tractat. De statutis a n. 75, Medices Tract. de fortuitis casibus q. 8, a n. 9, Zanchinus Hugolin. Tract. de haere. in prin. Et sic concilianda pugna dd. negantium defensionem reis adimi posse, et aientium id nonnumquam Principi licere.

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An objection to my opinion is made, [based on] article 31, condition 2 of the Carolina Code. My answer is that the Code orders that questions be asked about every relevant circumstance and not about those which lay evidence which is excessively difficult [to believe] because they are considered to be impossible—the circumstances relating to meetings, for example. After all, one cannot believe that the most worthy Emperor, a man of foresight and experience, wanted to impede trials, with such great harm to the state, while people were laying information about things which are morally impossible, and to compel judges [to deal with their] extravagances. A more troublesome objection is that it is not possible for a defence based on natural law to be taken away from accused persons who have had information laid against them. But in this case, it does hold firm, provided those who have been delated can prove their ‘alibi’, (as they call it), which is something they cannot do unless the place and time of the meetings at which they were seen are specified. My answer is that in the case we are discussing, this restriction must be regarded as frivolous, and for this to be understood, I must explain this argument and the answer to it at somewhat greater length. Those who maintain that this defence, (which they call the defensive proof of a negative), is indispensable, are either talking about defence in general, or simply about a defence based on man-made law. But, whichever one they are talking about, there is a fault and a trap in their reasoning. I suggest, as something which is very true and based on Baldo’s important principle, that there are three kinds of judicial defence, one based on natural law, one based on the law of nations, and one based on man-made law: or, (which amounts to the same thing), that there are two kinds, one based on divine law, and the other based on human law, and that the one based on divine law, (or natural law, or the law of nations), cannot be taken away by any prince or human being. That which is based on human or man-made law, however, can be taken away by those who, by this law, occupy a higher social position and are more powerful. (Baldo discusses this at length in his treatise on statutes, from number 75 onwards, as do [Sebastiano] Medice in his treatise on accidental occurrences, question 8, from number 9, and Zanchino Ugolini at the beginning of his treatise on heretics.)307 This is how one can settle the controversy between scholars who say that accused persons cannot be deprived of a defence, and those who say it is sometimes permissible for the prince to remove it.

307

Sebastiano Medice (1500–1595) was a jurist and an Apostolic Protonotary. He published his treatise in 1578. Zanchino Ugolini (died 1340) wrote his treatise on heretics in about 1330.

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Hoc posito, quod commune ac certum est tota dissentientium ratio in hoc Sylogismo concluditur: Reis non est tollenda defensio; Sed prabatio negativae est defensio: Erga reis tolli non potest. et subdunt: Tolleretur autem denunciatis negativae probatio, si non esset necessaria expressio loci et temporis in denunciatione ista: Ergo non licet illas circumstantias omittere; et si sint omissa, nullius pretii futura denunciatio. Respondeo: Vel nihil conclude contra nos universam argumentationem, vel falsam esse maiorem et falsum concludi ex una praemissarum falsa. Nihil concludit, si maior est particularis, idem, quod, Quaedam defensio non est tollenda; tunc enim negaretur probatio negativa esse illa quae non sit tollenda, sed aliqua alia; et sic nihil in proposito concluderetur. Falsa autem foret maior si sit universalis, significans quod Nulla defensio rei tolli possit. Nam defensiones iuris positivi ex causa tolli possunt, et frivolae omnes tolli debent. Si res pondeant se maiorem restringere ad omnes quae sunt iuris divini, seu naturalis aut gentium, tunc negatur talis esse ista probatio negativae, quia est iuris mere positivi; pertinet enim ad modum defensionis, qui est huius iuris, licet ipsa defensio secundum se sit iuris divini, ideo receptum est axioma; modum defensionis, non modo per Principem, sed per statuta quoque civitarum tolli posse: Bald. et Medices sup. Barbat. Tract. de Cardin. legato a latere, par. 2, q. 4, n. 3, Quintilianus Mendoz. Tract. de inhibit. q. 71, n. 10, et Redoanus Tract. de spoliis Eccles. q. 13, n. 10, et multis Farinacius, q. 39, n. 23, in fin. Et quod

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That said, what is generally true and certain is that the entire argument of those who disagree is contained in the following syllogism. The accused should not have their defence taken away. But their defence involves proving a negative. This is why it cannot be taken away from the accused. They also add: But proving a negative would be taking away from those against whom information has been laid, if specifying place and time were not a necessary part of that denunciation. Therefore, it is not permissible for it to leave out those circumstances, and if they are left out, the denunciation will be worthless. My answer is that either the way everyone argues the proof comes to no conclusion, which contradicts what I have said, or the major premise is false, and the conclusion is false because one of the premises is false. It comes to no conclusion if the major premise is partial and likewise [if it concludes] that ‘the defence should not be taken away’, because under those circumstances, it would be said that a negative proof is not one which can be taken away, but is a different kind of proof, and thus no conclusion could be reached in the [syllogism’s first] premise. But the major premise would be false if it were universally applied, meaning that ‘no defence put up by the accused can be taken away’, because defences provided under man-made law can be taken away, and all frivolous [defences] ought to be taken away. If their answer is that they are restricting the major premise to all [defences] provided by divine law, or natural law, or the law of nations, one denies that this proof of a negative is that kind of proof because it is provided simply by man-made law, since it relates to a means of defence which is provided by this law, even though the actual defence, according to itself, is provided by divine law, and therefore the principle has been accepted that this means of defence can be taken away not only by the prince, but also by city-statute. (Baldo and Medice on [Andreas de] Barbatia, Treatise on Cardinals who are Legates a Latere Part 2, question 4, number 3; Quintiliano Mandosi, Treatise on Points of Law, question 71, number 10; and [Guglielmo] Rodano, Treatise on the Church’s Right to Spoils, question 13, number 10; and many others in Farinacci, question 39, at

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ordinaria etiam potestate in criminalibus ex iusta causa ipsamet iuris positivi defensio a iudicibus tolli possit regulariter, et id saepe factum docent non pauci: Farinac. ubi sup. n. 24 et 144, et n. 102, et 107, Farinac. vivius vol. 2, commu. opinion. opinione 717, Menchasa. cap. 36, Illustr. q. et cum afflicto Baiardus addit. ad Clarum d. § fin. q. 49, n. 54. Qua de re nihil affirmo vel disputo: id tantum quod mihi sufficit, contendo iudices supremos, qui auctoritate Principis iudicant, tunc posse iuris positivi defensiones adimere, quando frivolae sunt; tales autem censeri, quando tantum viden|tur utiles protelando iudicio, ne tam cito lis ad exitum perducatur, nec ad summam seu liberationem reo sunt profuturae. Huiusmodi, quae reum non relevarent, defensiones posse iudicem tollere, traditum ab Alexand. Bursato et Bossio, leges apud Farinac. d. quaest. 39, n. 77 et 78. Num. vero 79 non reprehendit hanc illorum sententiam, sed quod iidem iudicibus ad deceptionem reorum viam aperirent, dicendo reum interrogatum debere exprimere qua defensione uti vellet, ut sic iudex postea hoc praetextu exprimentem eluderet; id est quod merito reprehendit. Etenim vir prudens doctusque ignorare minime potuit, defensiones, quae reo non forent utiles, esse frivolas, et proinde iudici non curandas: Vitalis de Camban. Tract. de clausulis. n. 3, vers. nil novari, ex lib. ult. de procurat. Hanc vero defensionem, quam adversarii contendunt tolli non posse, esse de hoc frivolarum numero probatur; primo, quia cum negativa, quae non cadit sub censum sit plane improbabilis,

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the end of number 23).308 [It has also been accepted] that, even with ordinary power in criminal cases, this defence provided by man-made law can regularly be taken away by judges for a good reason, and not a few people say this has often been done. (Farinacci, op.cit. supra, numbers 24 and 144, and numbers 102 and 107; Francisco Vivio, Common Opinions Volume 2, opinion 717; [Fernando Vazquez de] Menchaca, Well-Known Controversies, chapter 36, which [Giambattista] Baiardi adds, along with ‘the person afflicted’ to [his additions to] Claro, final paragraph of question 49, number 54.)309 I claim and dispute nothing with regard to this matter. I maintain only this—and this is enough for me—that the highest judges who judge by the authority of their prince are able, under those circumstances, to remove defences provided by man-made law when these are frivolous, and they are considered to be such when they appear to be useful only for protracting the trial so that the dispute cannot be brought to a rapid conclusion, and when they are not going to benefit the accused with regard to his costs and liberty. A judge can take away defences of this kind which do not relieve the accused, as is recorded by Alessandro [Tartagni], [Francesco] Borsati, and [Egidio] Bossi. You will read them in Farinacci, op.cit., question 39, numbers 77 and 78. Number 79 does not find fault with their opinion, but it does quite rightly find fault with them because they would open the way for judges to deceive the accused by saying that, while the accused was under interrogation, he should specify which defence he wanted to use. This would enable the judge to deceive him later on by using this as an excuse. Moreover, that far-sighted and learned man could not have been completely unaware that defences which would not be useful to the accused are frivolous and in consequence can be of no interest to the judge. (Vitale de Cambanis, Treatise on Specific Legal Provisions, number 3 at about ‘nothing is changed’, from the final passage about the procurator.)310 But it is proved that this defence, which objectors maintain cannot be taken away, is counted among those considered to be frivolous, first because when a negative does not come within the purview of any of the five senses, it is clearly unprovable to such an extent that it renders the witness sus308

309

310

Quintiliano Mandosi (1514–1593/4) published this treatise in 1581. Guglielmo Rodano (died 1573) was a canon lawyer. His treatise was published in Rome in 1568 and 1569. The ius spolii was the claim, not universally recognised, of the Church to seize the personal property of clerics who died intestate. Francisco Vivio (1532–1616) published Groves of Common Opinions of Doctors of Canon and Civil Law in 1567. Fernando Vásquez de Menchaca (1512–1569) published Three Books of Well-Known Controversies in 1564. Vitale de Cambanis, (floruit mid fifteenth century). He was a Doctor of Canon and Civil Law and, at one point, Vice Proto-notary of the Kingdom of Sicily. His treatise was printed in Naples in 1478.

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adeo, ut reddat testem de falso suspectum: Curtius De testib. n. 53, Herculan. Tract. de negativa probanda n. 124. ad seqq. Nos autem hic versemur in probatione intuitiva, contra quam negativa non admittitur, nisi sit loco et tempore coartata (Sic ex Baldo Casonus Tract. de malefic. cap. 6, n. 6). Quia non potest talis negativa probari, nisi per contrariam intuitivam probantem affirmative, quod illo tempore in alio tali vel tali loco illam personam viderint (Sic Herculan. sup. n. 152, 154 et 246 seq.): inde consequitur in casu chorearum et conventus, in quo plerique inculpantes nec loco nec tempore suam denunciationem coartarunt, non posse probabilem esse istam negativae contrariae probationem, quando denunciantes sunt mortui, et proinde non possunt illas circumstantias addere, quibus contradicens negativa per contrarias circumstantias stabiliatur. Deinde versamur in crimine successivo, in quo non seguitur, Petrus tali die non interfuit choreae: ergo nec aliis diebus, nam depositio Petrus interfuit choreis generalior est incusatus, quam ut possit tempore hoc vel illo coartari, nec contrarium, magis videtur probari, quam si de haeresi accusatus, quia concionibus interesse visus fuit, probet se non esse haereticum, quia tali vel tali die ad haereticorum concionem non accesserit; fieri enim potest quod alio tempore accesserit: Vide Menoch. d. cons. 100, n. 92. Tertio in nostro casu ut contra affirmantem intuitivam consideratione digna sit negativa indirecta de visu, debet ea huiusmodi esse, in qua constet de negativa deponentes illi loco semper praesentes fuisse et vidisse, et audivisse, et fieri non potuisse, ut visu vel auditu fallerentur (colligitur ex Mascar. vol. 2 De probat. concl. 1091, n. 9). Quia necessarium est ut ex negativae indirectae probatione non suspicio tantum, sed scientia gignatur, ut per illam affirmativa directa de visu elidatur; tanta vero certitudo, in praesenti negotio nullo modo potest haberi. Nam strigiportia et conventicula lamiarum fiunt

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pect of telling lies. ([Francesco] Corti, Witnesses, number 53 and [Francesco] Ercolani, Treatise on Proving a Negative, number 124 ff.)311 But here let me deal with proof which has been arrived at intuitively, against which a negative is not admitted in evidence unless it is narrowed down by time and place. (This is what [Francesco] Casoni says, relying on Baldo, in his treatise on harmful magic, chapter 6, number 6.) The reason is that a negative such as this cannot be proved except by means of an opposite which has been arrived at intuitively and proves positively that [witnesses] saw the person they mentioned at the time they mentioned in such and such a place. (See Ercolani, op.cit., supra, numbers 152, 154, and 246ff.) Consequently, it follows that, in the case of dances and a meeting, when those making the accusation do not keep their denunciation narrowed down by mentioning place or time, the proof of a contrary negative cannot be provable when those laying the information are dead and therefore cannot add those circumstances whereby the opposing negative is strengthened by [mention of the] circumstances which contradict it. Secondly, let me deal with crime committed on successive occasions. Here it does not follow that (a) ‘Peter’ did not take part in a dance on such and such a day, (b) therefore he did not take part in one on other days. The accusation is too general for one to be able to narrow it down to this day or that, and the opposite does not seem to be any more proven because one can narrow it down to this time or that. He was seen to be present at meetings. Let him prove he is not a heretic on the grounds that he did not attend a meeting of heretics on such and such a day. It is perfectly possible he attended it on another occasion. (See [Giacomo] Menochio, op.cit., advice 100, number 92.) Thirdly, in the case we are dealing with, an indirect negative relating to what was seen, and which contradicts the person maintaining an affirmative, is worthy of consideration. This should be the kind of [statement] on which, in relation to the negative, it can be agreed that the people making the accusation were present in that place all the time, and saw and heard [what they say they did], and could not have been mistaken about what they saw and heard—this is taken from [Giuseppe] Mascardi, Proofs Volume 2, at the end of 1091, number 9—because it is essential that, by proving an indirect negative, not merely suspicion, but certain knowledge, be produced so that a direct affirmative about what was seen can be elicited from it. Such a great certainty, however, cannot be had at all in the matter we are dealing with here. This is because the transportations and meetings 311

Francesco Corti the Elder (died 1495) was a jurist from Pavia. His book on witnesses was published in 1504. Francesco Ercolani (1541–1569) published this treatise in 1564. Francesco Casoni (1500–1564) who is quoted in the next sentence, published his treatise on premeditated harmful magic in Venice in 1557.

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nocturno tempore, cum familia tota atque adeo mariti in lecto iacentes eodem, daemonis saepenumero arte ac ope, somno profundissimo, et morti simillimo compositi tenentur, quo ergo pacto tales dormitantii de visu poterunt testari, et dicere se tota illa nocte vigilasse? Casu id vix potest accidere; ex curiositate, numquam, nisi praecedat suspicio, quam hic adversarii abnuunt, si faterentur, | haec ipso foret pro indicio novo iudici haud aspernando. Quarto solent lamiae, cum exeunt ad conventus domum suam fascinationibus implere, et vicarium daemonem domi in mariti thalamo supponere loco suo, quod multis exemplis confirmant Binsfeldius et Remigius, et alii, et non infrequens esse constat, quod si ipsae nunnumquam domi remaneant, comparent in conventu per substitutum, ut faciebat Doctor Fleatencis consiliarius Trevericus, et propterea consequeretus, ego illam tali nocte vidi domi suae; ergo non fuit visa in choreis. Immo potius, quia in choreis visa in substituto, seu repraesentata; merito iudex colligit se ad torturam debere procedere, nec negativas probationes tales sibi expectandas, cum non constet in nocentes ullos solere repraesentari. Equidem habeo pro manifesto, quod si probatio ista negativae in hoc casu admitteretur, et complices de choreis semper in denunciatione ad locum et tempus coarctarentur, idque ut sabstantiale denunciationi necessarium iudicetur; fere omnem aditum obstrui quaesitoribus ad veritatem inveniendam. Nam vix ulli complices poterunt satis certo illas circumstantias exprimere, et probare; neque per hoc eo magis iudices de innocentia denunciatorum fient certiores; cacodaemoni vero fuerit facillimum officiis et fascinatoriis praestigiis, quandocumque ei collibebit, per delusos iis testes, mancipia sua torturae eripere, ad summam Dei Optim. Maxim. iniuriam, ad iustitiae dedecus, et totius humani generis exitium.

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of witches [lamiarum] happen at night-time when the whole house, (and especially the husbands), are lying in bed, all put into a very deep sleep, like that of death, and kept there, often as the result of an evil spirit’s magical power. Consequently, how will such deep sleepers be able to give evidence about what they have seen, and say they were awake the whole night? This can scarcely happen by accident, and never because of curiosity, unless it is suspected in advance—which objectors dismiss in this case—that if they were to confess this, the judge might consider it a novel piece of evidence he should not reject. Fourthly, when witches [lamiae] leave home for their meetings, they are in the habit of filling it with evil glances from their eyes [ fascinationibus] and put an evil spirit as a substitute for them in their husband’s bed, as Binsfeld, Rémy, and others confirm with many examples. It is also agreed that, on quite a number of occasions, if they themselves sometimes remain at home, they appear at the meeting via a substitute, (as Dr Flade, the town councillor of Trier, used to do), and in consequence, ‘I saw her at home on such and such a night, therefore she was not seen [taking part] in the dances,’ would not be a logical deduction. Indeed, it is rather the case that she was seen taking part in the dances in substitute or represented form, and the judge quite rightly concludes that he should proceed to torture. and does not need negative proofs of this sort, since it is agreed that no innocent people are in the habit of being represented at those meetings. Indeed, I take it as obvious that if this proof of a negative were admitted [as evidence] in this case, and accomplices were always pressed about time and place when they laid evidence, and this were to be judged a matter of substance when evidence was being laid, investigators would find that almost every avenue to discovering the truth was blocked. This is because scarcely any accomplices will be able to give and prove those circumstances with any certainty. So, as a result, judges will not be better informed about the innocence of those who have been denounced, and it will be very easy for an evil spirit to snatch his slaves from torture whenever he wants by using conjuringtricks of the evil eye [ fascinatoriis] and the good offices of witnesses whom he has deluded by these means, to very great injury to Almighty God, disgrace to justice, and the destruction of the whole human race.

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quaestio x An in hoc crimine vel aliis exceptis, testes singulares in circumstantiis, dummodo concordent in effectu, substantia et fine, admittantur, et an huiusmodi testes singulares, quando plures sunt faciant indicium ad torturam? Duae sunt questionis partes; ad quarum resolutionem praemitto, dd. sententias adeo hac in materia fidei, quam merentur testes singulares, esse varias, ut vix sit operae pretium eas recensere, legatur: Anton. Gabrielius lib. 1, commen. opin. tit. de test. concl. 2 et Ios. Mascard. d. vol. 2, concl. 856, Gottus de test. part. 7, tit. de forma in test. exam. observat. n. 131, Simancan. Cath. instit. tit. 64. n. 61 et seq. Suppono, quod omnes concedunt, testem singularem dici duobus modis, primo stricte, proprie ac absolute cum quo ad eundem actum et personam nullus alius testis concurrit quoad effectum, substantiam et finem, utpote quia quod alii deponant non subordinatur ad id quod alter deposuit, seu tendit ad alium effectum, et finem. Secundo laxius, et minus proprie et secundum quid vocari singularem, quia alii non conveniunt cum eo in quibusdam circumstantiis, tamen conveniunt in substantia criminis et tendunt ad eumdem effectum et finem probandum. Quoad primi generis singularitatem probabilior mihi videtur sententia ad condamnationem illos non sufficere, ad probandum crimen aliquod in specie, ut unum homicidium, unum raptum, item aliquem fuisse in isto conventu, etc.: iuxta Clarum § fin. q. 53, sub n. 18, Felin. in cap. licet. 2, col. 5, de test., Gigan. de crim. laes. maiest. tit. quomodo et per quos q. 8, Minsi. cent. 3, observ. 76.

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Question 10 In this crime, or in other crimes which fall outwith the normal legal rules, should single witnesses be granted a hearing as long as, in regard to the circumstances, they agree on what was actually done, the substantial details and purpose [of the crime]; and are single witnesses of this kind sufficient, when there is more than one of them, to constitute evidence justifying torture? There are two parts to this question, and in order to resolve them, I submit that the opinions of scholars in relation to the subject of the trust single witnesses deserve are so varied, that it is scarcely worth my while to make the effort to review them. They can be read in Antonio Gabrieli, Common Conclusions Book 1, heading ‘witnesses’, conclusion 2; Giuseppe Mascardi, Volume 2, conclusion 856; Gottus, Witnesses Part 7, heading, ‘the form to be observed in the examination of witnesses’, number 131; [Diego de] Simancas, Catholic Institutions, heading 64, number 61ff.312 I suggest—and this is something with which everyone agrees—that it can be said there are two kinds of single witness. In the first case, he is strictly, accurately, and without qualification called ‘single’ when no other witness agrees with him about the same action and person in respect of the substance of what was done, and the purpose for which it was done, in as much as what other [witnesses] say while giving their evidence is not treated as of lesser account than what he has said, or tends to be a different account of what was done and the purpose for which it was done. In the second case, according to which he is more loosely and less correctly called ‘singular’, other [witnesses] do not agree with him in relation to the circumstances but do agree with him in relation to the substantial details of the crime and tend [to agree with him] when it comes to proving the same account of the action and its purpose. As for the first kind of single witness, I think the more demonstrable opinion is that [their evidence] is not sufficient to find the people we are dealing with guilty of any crime in particular—a murder, for example, or a rape—and likewise to prove that someone was at the particular meeting mentioned, etc. (See [Giulio] Claro, the final paragraph of question 53, under number 18; [Maria Sandeo] Felino in chapter 2, ‘it is permissible’, column 5 on witnesses; [Girolamo] Giganti, The Crime of Treason, heading ‘how and by whom’; [Joachim] 312

Antonio Gabrieli (died 1555) came from a noble Roman family. His treatise appears to have been published post mortem in 1570. It is possible that ‘Gottus’ is a mis-reading of ‘Crottus’, i.e. Giovanni Crotto who was a mid-sixteenth-century jurist and contributed to a treatise on witnesses in 1569.

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Valde quoque probabile est, nec in crimine in genere probando illos admittendos in ordine ad condemnationem, quia hanc esse communem multi censent et defendunt post Salic. in lib. Testium n. 16, cap. de test., Ion. de Amicis et alios apud Clar. | et Pegnam sup. in ver. ego quantum v.g. si depognant aliquem esse usurarium, hareticum, etc. Et quoad istam singularitatem strictam, et quoad omnia idem censeo quoad torturam. De testibus vero secundi generis, invenio controverti quoad condemnationem, et esse qui negent istos sufficere etiam in exceptis et atrocissimis; quod voluerunt multi citati, et probati a Claro et Pegna supr. Ego tamen sequor contrariae sententiae defensores, nempe in criminibus huius modi, quae sunt iterabilia, testes de diversis actibus deponentes, qui ad idem crimen probandum tendunt, haberi pro singularibus non ut obstent, sed ut accumulent et invicem iuvent; et ideo non esse repellendos praetextu singularitatis istius impropriae, hoc volunt in crimine perduellionis et haeresis, et proinde Magiae quoque, argum. lib. qui sententiam cap. de poenit. Doctores plures contrariis: ut Iacob. Butrigarius, in lib. Arriani cap. de haeret. Salic. in lib. quicumque cap. cod. Ioan. Anan. in cap. 1, etiam eo. n. 7, Corn. cons. 91, n. 42, lib. 1, cons. 34, col. 1, cons. 247, col. 6, lib. 2, Horin. Iun. cons. 99, lib. 2, Marsil. cons. 1, Aymon. cons. 73, n. 72, cons. 78, n. 6, cons. 267, n. 3, et de antiq. tempor. in 4, part. n. 157, Rimin. Iun. latissime Cons. 7, per totum. Item Pet. Ancharan. cons. 277, in dub. 2, Boss. in Tit. de crim. laes. M test. n. 117, Gigas in trac. de eodem ubi supr. q. 8. Immo et in crimine impudicitiae quod non est exceptum, idem volunt Bald. cons. 207, vol. 4, Alexan. cons. 13, col. ult. in 7, Alban. cons. 25, Zazius cons. 11, n. 15, lib.

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Mynsinger, century 3, observation 76.) It is also very likely, (but not to prove a crime in a general sense), that they should be admitted to give evidence in turn in order to prove the accused guilty—because many people think this is common [practice] and defend it, following [Bartolomeo da] Saliceto on ‘of witnesses’ number 16, Codex, ‘witnesses’ [= 4.20.18 preface]; Giovanni de Amicis and others in Claro;313 and [Luca de] Penna, op.cit., supra at ‘I, however much’—for example, if they accuse someone of being a money-lender, a heretic, etc. As for the strict sense of ‘single’, and everything else, I think the same thing applies in respect of torture. But when it comes to the second kind of witness, I find there is disagreement in relation to a guilty verdict, and that there are those who say that these people are not sufficient, even in the most dreadful crimes which fall outwith the normal legal rules, because many of those I have cited have said so and have been examined by Claro and Penna [in the works cited] above. I, however, follow those who defend the opposite opinion, certainly in regard to crimes of this kind, which people can commit more than once. Witnesses who give evidence about various activities and who aim to prove the same crime are considered as single witnesses, not to obstruct [the trial], but to amass [evidence] and be of assistance at the same time. Consequently, they should not be rejected on the grounds that they are not really single [witnesses]. People think this should apply in the crime of treason and heresy and therefore of magic as well, (argument ‘those who .... opinion’, Codex, ‘penalties,’ [= 9.47.16].) Several scholars take the opposite point of view, such as Jacopo Bottigari on ‘Arians’, Codex, ‘heretics’, [= 1.5.5 preface]; Saliceto on ‘whoever’, Codex, same place; Giovanni D’Anania in chapter 1 and, also there, number 7; Cornelius Book 1, advice 91, number 42 and Book 2, advice 34, column 1, and advice 247, column 6; [Bartolomeo] Socini the younger Book 2, advice 99; [Ippolito] Marsili, advice 1; Aimone [Cravetta], advice 73, number 72; advice 7, number 6; advice 267, number 3, and Ancient Times Part 4, number 157; Riminaldi the younger, very broadly the whole of advice 7.314 Likewise, Pietro d’Ancarano, advice 277, in doubt 2; Bossi, under the heading ‘treason’, number 117; [Girolamo] Giganti in his treatise on the same subject, op.cit., supra, question 8. Quite so, and in respect of the crime of lewdness, which is not one which falls outwith the normal legal rules, Baldo is of the same opinion, Volume 4, advice 207, as is Alessandro [Tartagni], advice 13, final column in 7; Albanus, advice 25;315 [Ulrich]

313 314 315

Giovanni de Amicis (1463–1520) was a jurist who taught law in Naples. Ippolito Riminaldi (1520–1589) published his Advice or Replies in 1581. Giovanni Jeronimo Albani (1509–1591) published his Discussions and Advice in 1553.

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2, Bertazzol. cons. 20, n. 16, et multos accumulans Ioann. Maria Monticella. de testib. tit. impugnatio testis quia unius col. 5. Ratio est quia Iudex ex qualitate personarum et facti potest, si videatur, testibus singularibus credere: lib. 3 § tu magis D. de testibus. Probationes enim iudicum causa fiunt, lib. quingenta D. de probat. Ideo ad iudicum arbitrio dependet, quae sufficiant, quae non, ut iis fidem dent, vel negent: Castrens. in lib. Lucius D. de his qui noct. in fam. et in lib. admonendi D. de iureiur. Severin. ibi fol. 10. col. 2, Marzil. cons. 1, n. 7 et in lib. 1 § si quis ultro. n. 40 D. de quaest. Socinus Iun. cons. 32, n. 10 et cons. 90 et col. 4, lib. 2, Blancus. de iudic. n. 367, Bossius eod. tit. n. 23, Romin. Iun. d. cons. 7, n. 15, Gabriel de testibus concl. 2, limit. 2. Si ergo haec procedunt in ordine ad condemnationem quoad poenam saltem extraordinariam, ut bene Covarr. lib. 3, resol. cap. 3, n. 3, et Simancas d. tit. 64, n. 75. Quanto magis hoc tenendum de his secundi generis testibus in ordine ad torturam, per text. et ibi dd. in lib. qui sententiam D. de poenit. Grammat. decis. 34, n. 30, post Alexan. et alios quos refert. item Gigas d. tit. quomodo et per quos q. 25, Bertazzol. cons. 213, n. 7 et 8. Quia testes reiecti, eo quod non sufficiant ad condemnationem, solent sufficere ad torturam: Barth. in. lib. 1 § quaest. D. de quaest. cum aliis quos refert Gramm. supr. n. 51. Quando deponunt de ipso facto, aut de indiciis propinquis et non remotiis a facto; nam et remotis, non admittuntur nisi forte omni exceptione maiores: Sic post alios Rimin. Iun. cons. 361, n. 32, et 33, et Farinac. d. q. 37, n. 18 et 19 et quaest. 56, n. 73, et sequ.

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Zasius Book 2, advice 11, number 15;316 [Bartolomeo] Bertazzoli, advice 20, number 16; and the many writers amassed by Giovanni Maria Monticelli, Witnesses, under the heading ‘a witness’s attack because .... of one’ column 5. The reason is that a judge can believe single witnesses, if he thinks he is right to do so, because of the nature of the persons involved and the crime which has been committed—Book 3, ‘you more’, Digest, ‘witnesses’ [= 22.5]—because proofs become a matter for judges, (‘five hundred’, Digest, ‘proofs’ [= 22.3.12].) Therefore, what is sufficient and what is not, and whether to trust it or not, depends on the judge’s decision. ([Paolo di] Castro on ‘Lucius’, Digest, ‘those who are known for disreputability’ [= 3.2.21] and ‘we should be warned’, Digest, ‘swearing an oath’ [= 12.2.31]; Severinus, same passages, folio 10, column 2; Marsili, advice 1, number 7 and on Book 1, paragraph ‘if someone beyond’, number 40, Digest, ‘investigations’ [= 48.18.1.27]; Socini the younger Book 2, advice 32, number 10 and advice 90, and column 4; [Marco Antonio] Bianchi, Circumstantial Evidence, number 367; [Egidio] Bossi, same title, number 23; Riminaldi the younger, advice 7, number 15; [Antonio] Gabrieli on witnesses, conclusion 2, limitation 2.) If, therefore, they proceed in turn to find them guilty, at least as far as extraordinary punishment is concerned, (as [Diego de] Covarrubias in Resolutions Book 3, chapter 3, number 3 and [Diego de] Simancas in op.cit. supra, heading 64, number 75, explain very well), how much more should this be the case when it comes to witnesses of the second type in turn with regard to torture. (See the text and the scholars who comment on it, ‘who .... opinion’, Digest, ‘penalties’ [= Codex 9.47.16]; [Tommaso] Grammatico, decision 34, number 30, following Alessandro [Tartagni] and others to whom he refers; likewise [Girolamo] Giganti, op.cit., heading ‘how and by whom’, question 25; [Bartolomeo] Bertazzoli, advice 213, numbers 7 and 8.) Because witnesses have been rejected on the grounds that [their evidence] is not sufficient to warrant a guilty verdict, are usually enough to warrant torture, Bartolo [da Sassoferrato] in his first paragraph on ‘trust in an investigation’ (?), Digest, ‘investigations’ [= 48.18.1.23], along with others to whom Grammatico refers, supra number 51, say they are usually enough to warrant torture. When they give evidence about the deed itself, or about proofs which have a direct bearing on it and are not unconnected with it, (and certainly when it is unconnected), their proofs are not heard in court unless they happen to be more important than any objection the defence can raise against them [exceptione]. (This, following others, is said by Riminaldi the younger, advice 361, numbers 32 and 33, and Farinacci, op.cit., question 37, numbers 18 and 19, and question 56, number 73 and what follows.)

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Ulrich Zasius (1461–1535) published Responsa Iuris, sive Consilia in 1538.

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Sit igitur conclusio, qua utrique quaesito respondetur. Si testes in effectu, in fine, in specie hoc est in substantia criminis conveniant, et plures sint, et hac in re fide digni admitentur et fidem faciant ad torturam in hoc nostro crimine. Tenent Maschard. d. vol. 2, conclus. 856, Binsfeld. d. mem. 2, conclus. 6, dub. 1 probatur, quia de crimine haeresis, quod | in eo testes quoad locum et tempus singulares, sed de eadem spem haeresis deponentes recipiantur docet Simanc. ubi sup.: Nonne Sagae in diversis locis et diversis temporibus conveniunt? Quare non magis, locus, est de substantia criminis huius, quam de substantia haereseos. quaestio xi An in denunciatione plurium requiratur, quod quilibet fecerit confessionem in tormentis, vel utrum hoc solum procedat in denunciatione unius? Praemittam quod certum videtur: Regulare est testibus criminosis et infamibus infamia iuris (tales autem sunt qui convicti, et qui de seipsis confessi, hoc est socii criminis), non credi nisi in tormentis: lib. quoties cap. de. quaest. lib. ob. carmen § si ea conditio. D. de test. § si vero ignoti, in Authen. eod. Specul. in tit. de teste §1, n. 28, Barthol. in lib. Cunctos populos cap. de summ. Trin. n. 12, Bald. n. 15, Albert. n. 34, Salic. n. 18, Ias. in lib. lectu. n. 67 et in 2, 46, Fulgos. cons. 173, in causa, colum. 1, post Oldrad., sic etiam Aretin. in cap. 1, n. 40, de accusat., Ruin. cons. 146, col. 1, et cons. 147, lib. 5, Arnon. solilog. 60, Marsil. in § diligenter n. 62, et in lib. 1 § Divus. n. 5, D. de quaestion. et cons. 78, n. 15, cons. 109, n. 13, cons. 130, n. 40, Grammat. cons. 70, n. 10, Blancus Tractat. de indic. n. 381, Bossius eod. tit. n. 151, Clarus § si quaest. 31, n. 13, ubi docet sic servari

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So, in reply to both parts of the question, one may conclude that if witnesses agree upon what was actually done, its purpose, and the type—that is, the substance—of the crime, and if there is more than one witness, and they are worthy of being trusted in regard to this matter, their evidence may be heard and create enough confidence to warrant torture in the case of the crime we are discussing. (This is the opinion of [Giuseppe] Mascardi, op.cit., Volume 2, conclusion 856 and [Peter] Binsfeld, second part, conclusion 6, doubt 1.) The proof is that, when it comes to the crime of heresy, single witnesses who lay evidence about the same type of heresy with respect to place and time, are given a hearing, as [Diego de] Simancas tells us, (op.cit. supra). Don’t witches [sagae] meet in different places at different times? Consequently, ‘place’ is just as much connected with the substance of this crime as it is with the substance of heresy. Question 11 Is it a requirement that, when information is laid by more than one person, each one of them make a confession under torture, or can this proceed only when information is laid by a single individual? I shall begin with what seems to be certain. It is regular practice for criminal witnesses who are disreputable as a result of being declared legally notorious— those, for example, who have been found guilty of a crime and those who have confessed their guilt, in other words, those who have helped one another in a crime—not to be believed except under torture. (‘However many times’, Codex, ‘investigations’ [= 9.41.12]; ‘because of a spell’, paragraph ‘if this condition’, Digest, ‘witnesses’ [= 22.5.21 preface]; paragraph, ‘but if unknown’ in the authentic [New Constitutions of Justinian]; the same passage, The Mirror [of Justice], under the heading ‘a witness’, paragraph 1, number 28; Bartolo [da Sassoferrato] on ‘all peoples’, Codex, ‘the highest Trinity’ [= 1.1.1 preface], number 12; Baldo, number 15; Alberico [da Rosate?], number 34; [Bartolomeo da] Saliceto, number 18; Giasone [del Maino], lecture [on the Institutes], number 67, and on 2.46; [Raffaele] Fulgosio, advice 173 on ‘the reason’, column 1, following Oldrado de Ponte; so, too, [Francesco Accolti] Aretino on chapter 1, number 40 in his Accusations; [Carlo] Ruini, Book 5, advice 146, column 1 and advice 147; [Giovanni d’] Arnono, Soliloquies, 60; Marsili on paragraph ‘carefully’, number 62 and on 1, paragraph ‘the divine [Antoninus]’, number 5, Digest, ‘investigations’ [= 48.18.1.5], and advice 78, number 15, advice 109, number 13, and advice 130, number 40; [Tommaso] Grammatico, advice 70, number 10; [Marco Antonio] Bianchi, treatise on evidence, number 381; [Egidio] Bossi, same title, num-

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in Praetoriis Medidant.; idem censent Rolandus a valle cons. 51, n. 30, et cons. 73, n. 22, Menoch. De arbit. cas. 474, sub n. 49, Vinc. Onded. cons. 100, n. 16, Mascaer. concl. 1317, n. 38, et Bensfeld. D. membr. 2, conclus. 5, vers. circa hanc conclus. quoad infames, adductis plurimis. Farin. q. 43, n. 132, et q. 56, n. 5, et 57. Quare requiri specialiter et reus in tortura nominet; et si extra torturam nominaverit, specialiter torqueri debere non confirmatione nominationis, ut docent Clarus q. 41, vers. caeterum si reus. et Farinacius d. q. 43, n. 136 et d. n. 56, quia tortius praesumitur dicere veritatem, gloss. in lib. edictum D. de quaestion. Alberi. ibi. n. 2, multi apud Farinac. quaest. 43, n. 15, et haec procedere etiam ubi plures sunt nominatores volunt dd. Patavini in suo cons. eo quod certum sit unius solius nominationem non sufficere ad torturam, et ideo de pluribus hoc idem se asserere. Contra dd. Friburgenses in suo Responso, censent hoc dubio non carere; et rationem qua communis nititur non esse solidam, quia impedimentum infamiae est iuris positivi, ideo quoad hoc in exceptis liber sit iudex, et propterea ad infamiam purgandam torturam non esse necessariam. Et propterea recte a Simanca dictum communis opinonis assertores sine lege et sine ratione loqui. De Carolina quoque constitutione verius id negasse Binsfeldium, quam ego affirmarim: lib. 5 Disquisit. sect. 3, in secundo indicio sub litt. L, vers. sed quaedam circa hanc rem. Fateor me illis occasionem reprehendendi dedisse, cum scripsi expresse requirit; debui enim et arbitror volui scribere, satis clare ex ea colligi, nam cum art. 31, agens denunciatione, semper addit in quaestione

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ber 151; [Giulio] Claro, paragraph ‘if’, question 31, number 13 where he tells us that this is the custom in the law-courts of Milan. Rolando della Valle thinks the same, advice 51, number 30 and advice 73, number 22, as do [Giacomo] Menochio, Cases etc., case 474, under number 49; Vincenzo Ondedei, advice 100, number 16; [Giuseppe] Mascardi, conclusion 1317, number 38; and Master Binsfeld, part 2, conclusion 5, at about ‘concerning this conclusion in respect of disreputable people’; and very many others are adduced by [Prospero] Farinacci, question 43, number 102 and question 56, numbers 5 and 57.)317 Consequently, it is a particular requirement that the accused name names under torture. If he gives names outwith torture, he should not be tortured for the specific purpose of getting him to confirm the names, (as Claro says in question 41 at ‘however, if the accused’, and Farinacci in op.cit., question 43, number 136 and number 56), because someone who has been tortured is presumed to be telling the truth. (Gloss on ‘edict’, Digest, ‘investigations’ [= 48.18.8 preface]; Alberico [da Rosate] on the same passage, number 2; and many others cited by Farinacci, question 43, number 15.) In their advice, the scholars from Padua think that this is the procedure, even when there is more than one person naming names, because it is certain that naming by only one person is not enough to warrant torture, and therefore they maintain the same in the case of there being more than one. The scholars from Freiburg take the opposite line in their advice, and think this is not without uncertainty and that the reasoning on which the common opinion relies is not conclusive, because the impediment of disreputability belongs to man-made law and therefore, as far as this is concerned, in cases which fall outwith the normal legal rules, a judge has a free hand, and on that account torture is not necessary to wipe out disreputability. On that account, too, Simancas was correct in saying that those who defend the common opinion speak without legal justification and without reason. That Binsfeld denied this in connection with the Carolina Code is truer than I said in Investigations Book 5, section 3, evidence 2 under the letter L at ‘but certain points in connection with this matter.’ I admit I gave those people an opportunity to rebuke me when I wrote ‘it is an express requirement’, because I should have written, (and I think I meant to write), that it is quite clearly deduced from the Code, because article 31, which deals with laying evidence against someone, always

317

Alberico da Rosate (c.1290–c.1360) wrote highly praised commentaries on the Digest and Codex, and also a collection of legal maxims, Dictionarium Iuris Civilis et Canonici. Raffaele Fulgosio, (1367–1427), wrote Consilia and commentaries on the Codex and the Digest. Carlo Ruini (1456–1530). His Legal Advice and Replies (‘Consilia et Responsa’) appeared in 5 volumes in Venice in 1571.

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proposita, item interrogatus aut tortus, supponere videtur quaestionem. Non obstat, quod ait, in carcere: nam hoc per sequentia est explicandum, et qui in tortura nominat, aut interrogatur, certe in carcere nominat et interrogatur. Sed quicquid sit de Carolina, et licet | id ex d. cap. illi qui. 5, quaest. 5, non satis probaretur quod communis vult, quia gloss. illum textum exponit de spontanea denunciatione extraiudiciali, hoc est de detractione seu diffamatione; tamen aliis adhuc legibus nituntur dd. Doctores opinionis communis defensores, ut ostensum § in princ. q. et quamvis non nitatur quis textu aperto legis tamen si argumento probabili ex lege, vel eius ratione id deduxerit, non est dicendus sine lege loqui; immo licet falleretur in sua deductione, eo quod ratio legis illi non suffragaretur revera, et aliorum interpretatio verior foret, in rigore tamen, qui legem adduxit, eo ipso quod adduxit, non debet dici sine lege loqui, quod communi usu loquendi, de illis usurpatur, qui nullam legem laudant in dicti sui confirmationem, et propterea Simancas de communi adeo tam gravium dd. sententia potuisset loqui modestius. Quid? Quod nec congrua ratio deest, quam postea dabo. Illud fateor satis probabilem et tutam esse sententiam negativam non requiri ut omnes sint quaestione examinati; hanc dico satis probabilem, tum quia non est destituta suis defensoribus, ut Simanca magnae authoritatis Episcopo et Doctore, aliisque ut Binsfeldio, d. conclus. 5, qui putat sufficere si metus tormentorum adhibeatur, et recepta est praxi Curiarum Franciae, testibus Chassaneo ad consuetum Burgund. rub. 1 §5 vers. Al’arbitraige du iuge, n. 14, et Claro d. quaest. 21, n. 11, qui addit hac in re loci consuetudinem sequendam, quod est verissimum. “Ideo censeo ubi consuetudo circa hoc exstat, ab eo iudicibus non recedendum, ubi consuetudo non exstat, posse iudicem tuta conscientia utramvis quoad plures, partem sequi, quia (ut alias dixi) probationum valor et fides arbi-

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adds ‘in the proposed examination,’ Likewise, ‘questioned or tortured’ seems to suggest examination under torture. This is not contradicted when it says, ‘in prison’, because this should be explained by what follows, and someone who names names or is interrogated under torture undoubtedly does so under interrogation in prison. But whatever it says in the Carolina, and even though one could not satisfactorily prove from the chapter ‘those who’, 5 and question 5, what the common opinion means, (because the gloss says the text is talking about the voluntary extrajudicial laying of evidence—that is, about slander or defamation), the learned scholars who defend the common opinion are still relying upon other laws, as is demonstrated in their first paragraph, and even though someone is not resting his case on the clear text of the law, if his deduction has been made as the result of a conclusive argument which relies upon the law, he should not be said to be speaking without legal justification. Indeed, even though he might be mistaken in his deduction about the rationale of the law, and other people’s interpretation might be more accurate, strictly speaking someone who has adduced a law ought not, by the very fact that he has adduced it, to be said to be speaking without legal justification simply because, according to the standard way of speaking, he is seen as one of those people who adduce no law in confirmation of what they have said; and on that account, Simancas could have spoken with greater moderation about the common opinion of such weighty scholars. Why? Because it lacks proper reasoning, and I shall supply this later. I acknowledge the fact that a reasonably convincing and safe opinion is not required for everyone to be examined under torture. I say ‘reasonably convincing’ because this does not lack its defenders, such as Simancas, a bishop and scholar of great authority, and others such as Binsfeld, (op.cit., conclusion 5), who thinks it is sufficient if fear of being tortured is used [for this purpose]. This is common practice in the law-courts of France, as is testified by [Barthélemy de] Chasseneuz, Customary Practices of Burgundy, rubric 1, paragraph 5 at about ‘at the discretion of the judge’, number 14 and [Giulio] Claro, op.cit., question 21, number 11, who adds that in this situation one should follow local custom, which is perfectly true.318 Therefore, I think that when there is a local custom which is applicable, judges ought not to reject it. When a local custom does not exist a judge can, with a safe conscience, follow both [these scholars] in the case of there being more than one witness because, as I have said elsewhere, the value of the proofs 318

Barthélemy de Chasseneuz (1480–1542) was a French jurist of Burgundian descent. His Commentaries on the Customary Practices of the Duchy of Burgundy and almost the Whole of France was published in Paris in 1517.

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trio iudicis est subiecta.” Vide Menoch. de arb. iudic., lib. 2, cent. 1, cas. 90, Binsfeld. d. concl. 5, vers. hic pro nostra materia. “Hoc tamen arbitrium sic moderandum, ut pro personarum qualitate, et criminum, et aliis circumstantiis modo plus modo minus non tortis credat; ordinarie quoque tenetur plus tortis credere, quam spontaneis; immo nisi urgeant illum circumstantiae, non facile sit credulus nominationibus spontaneorum etiam plurium.” Ut in hac re tam timide loquar, me movet ista ratio, ab aliis non considerata. Praesumptio quod infamis sponte sua non sit dicturus veritatem (in qua praesumptione fundatur communis opinio), licet sit iuris divini (nam hoc iure de nullo praesumitur, quod in re, maxime gravi, mendacium sit dicturus); est tamen plusquam iuris positivi, ut pote orta ex naturali quodam instinctu hominibus cunctis communis, quod mali nisi malo coacti officium suum non faciant, vel iustitiae faveant, et ideo quasi est iuris gentium. Attamen quia ex eodem iure gentium videtur manare alia quoque praesumptio, quod in simili hominum genere (v.g. infamium), semper plus credendum sit, caeteris paribus, duobus vel tribus quam uni. Prior praesumptio est pro communi opinione, posterior pro contraria quoad plures nominantes, ideo licet adhuc propendeam in communem, alteram tamen non reiicio. quaestio xii An mulier possit esse testis in criminalibus? In civilibus etiam gravibus (v.g. in matrimonio) mulierem, cui nihil nisi sexus obstat, esse | testem integram et omni exceptione maiorem tradit Decius, cons. 342, col. 2. In criminalibus quoque, si civiliter ageretur, etiam canonico iure illam testem esse posse multi censent: Decius in lib. foeminae n. 34, de reg. iur., Clarus § fin. quaest. 24, n. 3, Farinac. quaest. 59, a n. 1. Item si ex officio

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and the faith one can have in them is subject to the judge’s decision. (See Menochio, Cases etc. Book 2, century 1, case 90 and Binsfeld, op.cit., conclusion 5 at about ‘here, for the matter we are dealing with.’) This decision [by the judge], however, should be tempered in such a way that, when it comes to those who have been tortured, he does not give them greater or less credence because of their social standing, the nature of the crimes, and other circumstances. Ordinarily, too, he is obliged to give greater credence to those who have been tortured than to those who have given evidence of their own accord. Indeed, unless he is hard pressed by circumstances, it may not be easy for him to believe the names he has been given voluntarily by people, even if they are given by more than one person. However timidly I may be speaking on this subject, I am influenced by the following explanation which others have not considered. Even though there is a presumption in ecclesiastical law that a disreputable person will not tell the truth of his own accord—and common opinion is based on this presumption—this law presumes that no one will tell a lie, especially in so serious a matter. It is even more a presumption of man-made law, in as much as it arose from a natural instinct, common to all human beings, that unless wicked people are forced to do so by something which hurts them, they will not do their duty or promote justice; and so [the presumption[] belongs, as it were, to the law of nations. Yet another presumption always seems to flow from that same law of nations—that, everything else being equal, when it comes to people of a similar kind, (for example, those who are disreputable), one should always believe two or three of them more than one. The first presumption applies to the common opinion, the second to its opposite, as far as several people’s naming names is concerned. Therefore, even though I still lean towards the common opinion, I do not reject the other one. Question 12 Can a woman be a witness in criminal cases? [Filippo] Decio says that in civil cases, even serious ones such as those dealing with matrimony, a woman who has nothing against her except her gender is an honest witness and this outweighs any objection raised by the defence [exceptione], (advice 342, column 2.) Many people think she can be a witness in criminal cases, too, even under canon law, (if these are conducted in in accordance with civil law). (Decio on ‘women’, number 34, Lecture on the Rules of Law; [Giulio] Claro, at the end of question 24, number3; Farinacci, question 59, from number 1). Likewise, if investigation of the crime is being conducted offi-

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de crimine inquiratur: Vide Farinac. s. n. 9. Si vero non inquiratur ex officio, et agatur criminaliter Canonico iure mulierem repelli constat in criminibus non exceptis: cap. mulierem 33, q. 5, cap. forus § testes et vers. signific. gloss. in cap. tam litteris. de testibus, Abb. Felin. et Decius in cap. quoniam de testibus, Marsil. cons. 22, n. 1, cons. 59, n. 9, cons. 101, n. 8, cons. 130, n. 34, Onded. cons. 100, n. 24; nisi crimen foret huiusmodi, ut eius veritas aliter quam mulieres haberi non posset. Sic post Mars. Alca. et Decian. Baiardus ad Clarum quaest. 24, n. 9. In exceptis autem admitti illo iure, receptum, ex cap. tanta de simon. ubi Anan., Aufrer., Croti. et Nepos in Tract. testibus, Petr. Duennas regul. 315, Imol. et Boyck in d. cap. quoniam, Alex. cons. 11, n. 3, cum aliis apud Farinac. d. q. 59, n. 10, et de crimine maleficii expresse, Bonin. lib. 4. Daemon. cap. 4. De iure civili, et in praxi curiarum saecularium in omnibus criminalibus mulier (si aliud non obstet) recipitur ad testimonium dicendum: lib. ex eo D. de testibis cap. ex eo 15, quaest. 3, gloss. ibi et in d. cap. forus § fin. communem testatur Alexand. cons. 11, n. 11, lib. 1 et cons. 115, col. pen. lib. 4, Socin. cons. 54, col. 2, lib. 3, Bonifac. vital. tit. de testam. n. 35, et 37. Stephanus Aufrer. Tractat. de testibus n. 69, Nepos ibid. n. 66, Crottus ibid. rub. in caus. criminal qui testam. admitt. n. 49, Gigas ubi supra. quomodo et per quos quaest. 6, Clarus § fin. quaest. 24, n. 2, Farinac. d. loco. n. 17, de Italia, etiam in Ditionibus Ecclesiae hanc praxim obtinere testantur Alex. cons. 24, vol. 2, Grammat. cons. 12. n. 7,

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cially. (See Farinacci, number 9.) But if it is not being conducted officially and is being done in accordance with criminal law, it is agreed that under canon law a woman is rejected [as a witness] in crimes which do not fall outwith the normal legal rules, (question 5, chapter 33 ‘a woman’; chapter ‘custom’, paragraph ‘witnesses’; and at about the word ‘meaning’, the gloss on the chapter ‘to such a degree by letter’, on witnesses. Nicolò de’ Tudeschi (Abbas), Felino, and Decio in the chapter ‘since when it comes to witnesses’; [Ippolito] Marsili, advice 22, number 1, advice 59, number 9, advice 101, number 8, advice 130, number 34; [Vincenzo] Ondedei, advice 100, number 24), unless the crime of the kind which means that the truth of it cannot be had except from [the evidence of] women. (This is what [Andrea] Alciato and [Tiberio] Deciani say, following Marsigli, and [Giambattista] Baiardi on Claro, question 24, number 9.) In cases which fall outwith the normal legal rules, however, it is accepted that under that law they be given a hearing, (chapter ‘so many things about simony’, on which [Giovanni d’] Anania, [Étienne] Aufréri, [Giovanni] Crotto, and Népos de Montauban in their treatises on witnesses; Pedro de Dueñas, Rules, 315; [Giovanni d’] Imola and Boyck on the chapter ‘since’, cited earlier; Alessandro [Tartagni], advice 11, number 3, along with others in Farinacci, op.cit., question 59, number 10), and expressly in the crime of malefice, ([Jean] Bodin, The Madness of Evil Spirits Book 4, chapter 4.)319 As far as the civil law is concerned, and according to the practice of secular courts, a woman can be given a hearing and, if there is no obstacle to it, deliver testimony in all criminal cases. (‘Because’. Digest, ‘witnesses’ [= 22.5.18]; chapter ‘because’, question 15, gloss 3 on it, and the chapter ‘custom’, cited earlier, paragraph, ‘he testifies to the common ....’; Alessandro [Tartagni] Book 1, advice 11, number11 and Book 4 advice 115, penultimate column; [Bartolomeo] Socini Book 3, advice 54, column 2; Bonifazio Vitalini, heading ‘evidence’, numbers 35 and 37; Étienne Aufréri, treatise on witnesses, number 69; ‘Nepos’, ibid., number 66; [Giovanni] Crotto, ibid., rubric ‘who is given a hearing in criminal cases’, number 49; [Girolamo] Giganti, loc.cit. supra, ‘how and by whom’, question 6; [Giulio] Claro, last paragraph of question 24, number 2; [Prospero] Farinacci, loc.cit., number 17.) Alessandro [Tartagni] testifies that this practice obtains in church courts in Italy, Volume 2, advice 24, as do [Tommaso] Grammatico, advice 12, number 7; [Giambattista] Baiardi in an addition to Claro, question 21,

319

Étienne Aufréri (1458–1511) was an advocate working largely in Toulouse. His essay dealing with the question of unsuitability of witnesses is included in his Short Golden Works. Népos de Montauban (floruit thirteenth century) was a French jurist and wrote a Treatise on Witnesses. Pedro de Dueñas (floruit mid and later sixteenth century) published two books on legal rules, one in 1557, the other in 1571.

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Baiard. addition. ad Clarum quaest. 21, n. 20, et ad quaest. 24, n. 8, de Francia praxi satis locuplex testis, quia de fidei re non agitur est praefatus Bodinus. Haec indubitata de pluribus faeminis complicibus, nam si unica esset, sociam criminis a nominatione repellendam putarem, quia tunc praeter sexum alium patitur defectum, nempe infamiae; infamem vero mulierem audiri non docemur: lib. qui testamento § mulier D. De testam. ubi Barthol. et Imo., vel quia simul pauper et vilis, Dec. cons. 310, n. 5, Ioann. de Amicis. cons. 87, n. 8 et 9, Paris. cons. 152, n. 17, in lib. 4, Grammat. cons. 26, n. 23, et cons. 58, n. 10, Roland. cons. 24, n. 64, et seqq. lib. 1, Bertazzol. cons. 3, n. 6. Onded. cons. 100, n. 18, et multo magis si foret minor annis viginti: arg. lib. in testimonium. D. de testib. Alex. cons. 64, col. 1, n. 1, Bertazz. cons. 3, n. 5. Dixi, si unica esset; nam numerus alios defectus potest supplere. supr. ad q. 1. quaestio xiii An ad confessionem duarum mulierum procedi possit sive ad torturam, sive ad condemnationem?

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Cum omnes fateantur, et ratio maioris detrimenti dictet, plura requiri ad condemnationem quam ad torturam, et non quaecumque ad istam sufficiunt, etiam ad illam sufficere, sunt ista duo dispescenda. De tortura sunt qui absolute negent, et semper volunt a tribus vel qualiter pro denunciantium | qualitate factam nominationem, ut possit torqueri denunciata. Sic dd. Friburgenses, quibus obstat axioma toties ab illis receptum, quae probationes sufficiant id totum a iudicis arbitrio dependere. Poterit ergo, quando iudicabit se duarum denominatione, propter circunstantias personarum etc. satis verisimiles probationes habere ad torquendum procedere.

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number 20 and to question 24, number 8. Bodin, whom I mentioned earlier, also provides fairly abundant evidence that in France it is not done in a case concerning the Faith. This is undoubtedly so when more than one female accomplice is concerned, because if there were just one, I should think her naming of a criminal associate would have to be rejected since, under those circumstances, she suffers from another deficiency in addition to her gender—I mean, of course, ill repute. Yet we are not told that a woman of ill repute is not given a hearing, (‘someone who in evidence’, paragraph ‘a woman’, Digest on giving evidence, on which Bartolo [da Sassoferrato] and [Giovanni d’] Imola comment), or [that she is not heard] because she is poor and comes from the lowest class, ([Filippo] Decio, advice 310, number 5; Giovanni de Amicis, advice 87, numbers 8 and 9; Paride [del Pozzo] Book 4, advice 152, number 17; [Tommaso] Grammatico, advice 26, number 23 and advice 58, number 10; Rolando [della Valle] Book 1, advice 24, number 64ff.; [Bartolomeo] Bertazzoli, advice 3, number 6; [Vincenzo] Ondedei, advice 100, number 18), and much more so were she to be younger than twenty, (argument on ‘giving witness’, Digest, ‘witnesses’ [= 22.5.20]; Alessandro [Tartagni], advice 64, column 1, number 1; Bertazzoli, advice 3, number 5.) I said, ‘if there were just one’, because a number of them can make up for the other deficiencies, (see above, question 1.) Question 13 When two women have made a confession, is it possible to proceed to torture or bring in a verdict of guilty? When they all confess and a fairly major deficiency [in the evidence] dictates a reason for it, more is required to find them guilty than to have them tortured, and just anything at all is not sufficient to warrant the latter, or even to warrant the former. One has to distinguish between the two. In the case of torture, there are those who refuse, without reservation, [to let it be done] and, to make it possible for the woman who has been denounced to be tortured, they always want the naming of names to be done by three people or done in some fashion which takes into account the character of those who are laying the information. This is what the scholars from Freiburg say, but a [legal] precept, which they have accepted on many an occasion, stands in their way—that it depends on the judge to decide what proofs are sufficient to warrant all this. Therefore, he will be able to proceed to torture when, as a result of two women’s naming names and the quality of the persons concerned, etc., he judges he has proofs which are sufficiently likely to be true.

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Probant tamen auctoritate et ratione, auctores laudant D. Binsfeldium. d. concl. 6, dubio. 2, vers. septimum illatum; et me ipsum: d. lib. 5, sect. 3, vers. secundum indicium. Rationem hanc adferunt: viri testimonium plus ponderis habet, quam faeminae ob sexus fragilitatem; at duorum virorum sociorum denunciatio requiritur, ut adversus denunciatam personam ad quaestionem procedi possit: igitur duarum foeminarum nominationes ad hoc non sufficiunt, sed plurium requiruntur. Negari non potest, quin haec sententia et tutior sit et rationi maxime consentanea; si tamen iudex sibi censeret ad torturam deveniendum, non aussim factum damnare; propter axioma praefatum, et quia dd. patavini absolute asserunt, ex testatione duarum mulierum, quibus solus sexus obstat, iuste ad torturam procedi posset. Ad me quod attinet, si probabiliter tales duae denuncient, cum bonis circumstantiis, maxime scientiae causa, et non sint contraria virorum testimonia, quae semper pluris facienda, non vererer hoc sequendum dicere. Quod si viri unius testimonium adesset, non dubitarem cum eo unius mulieris bene munitam circumstantiis requisitis nominationem admittere ad torturam tantum. Solarum etiam trium foeminarum complicum denunciationem ad eamdem sufficere posse censeo. Nec tamen propterea pugno cum traditis d. vers. secundum: illic enim nolui tradere quid in rigore iudici permissum sit, sed exempli gratia numerum expressi, cum quo vel scrupulosissimus iudex, queat esse securus. Ad condemnationem nulli unquam sim author ex duarum tantum muliercularum nominatione procedere, nisi praeterea adessent alia sufficientia adminicula; et hoc non sufficere docent multi, ut Decius in lib. Foeminae, n. 35, De reg. iur., Riminal. Iun. cons. 217, n. 5, post Gandin. et alios Farinac. q. 59, n. 26, et 27, qui cum Riminal. concludit ad condemnationem poenae ordinariae in criminalibus criminaliter intentatis, nec tres quidem foeminas sufficere, quod retulit, nec reiecit Baiardus ad d. q. 24, n. 7. Ratio est, quia foeminae in criminalibus non habentur pro integris personis, et minoris fidei sunt quam viri, utpote

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The authors [of the Freiburg advice], however, prove their case by appealing to authority and reason. They praise Master Binsfeld, (conclusion 6, doubt 2, at about ‘the seventh inference’), and me, (Book 5, section 3, at about ‘the seventh piece of evidence’), and they offer the following rationale. A man’s testimony has greater weight than that of a woman because of women’s frailty. But when it comes to naming names, two male associates are required to make it possible to proceed to an examination [under torture] of the person who has been denounced. Therefore, two women naming names are not sufficient for this purpose. More are required. It cannot be denied that this opinion is the safer one and very much consistent with reason, and if a judge were to think he should decide to have the person tortured, I should not venture to condemn him for it because of the legal precept I mentioned, and because the scholars from Padua unreservedly maintain that, on the basis of the testimony of two women against whom there is no objection apart from their gender, he could justifiably proceed to have the person tortured. As for my opinion on the subject, if two such women bring a plausible charge, with circumstances which are soundly based, most especially because they know what they are talking about, and their testimonies do not contradict those of men, (which must always be of greater value), I have no qualms in saying that this should be followed up, and if the testimony came from one man, and it was accompanied by one woman’s naming names, provided she had supported it with the requisite details should not hesitate to admit it in evidence simply with respect to torture, and I think that information laid by three female accomplices can be sufficient for the same purpose. But I do not disagree on that account with what has been said with respect to the second point, because I did not want to say there what a judge is allowed to do according to the strict [interpretation of the law]. I wanted to give, by way of a clear example, a number with which a really meticulous judge can feel secure. As for bringing in a verdict of guilty, far be it from me ever to suggest to anyone that he should do so on the strength of names’ being given by only two silly women without there being additional sufficient pieces of supporting evidence. (See [Filippo] Decio says in ‘of a woman’, number 35, in his Rules of Evidence; Riminaldi the younger, advice 217, number 5 in which he follows [Alberto] Gandino and others; and Farinacci, question 59, numbers 26 and 27.) Decio, along with Riminaldi, concludes that not even three women are enough to warrant a guilty verdict and the standard punishment in the case of criminal actions carried out with criminal intent, and [Giambattista] Baiardi repeated this and did not reject it in question 24, number 7. The reason is that in criminal cases, women are not considered to be impartial individuals and are less

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non omni exceptione maiores d. cap. forus. Alex. cons. 11, n. 11, lib. 1, Caepola in Cri. cons. 32, n. 2, Socin. cons. 54, col. 2, lib. 3, Aymon cons. 99, n. 5, Anton. Gomez tom. 3, resolut. cap. 12, n. 20, ideo numerus in illis supplet fidem. Innoc. in cap. cum nuntius, de test., Petrus Ancharan lib. 3, q. 51, n. 38, et multos citans Binsfeld. d. concl. 6 in fi. et Farinac. d. n. 26, summa namque fragilitas et levitas est huius sexus, iuxta illud quod Ciceroni tribuitur: Crede ratem ventis, animam ne crede puellis. Namque est foeminea tutior aura fide. Quid levius pluma? Pulvis: quid pulvere? ventus: Quid vento? mulier: quid muliere? Nihil. quaestio xiv An denunciationes foeminarum tum magis fidem faciant, quando non adsunt testimonia virorum in contrarium? Quibusdam videtur non videri earum fidem magis augeri, quandoquidem mulierum conditio spectanda sit. lib. 3 § tu magis et § quae argumenta D. de test. Alii vero, pro affirmativa adeo exserte scribunt, ut negent se videre quid obstet. Quia quod in 13 quaestionis responsione dictum, denunciationibus foeminarum plurium, nempe trium vel quatuor in ordine ad torturam credi; id intelligendum, si nihil illis praeter sexum obsit; obstat autem illis praeter sexum multum per omnem modum, si in contrarium sint indicia, praesumptiones aut

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trustworthy than men, in as much as men’s evidence is, without exception, of greater value. (Chapter ‘custom’, Alessandro [Tartagni], advice 11, number 11, passage 1; [Bartolomeo] Cipolla, advice 32, number 2;320 Aimone [Cravetta], advice 99, number 5; Antonio Gómez, Resolutions Volume 3, chapter 12, number 20.) Therefore, in their case, trust [in their evidence] is made up for by their number. (Innocent [iii’s decretal] on witnesses, chapter ‘when a messenger’; Pietro d’Ancarano Book 3, question 51, number 38; and many cited by Binsfeld at the end of conclusion 6, and Farinacci number 26.) This, according to the well-known saying attributed to Cicero, is because their gender suffers from the greatest frailty and frivolity: ‘Trust your raft to the winds. Don’t trust your life to young women, Because a breeze is more reliable than putting one’s trust in a woman. What is lighter than a feather? Dust. What is lighter than dust? The wind. What is lighter than the wind? A woman. What is lighter than a woman? Nothing.’321 Question 14 When there are no testimonies from men which contradict them, can one have more faith in information laid by women? Some people think that trust in what these women say is not particularly increased by the fact that one has to take a careful look at women’s character, (passage 3, paragraphs ‘you .... more’ and ‘these arguments’, Digest, ‘witnesses’.) Others, however, write so lustily in favour of an affirmative that they say they do not see any obstacle to it because of what was said in the reply to question 13— that charges brought by more than one woman, (meaning three or four of them), can be believed provided, one has to understand, there is no obstacle to one’s doing so, apart from their gender. But there is a great deal of objection to them, in every way, quite apart from their gender, if there is evidence, or if

320 321

Bartolomeo Cipolla (c.1420–c.1475). His Advice in Criminal Cases was reprinted several times during the sixteenth century. This quotation consists of two parts. The first two lines come from an epigram by Pentadius, a poet of the fourth century ad. There are two slight, but inconsequential differences between Del RÍo’s text and that of modern editors. Delrio writes ‘life/soul’ (animam) instead of ‘spirit/feelings’ (animum), and ‘breeze’ (aura) instead of ‘wave’ (unda). The second two lines are a well-known Latin saying or proverb and not by Pentadius.

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testimonia sive virorum, sive foeminarum; adeo ut si essent vel viri vel foeminae, a quibus probabiliter exculparetur denunciatus: ne sex quidem foeminis unam complicem denunciantibus, in ordine ad torturam credendum sit. Igitur plus fidei obtinet, nullis viris contrarium testantibus. Quid si dicamus, secundum se intrinsece, et intensive fidem tum non augeri, sed ab extrinseco tantum et extensive, quatenus omni obstaculo remoto, ratio naturalis dictat, plus credendum foeminis hoc casu? quaestio xv An plurium minorennium denunciatio faciat indicium ad torturam? Notandum primo non posse minorennes, ne in exceptis quidem criminibus testificari nisi sint eius aetatis, ut iam aliquomodo possint torqueri: iuxta Marsil. in lib. De minore n. 11, D. de quaest. et Carer. in Praxi crimin. Notandum secundo minorennium varios esse gradus aetatis, nam nomen porrigitur usque ad annum xxv. Dico primo minorennis qui habet annum aetatis vicesimum, in criminalibus omnibus est testis idoneus: arg. a contrario lib. in testimonium D. de test. tenent glos. in lib. invisti D. eod. Spec. et ibi Ioan. And. tit. de testib. § n. 34 communem et practicatam esse et qui contradixere in advertenter locutos, scribit Farinac. q. 58, num 19 et 21. Dico secundo si sit minor viginti annis, sed iam est pubes, sunt variae Doctorum sententiae. Prima est talem non esse idoneum testem in criminalibus, nisi in defectum aliorum testium, quando ex natura rei alii testes haberi non possunt, secus si

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there are pieces of evidence, presumptions, or testimonies, whether from men or from women, which contradict what they say, to the extent that, if there were men or women by whom the individual against whom information had been laid322 could credibly be exonerated, one could not, as far as warranting torture is concerned, believe even six women who were laying information one after the other against him, [saying] he was their partner-in-crime. Therefore, for people to have more trust [in their evidence], no men should be testifying to the contrary. What if we say that, under those circumstances, confidence is not increased and made stronger if [the evidence is given] privately, but only if [it is given] in open court and at length. Provided every obstacle has been removed, does natural reason declare that women should be believed more in this case? Question 15 Does information laid by several minors provide reason enough to warrant torture? First of all, one needs to note that it is not possible for minors, even in cases which fall outwith the normal legal rules, to give evidence in court unless they are already of the age when they can be tortured in some fashion. (This is what [Ippolito] Marsili says in his passage on minors, (number 11), in his commentary on Digest, ‘examinations’, and [Lodovico] Carerio in his book on criminal practice.) Secondly, one should note that there are various stages involved in the word ‘minors’, because the word stretches are far as their being 25. The first thing I say about ‘minor’ is that someone who has completed his twentieth year is a suitable witness in all criminal cases. (‘To testify’, Digest, ‘witnesses’ [= 22.5.20]). The Mirror [of Justice] has a gloss on ‘unwilling’. Digest, same section [= 22.5.8 or 22.5.19 preface], as does Giovanni Andrea under the heading ‘witnesses’, paragraph 34. Farinacci, (question 58, numbers 19 and 21), writes that it is a common practice and that those who have said the opposite have spoken inadvertently. The second thing I say is that if a minor is aged under twenty, but is already physically mature, scholars have conflicting opinions. The first is that such a person is not a suitable witness in criminal trials, (unless there is a lack of other witnesses), when, because of the nature of the crime, other witnesses cannot be had, just as in the case when other wit-

322

Denunciatus, specifically masculine.

664

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ex accidenti fiat, quod alii nequeant haberi. Sic post Host. d. Bald. Alex. cons. 64, n. 1, Specul. et ibi Ioann. Andr. d. loco. Ias. in lib. 1. cap. de summ. Trin. n. 50, et in lib. fin. cap. de indign., Marsil. cons. 11, n. 5, et cons. 162, n. 5. et cons. 127, n. 9, et multi alii relati a Farinac. d. q. 59, n. 10. Secunda sententia fuit Guidonis de Suzaria hoc verum esse in accusatore producente, non vero quando iudex ex officio procedit, praesertim in defectum probationum; tunc enim posse iudicem puberum minorennium testimonia recipere: seqq. hanc Alberi Florian. et Iacobin. a Sancto Georgio in d. lib. In testimonium, Angelus de Aretio in verb. comparuerunt n. 13, Marsil. in lib. De minore D. de quaest. n. 24, Blancus de indic. n. 349, et alii apud Farinac. supra n. 37. Haec sententia est verior, et receptior, quo ad crimina non excepta. Nam in criminibus exceptis atrocibus et occultis (quale est nostrum) quando desunt alia indicia; indistincte verum puto quod puberum testimonia recipiantur ad torturam. Quia tunc in his eorum persona habetur pro integra et omni exceptione maiore: est praxi recepta sententia, | quam tuentur ex d. lib. de minore in prin. Alberi, in d. lib. in testimonium. Ias. in lib. fin. col. ultima, cap. de indign., Gigas ubi supra q. 12, et alii apud Farinac. supra n. 22, 29 et 34. Si vero non sint puberes, sed pubertati proximi, tunc licet excludantur in aliis, admittuntur tamen in criminibus exceptis. Pubertati proximi sint nec ne, id pendet a iudicis arbitrio, quia non idem omnibus est terminus pubertatis, nec eadem tempestivitas: hoc communius recipi post Covarr. Duenas, et alios docet Iacob. Menoch. cas. 57, n. 44, de arb. iud. prior pars conclus. probatur lib. 3 § lib.

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nesses cannot be had because of some unforeseen circumstance. (This is what Baldo says, following Enrico da Susa; Alessandro [Tartagni], advice 64, number 1; The Mirror [of Justice], and Giovanni Andrea on the said passage; Giasone [del Maino] on Codex 1, ‘the highest Trinity’ [= 1.1], number 50, and the end of the Codex passage on unsuitable [witnesses]; [Ippolito] Marsili, advice 11, number 5, advice 162, number 5, and advice 127, number 9; and many others cited by Farinacci, op.cit., question 59, number 10.) The second opinion was that of Guido da Suzzara who said that this is true in the case of an accuser bringing a charge, but not when a judge proceeds officially, especially when there is a lack of proofs because, under those circumstances, the judge can hear from minors past the age of puberty. (Alberico [da Rosate] follows this, as do Floriano [Sampieri],323 and Giacomo da San Giorgio on the said passage ‘to testify’, [Digest 22.5.20]; Angelo Aretino (Gambiglioni) on the word ‘they have appeared in court’, number 13; Marsili on ‘a minor’, Digest ‘examinations’ [= 48.18.10 preface], number 34; [Marco Antonio] Bianchi in his book on evidence, number 349; and others in Farinacci, op.cit. supra, number 37.) This opinion is more accurate and more generally accepted in respect of crimes which do not fall outwith the normal legal rules. But in dreadful, secret crimes which do fall outwith the normal legal rules, such as the one we are dealing with here, I think that, when other evidence is lacking, it is true, without reservation or qualification, that the testimonies of post-pubescent [minors] can be heard with a view to warranting torture, because under those circumstances their character is considered to be free from prejudice, and in practice the received opinion is that no exception can be taken to what they say. (This is defended on the basis of the passage ‘a minor’, [Digest 48.18.10 preface] by Alberico [da Rosate] at the beginning of his commentary on ‘to testify’ [Digest 22.5.20], Giasone [del Maino] at the end of the final column of the Codex passage on unsuitable [witnesses]; [Girolamo] Giganti supra, question 12; and others in Farinacci, op.cit. supra, numbers 22, 29, and 34.) If, on the other hand, they are not adults, but are very close to adulthood, then even though they are excluded in other cases, they are heard in criminal cases which fall outwith the normal legal rules. Whether they are very close to being adults depends on the judge’s decision, because the end-point of puberty is not the same for everyone and does not happen at the same time in everyone’s life. ([Giacomo] Menochio, Cases etc., case 57, tells us that [Pedro de] Dueñas and others follow [Diego de] Covarrubias in accepting this as fairly

323

Floriano Sampieri (c.1360–1441) wrote several commentaries on different Books of the Digest.

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Iulia et lib. in visti D. de test. in § sed nec pupillus lib. ex libero § 1 D. de quaest. ratio quia impubes iurare nequit lib. qui iurasse in prin. D. de iureiur. et lib. 4 D. de in lit. iur. nec potest torqueri in caput alterius. d. lib. ex libero § 1, adeo ut eius testimonium, etiam non apponente parte, pro nullo sit habendum, Ang. in §. 1. n. 3. Auth. de test. Marsil. in lib. de minore n. 22, D. de quaestionibus. Nisi in casu, mortis Domini occisi in domo, lib. 1. §. impuberi D. ad Syllan. aut si iudex ex officio suo dictum impuberis assumeret, quod licet, propter d. § 1 negarint Alex. cons. 64, lib. 1, et Cagnol. in d. lib. 2 § item impuberes. contendunt tamen Specula, et Ioan. Andr. d. tit. de test. vers. item exciditur quod est impubes n. 34, Bald., Alberi., Florian. et Iacobin. in d. lib. invisti. et in d. lib. testimonium, quorum sententia et in scholis et in tribunalibus receptior est, teste Farinacio supra n. 37. Posterior pars concl. de criminibus, exceptis, est plane communis, et probatur ex lib. de minore in prin. D. de quaestion.: ubi late Mars. Decius autem et Cagnol. in lib. 2 § item Imp. D. de reg. iur. Gigas d. q. 12, n. 4, Schenk De testibus n. 13, vers. nisi agatur, Farinac. supra. 9, q. 58, n. 22, quod introductum ob criminum horum atrocitatem, et tum ab his iuramentum exigi posset; et deberent, modice tamen, torqueri, Farinac. q. 41, n. 102, et 103.

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common [opinion]. The first part of the conclusion is proved by Book 3, paragraph 1, ‘Julia’ and by Digest, ‘witnesses’, paragraph 1, ‘but neither an orphan’ [= 22.5.19.1] and from ‘of a free man’, paragraph 1, Digest, ‘examinations’ [= 48.18.5 preface]. The reason is that a pre-pubescent person cannot swear an oath, (‘the person who is said to have sworn an oath’, Digest, ‘swearing an oath’ [= 12.2.26 preface] and Digest, ‘swearing an oath during a trial’ 4 [= 12.3.4 preface]), and cannot be tortured with the result that someone else is put in danger, (‘of a free man’ paragraph 1), to the extent that, even when his testimony does not put someone up for trial,324 it should be considered null and void. (See Angelo [Gambiglioni] on paragraph 1, number 3, The Authentic [New Constitutions of Justinian] on witnesses; Marsili on ‘a minor’, (number 22), Digest ‘examinations’ [= 48.18.5 preface]), except in the case of the death of his master who has been murdered in the house, (paragraph 1, ‘someone not yet an adult’, Digest, ‘the Silanian decision of the Senate’ [= 29.5.1.33]), or unless the judge were officially to adopt what the adolescent said, (although, because of the said paragraph 1, Alessandro [Tartagni] Book 1, advice 64 and [Girolamo] Cagnolo on paragraph 2, ‘likewise adolescents’, deny this.)325 The Mirror, however, disagrees and so do Giovanni Andrea, (the heading ‘witnesses’, at about ‘likewise he is excluded because he is an adolescent’, number 34; Baldo [degli Ubaldi], Alberico [da Rosate], Floriano [Sampieri], and Jacobinus on loc. cit., ‘unwilling’ and ‘testimony’), and their opinion is the one more commonly accepted in universities and law-courts, as Farinacci testifies, supra, number 37. The second part of the conclusion, on crimes which fall outwith the normal legal rules, is clearly common [opinion] and is proved by the beginning of ‘a minor’, Digest, ‘examinations’ [= 48.18.10 preface], on which Marsili comments extensively. (But see [Filippo] Decio, and [Girolamo] Cagnolo, paragraph 2 ‘likewise the Emperors’ on Digest, ‘the various regulations of ancient law’ [= 50.17]; [Girolamo] Giganti, op.cit., question 12, number 4; Schenk, Witnesses, number 13 at about ‘unless it be done’; Farinacci, supra 9, question 58, number 22), and when this testimony has been introduced, because these crimes are so dreadful, under those circumstances, an oath could be demanded of them and they should be tortured, but only in moderation. (Farinacci, question 41, numbers 102 and 103.)

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‘In caput alterius’. A dictionary of legal terms, (Lexicon Juridicum, published in 1615), explains this as ‘putting someone else in danger’, p. 549. Girolamo Cagnolo (1492–1551) was a jurist in Turin. Among other works, he also wrote commentaries on the Codex and the Digest.

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Impuberes sed maiores novem annis, quia iam doli capaces, si Iudicis animus, id fert, et censuerit sibi eos torquendos; toqueri poterunt, et ad denunciandum in criminibus exceptis recipi. Quod torqueri possint virga, ferula vel tormento sibyllorum docet Farinac. q. 41, n. 16, quod hoc a iudicis arbitrio pendeat: Clarus d. q. 24, num, 16, Brun. De indic. et tortu p. 2, q. 4, a n. 16, Capric. decis. 130, n. 55, quod possint recipi, volunt Bart. et Marsil. in d. lib. de minore D. de quaest. glos. in d. lib. inviti., Crottus Tract. de testibus tit. in causis crimin. qui testes admit. n. 70, et ibi Moncada in addit. litt. ϒ et n. 70 et Alberic. De test. rub. quando testes refellantur rat. defect. personae n. 20, et Gigas d. q. 12. Si vero nondum inchoarunt annum nonum, nec torqueri ullo modo, nec admitti unquam poterunt, adiurandum, aut denunciandum. Hoc receptius est, ita post Fran. Marcum Baiardus supra n. 109, qui ad idem allegat Bolognin. et Foller. et Brunum, ad q. 64, n. 67; cum sequ. ratio, quia necdum satis intelligunt quid deponant, ideo iuriiurando, torturae, et nominationi defectus naturalis resistit. Quando minorennis admittitur ad deponendum in ordine torturam, non sufficiet unius testimonium, sed requiritur saltem duorum. De hac re sententias refert, nec tama decidit utra verior: Baiardus add. q. 24, a n. 107, et citat Marsil. in pract. § diligenter. n. 8, loquentem in n. singulari; quod si bene citat, censeo impuberi positum indefinite. Aperte duos requirunt communiter: Alberi. in d. lib. testimonium Grammat. cons. 45, n. 21, Moncada | supra n. 70, ipse Mar-

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In the case of crimes which fall outwith the normal legal rules, however, because pre-pubescent minors older than nine are already capable of guile, it will be possible to have them tortured and hear the information they are laying against the accused. Farinacci tells us they can be tortured with a rod, a cane, or the thumbscrews, (question 41, number 16.)326 This depends on the judge’s decision, ([Giulio] Claro, question 24, number 16; [Francesco] Bruni, Evidence and Torture Part 2, question 4, from number 16; Capricus, decision 130, number 55). That their testimony can be accepted is how Bartolo [da Sassiferrato] and Marsili interpret ‘a minor’, Digest, ‘examinations’,327 and the gloss on ‘unwilling’; [Giovanni] Crotto, treatise on witnesses, heading ‘which witnesses can be given a hearing in criminal cases’, number 70; [Pedro da] Moncada in addition to it under the letter Y, and number 30; Alberico [da Rosate] on witnesses, heading, ‘when witnesses refute an explanation for someone’s inadequacy’, number 20; and Giganti, question 12. But if they have not yet reached the age of nine, they cannot be tortured at all and cannot ever be given a hearing in court, swear an oath, or lay information against someone. This is generally accepted. (See [Giambattista] Baiardi, supra number 109 in which he follows Francesco Marco, and attributes the same opinion to [Lodovico?] Bolognini,328 [Pietro] Follerio, and [Francesco] Bruni in question 64, number 67ff.) The reason is that they do not properly understand what it is they are deponing and therefore their natural deficiency stops them from swearing an oath, being tortured, and naming names. When a minor is given a hearing in court in order to provide evidence which will, in its turn, warrant torture, the testimony of one minor] will not be sufficient. That of at least two is required. [Giambattista] Baiardi refers to the opinions on this subject, but he does not come down on one side or the other, (Additions, question 24, from number 107.) He cites Marsili, Practices, paragraph ‘carefully’, number 8, who talks about a single number, and I think that, if his citation is correct, he has applied it to a pre-pubescent child, without putting a limit on the number. Alberico [da Rosate] clearly requires two, (op.cit., ‘testimony’), as do [Tommaso] Grammatico, advice 45, number 21; [Pedro de] 326

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Paolo Zacchias, (1584–1659), says he found the phrase ‘tormentum sybillorum’ obscure, but his description is consistent with its being that of the thumbscrews. He describes it as being ‘very light torture’, Medico-Legal Questions, (published 1621–1651), Book 6, chapter 2, question 1. Digest 48.18.10 preface and 48.18.15.2. Lodovico Bolognini (1446–1508). There was a Bartolomeo Bolognini (died c.1498) who commented on Frederick Barbarossa’s Imperial Constitution, but it is unlikely he is the person to whom Del Río is referring here.

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sil. in lib. infans col. pen. vers. etiam illud dictum. D. ad leg. Corn. de sicar. et Boer, decis. 261, qui duo ultimi scribunt se sic practicasse, et intelligendi ambo de infantibus saltem doli capacibus. probatur. Primo concl. quia minoris testimonium in nostro proposito aliquid valet et probat: ergo plurium plus valet et probat, ut minimum ad semiplenam probationem, quae ad torquendum sufficit. Deinde unius testimonium si accedat aliud indicium valet ad torturam, sed accedens secundi minorennis testimonium, novum indicium est. Dicitur in q. ad torturam, quia non sufficere duorum testimonia ad condemnationem, licet indicium faciant, putandum. Sic praecise gloss. Bald. et alii in d. lib. inviti specul. et Ioannes And. supra Bart. in d. lib. De minore. et in d. lib. ex libero. § 1 et in lib. 2 § quod observari n. 11, cap. de iur. cal. Gloss. Bart. Bald. Salicet., Angel., Alex. et Ias. in lib. fin. cap. de indign.; quod verum, quoad poenam ordinariam, nam quoad extraordinariam, possent sufficere, et sic admitto contrariam sententiam affirmativam, quae fuit Alberi. in d. lib. in testimonium Marsil. in d. lib. De minore n. 28 et in lib. Infans n. 46. D. De sicar. et in § diligenter sub n. 80. Grammat. cons. 45, n. 21, Farinac. supra n. 33. quaestio xvi An verisimilitudo denunciationis ab uno tantum factae, sit sufficiens adminiculum, ut procedi possit ad torturam? Non puto quaestionem proponi de nominante, cui dumtaxat obstat singularitas, quod sit unus; nam talis et si sit unus, est unus omni maior exceptione, et proinde facit semiplenam probationem; ideo de hoc verisimiliter denunciante, non est dubitandum, esse sufficiens adminiculum. Sed quaestio procedit de singulari cui alii adsunt defectus, utpote quia est minorennis, infamis, etc.

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Moncada, supra, number 70; Marsili himself, ‘an infant’, penultimate column, at about ‘even that word’, Digest, ‘Lex Cornelia on assassins’ [= 48.8.12]; and [Nicolas] Bohier, decision 261. The last two write that this is what they have done in practice, and it should be understood that both are talking about small children who are capable, at any rate, of guile. This is proved first by the conclusion that, in what has been proposed, the testimony of a minor has some worth and does prove something, and so the testimony of more than one has more value and is stronger proof amounting, at the very least, to a half-proof, which is sufficient to warrant torture. Secondly, if the testimony of one [minor] comes near to being another piece of evidence, it is good enough to warrant torture. But if the testimony of a second minor agrees with it, it amounts to another piece of evidence which warrants torture. In [Digest], ‘examinations’, it says, in respect of torture, that the testimonies of two minors are not enough to find someone guilty, although one may think they do amount to evidence. (This is exactly what Baldo’s gloss and others say in [the paragraph] ‘unwilling’ in The Mirror [of Justice], and Giovanni Andrea on Bartolo [da Sassoferrato] on ‘a minor’ and ‘of a free man’, paragraph 1, and paragraph 2, ‘it must be observed’, Codex, ‘swearing an oath because of a slander’ [= 2.58.2.2], number 11; gloss, Bartolo, Baldo, [Bartolomeo da] Saliceto, Angelo [Gambiglioni], Alessandro [Tartagni], and Giasone [del Maino] on the end of Codex, ‘those unworthy’.) This is true as far as the ordinary penalty is concerned, because when it comes to an extraordinary penalty, [two minors] could be sufficient, which is why I acknowledge that the opposite opinion supports this. (So did Alberico [da Rosate] in ‘testimony’; Marsili in ‘a minor’, number 28 and in ‘an infant’, number 46, Digest, ‘[Lex Cornelia]’ on assassins; and in the paragraph ‘carefully’, under number 80; Grammatico, advice 45, number 21, and Farinacci, supra, number 33.) Question 16 Is the likelihood that information laid by only one person may be true sufficient supporting evidence to make it possible to proceed to torture? I do not think that this question is talking about a person who names names when there is only one objection to him, (namely, that he is a single witness), because even if there is only one of him, such a person is, without exception, rather important since he is therefore making half a proof. So, when it comes to this person naming names in a way which is likely to be true, one should have no doubts that his supportive evidence is sufficient [to warrant torture]. The question is, rather, dealing with a single individual who has other deficiencies, such as his being a minor, a person of ill repute, etc.

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Porro sicut inverisimilitudo testimonii plurimum detrahit fidei ad vim eius infrigendam. Nam ubi testantur in verisimilia, numerus non supplet fidem: Farinac. q. 62, n. 329, Mascard. De probat. concl. 1358, n. 13, nec iudex debet credere non verisimilia deponentibus: Innoc. in cap. quia verisimile est de praesump., Marsil. in lib. § in criminibus. n. 35, D. de quaest. et in Rep. rub. de probat. n. 108, quia quod non est verisimile speciem habet falsitatis; adeo ut confessio non verisimilis non noceat confitenti: arg. tex. in lib. 1 § Divus severus et in § si quis ultro D. de quaest. Bald. in lib. si quis in hoc genus cap. de Episc. et cleri. n. 3 Petrus Ancharan cons. 24, col. 1. Sic e contra magnam vim habet verisimilitudo, adeo ut potius credatur paucioribus verisimilia asserentibus: lib. Ob carmen § si testes D. de test. cap. in nostra est. de test., Curtius Iun. cons. 17, n. 6, Socin. Iun. cons. 183, n. 10, lib. 2, multum prodest ut testium defectus suppleatur: Carolus Ruin. cons. 149, n. 6. lib. 5, Deciam. cons. 18, numero 204, lib. 1, Mascard. concl. 944 num. 14, Farinac. q. 47, n. 158, et magnum praestat ad torturam fundamentum. lib. 3. et lib. milites. cap. de quaest., non secus ac ea quae a communiter accidentibus vera sunt Marsil. in § diligenter n. 33, et in sing. 1, ad fin. Sed ista verisimilitudo, quia consideratur potissimum ad hoc ut faciat fidem iudici; minorem vim obtinet, ubicumque magis restricta et coarctata legibus est iudicis potestas. Inde fit ut in hac | quaestione primo distinguendum, inter crimina non excepta et excepta. In non exceptis, in quibus criminosi de sociis non interrogantur: dd. ad lib. fin. cap. de accus., et interrogati fidem non faciunt, verisimilitudo denunciationis factae ab uno, non erit sufficiens adminiculum ad torturam, sicut de

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Moreover, the improbability of a testimony detracts considerably from one’s belief in it, and in consequence, its force will be damaged, because when improbabilities are given in evidence, the number [of witnesses] does not make their testimony more believable, (Farinacci, question 62, number 320; Mascardi, Proofs, conclusion 1358, number 13), and a judge should not believe people who are laying information which is unlikely to be true, (Innocent [iii] in the chapter ‘because when it comes to a presumption it is likely’; Marsili, number 35, on paragraph ‘in crimes’, Digest, ‘examinations’ [= 48.18.1 preface] and counter-argument, heading ‘proof’, number 108), because what is not likely to be true has the appearance of being a falsehood, so much so that a confession which is unlikely to be true does no harm to the person who makes it. (Argument of the text in ‘the divine Severus’ and ‘if someone further’, Digest, ‘examinations’ [= 48.18.1.17 and 48.18.1.27]; Baldo on ‘if anyone against this kind’, Codex, ‘bishops and clerics’, number 3 [= 1.3]; Pietro d’Ancarano, advice 24, column 1). On the other hand, likelihood has great force, so much so that one is more inclined to believe a smaller number of people who say things which are likely to be true. (See ‘because of a spell’, paragraph ‘if witnesses’, Digest, ‘witnesses’ [= 22.5.1 preface and 22.5.21.3]; chapter ‘it is in our power when it comes to witnesses’, [Francesco] Curzio the younger, advice 17, number 6;329 Socini the younger Book 2, advice 183, number 10.) This helps a great deal to make up for witnesses’ deficiencies. (Carlo Ruini Book 5, advice 149, number 6; [Filippo] Decio Book 1, advice 18, number 204; Mascardi, conclusion 944, number 14; Farinacci, question 47, number 158). It also furnishes a solid basis for torture, (passage 3, ‘soldiers’, Codex, ‘examinations’ [= 9.41.8]), and in just the same way things which generally happen by chance are true, (Marsili, paragraph ‘carefully’, number 33 and ‘in an individual case’, towards the end of the passage.) But this likelihood, which is considered to be very efficacious in making a judge trust [the testimony], is less effective whenever laws place a greater restriction or limit upon the power of the judge. Consequently, when it comes to this question, one must first distinguish between crimes which do not fall outwith the normal legal rules and those which do. In those which do not fall outwith the normal legal rules, in which criminals are not questioned about their associates, (see scholars’ comments on the end of Codex, ‘accusations’ [= 9.2]), and those who have been under interrogation do not inspire belief, the likelihood of information laid by a single person will

329

Francesco Curzio (floruit first half sixteenth century) was the most important Paduan jurist during this period. His Consilia were published in two volumes in Venice in 1571.

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infamibus testibus colligitur ex doctrina Baldi in lib. 1, n. 5, cap. de sum., Trin. et Castren. ibid. ante fin. In exceptis vero et privilegiatis criminibus in quibus de sociis interrogatio fit, et infames non arcentur, poterit tam verisimilis esse nominatio et tam bene circumstantiis vestita, ut iudicem quasi certum reddat a denunciato crimen commissum; et huiusmodi certitudinem communiter dd. dicunt ad torturam iudici sufficere: lege Clarum d. q. 64, n. 13, et in terminis de uno teste non omni exceptione maiore Menoch. De arb. iud. q. 84, n. 4, et huc faciunt tradita ab Ozasco Praeside deois. 79, et Bursato cons. 201, ubi fuse scribit de hoc arbitrio iudici concesso praeter ordinem iuris, circa tortura; et hoc ut probabile tenent dd. Patavini. Quoniam vero talis ac tanta verisimilitudo non solet inveniri in indiciis remotis, sed in propinquis idcirco facilius hoc iudici faciendum in his quam illis; propinqua seu proxima est, quae oritur ex indicio propinquo, quod est immediatum delicto, v.g. si testis de ipso delicto commisso deponeret dicens se Meniam in cella clausa, in conventu maleficarum vidisse. Remota vero quae oritur ex indicio, coniectura, signo et praesumptione; non necessario ipsi delicto maleficii cohaerente. v.g. res, verba, opera, quae sapiunt incantationem, ut quod voluit artem magicam aliquem docere, quod damna minatus, quod cum maleficiis conversatus etc. In propinquis ergo indiciis hae facilius usu venit, sed simpliciter si iudex sufficientem verisimilitudinem habere se putet, quia plurimum in his eius arbitrium pollet, non auderem condemnare hoc facientem; nec tamen ad id lubenter illum hortarer. Non pugnant ista cum

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not be a sufficient support to warrant torture, as one gathers from what Baldo says about very young witnesses, (number 5 on Codex, ‘the highest Trinity’ [= 1.1], and [Paolo di] Castro, same place before the end.) But in crimes which are privileged and do fall outwith the normal legal rules, in which [criminals] are questioned about their associates and people of ill repute are not kept at a distance, it will be possible for the naming of names to be so likely to be true, and so well furnished with circumstantial evidence, that the judge can be more or less certain the crime was committed by the person accused of it, and scholars say that this kind of certainty is enough for a judge [to authorise] torture. (Read [Giulio] Claro, question 64, number 13 and—specifically about a single witness for whom no exception can be made on the grounds he is too important [to be questioned]—[Giacomo] Menochio, Cases etc. Book 1, 84, number 4. To this, add what we are told by [Ottaviano Cacherano d’] Osasco, decision 79 and [Francesco] Borsati, advice 271 where he writes at length about this ability, granted to the judge, to make a decision about torture further than is laid down by law. This the scholars from Pavia regard as conclusive.)330 But since such great likelihood is not usually found in circumstantial evidence which is remote [from the crime], but in evidence closely connected with it, it is therefore easier for the judge to make his decision in the latter case than in the former. ‘Closely’ or ‘very closely connected’ refers to what arises from a piece of circumstantial evidence which has a very close connection with the person against whom information has been laid—if, for example, the witness were to offer evidence about an offence he himself had committed, saying that he had seen ‘Maevia’ at a meeting of witches [maleficarum] in an locked room. ‘Remote’, on the other hand, refers to what arises from circumstantial evidence, a conjecture, an indication, a presumption, not necessarily connected with the [particular] offence of harmful magic which has been alleged—for example, objects, words, or actions which smack of incantation because the person wanted to talk about some magical technique, threatened to do damage, and passed his time in practising harmful magic, etc. In the case of closely connected evidence, therefore, this happens quite easily. But if a judge thinks he has information which is sufficiently likely to be true because his decision is, for the most part, a good one, I should not venture to find fault with him for doing this. this. On the other hand, nor would I encourage him to be happy about taking this decision. None of this clashes with what I wrote in Investiga-

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Ottaviano Cacherano d’Osasco (died 1589) was Grand Chancellor of Savoy. His Sacred Decisions of the Senate of Piedmont was published in Frankfurt in 1599.

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traditis a me lib. 5 Disquis. Sect. 3 § ad torturam, illic enim locutus sum generaliter, praescindendo a casu tantae verisimilitudinis, quanta supponitur in erotemate. quaestio xvii An malefici denunciantes, impliciti etiam aliis criminibus, faciant indicium ad torturam maxime quando sunt plures? Una haec quaestionum, in qua duae sunt opiniones contrariae valde probabiles. Una potius authoritate nixa tenentium, altera vero melioribus rationibus confirmata. Plurimi tenuere quod etiam in criminibus exceptis (ut sunt maleficium, haeresis, sodomia etc.) socii criminis, qui plures defectus patiuntur, v.g. quia multis aliis criminibus implicati, etiamsi aliter veritas haberi non posset, quam per illos, nec ad torquendum, nec ad inquirendum, admitti a iudice possint: hoc tenent Alex. cons. 89, n. 11 et 12, lib. 3, Socin. cons. 118, vol. 1, Barbat. cons. 65, vol. 4, Marsil. sing. 118, et cons. 102, Gratus cons. 59, vol. 2, Grammat. cons. 38, et 45, n. 22, et cons. 70, n. 8, et vol. 34, n. 8, Paris. cons. 2, n. 85, vol. 5, cons. 53, n. 76, vol. 4, Gigas. De crim. laes. maiestat. tit. Quomodo et per quos q. 7, n. 7, Roland. cons. 16, n. 20, cons. 24, n. 61, cons. 73, n. 24, 27 et 28, lib. 1, Silvan. cons. 81, n. 15, Bursat. cons. 79, lib. 1, cons. 192, lib. 2, cons. 65, cons. | 70 et cons. 275, lib. 3, Cephal. cons. 65, 74, et 204, Ondoen. cons. 100, n. 18, Rimin. Iun. cons. 113, 644, et 571, Iursin. cons. 81, n. 65, Bertazz. cons. 3, n. 32, Aymon cons. 6, n. 54, Natta cons. 298, n. 6, Menoch. cas. 474, n. 54, Mascard. concl. 1313, n. 12 et 13, concl. 1317, n. 41 et 45, concl. 1359, per totum. Et merito communem vocat Eman. Zoahres in ver. testis inhabilis n. 217, Patavini dd. hanc etiam

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tions Book 5, section 3, paragraph ‘for torture’, because there I was speaking in general terms by hiving off from the case as much verisimilitude as is presupposed in the question. Question 17 Does information laid by workers of harmful magic who are also involved in other crimes provide warrant for torture, most especially when there is more than one of them? This is one of the questions to which there are two perfectly plausible opposite answers, one based more on the authority of those who support it, the other strengthened by better explanations. Most people have considered that even in crimes which fall outwith the normal legal rules, (such as harmful magic, heresy, sodomy, etc.), accomplices in the crime who suffer from more than one deficiency [as witnesses]—for example, because they have been involved in many other crimes—cannot be given a hearing by a judge, or sent for torture, even if the truth cannot be had in any other way. This is the opinion of Alessandro [Tartagni] Book 3, advice 89, numbers 11 and 12; [Bartolomeo] Socini Volume 1, advice 118; [Andrea de] Barbatia Volume 4, advice 65; [Ippolito] Marsili, Individual Cases 118 and advice 102; Gratus Volume 2, advice 59; [Tommaso] Grammatico, advice 38 and 45, number 22, and advice 70, number 8, and volume 34, number 8; Paride [del Pozzo] Volume 5, advice 2, number 85, Volume 4, advice 53, number 76; [Girolamo] Giganti, The Crime of Treason, heading ‘how and by whom’, question 7, number 7; Rolando [della Valle] Book 1, advice 16, number 20, advice 24, number 61, advice 73, numbers 24, 27, and 28; [Lorenzo] Silvano, advice 81, number 15;331 [Francesco] Borsati Book 1, advice 79, Book 2, advice 192, Book 3, advice 65, advice 70, and advice 275; [Giovanni] Cefalo, advice 65, 74, and 204; [Vincenzo] Ondedei, advice 100, number 18; Riminaldi the younger, advice 113, 644, and 571; Jursinus, advice 81, number 65; [Bartolomeo] Bertazzoli, advice 3, number 32; Aimone [Cravetta], advice 6, number 54; [Marco Antonio] Natta, advice 298, number 6; [Giacomo] Menochio, case 474, number 54; [Giuseppe] Mascardi, conclusion 1313, numbers 12 and 13, conclusion 1317, numbers 41 and 45, and the whole of conclusion 1359; and quite rightly in number 217, Emmanuel Suarez calls this the common [opinion] at about ‘an inadmissible witness’. The scholars from Padua also approve this

331

Lorenzo Silvano (floruit sixteenth century) was a patrician from Casale and Professor of local law in Padua and Ferrara.

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probant, nisi excessus in numero defectum suppleat, sed plerique allegatorum non agnoscunt hanc limitationem. Horum dd fundamenta videntur: primo, quia tortura potest supplere unam inhabitualem et non plures. Secundo non posse numero istum defectum suppleri, quia quod est nullum non potest numero suppleri; hic vero istorum testimonium non modo debilitatum est, sed prorsus annullatum, quia tales sunt prorsus inhabiles. Baiardus non his argumentis, sed tam densa nube testium perculsus, videtur admittere hanc sententiam esse veriorem iure scripto, sed in praxi non teneri, nam addit. ad Clari q. 24, a n. 128, postquam dd. multos nominavit, et argumenta illa duo proposuit, haec verba subdit. Sed quicquid sit de iure, veritas est quod consuetudo servat, ut omnes testes cum tortura admittantur, etiamsi mille defectus paterentur. Alias raro socii criminis dictum fidem faceret, quia pauci sunt socii criminis, qui pluribus defectibus non sint notati, et sic delicta remanerent impunita. Ego tamen arbitror, quod tales testes, cum sint magis infames, maiori tortura sint afficiendi, ad eorum dicta convalidandum. De eadem praxi seu consuetudine testatur Clarus, et eam apptobat. q. 21. n. 7 et § falsum n. 4, ubi tamen requirit alicuius adminiculi accessionem; quando allegant propriam turpitudinem, nempe se fuisse subornatos, quando vero Clarus non loquitur de allegantibus hanc suam turpitudinem, illic non requirit ullum aliud adminiculum, ut d. n. 7. Quae est quoque sententia Bossii de eadem consuetudine attestantis: tit. De indic. n. 156. circa fin.: idem tenet Ioseph. Ludovi. Decis. Lucensi. 15, asserens se pluries ita practicasse, quod licet Bertazz. et Roland. impugnare tentarint, “tamen (ait Baiard. §. falsum n. 25) dicant quicquid velint ita servatur et sic vidi, et ego quoque, practicavi.” Eandem sententiam tenent dd. Friburg. cum sequ. tamen distinctione, inter crimina quae sunt ordinarie coniuncta et quasi subordinata, et ea quae ab

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[opinion], as long as an excessive number [of witnesses] is not used to make up for a deficiency. Most of those who adduce it, however, do not acknowledge this limitation. The fundamental points these scholars make seem to be (i) that torture can make up for a single disability, but not for more than one, and (ii) that this deficiency cannot be made up by the number [of witnesses], because what is null and void cannot be made up for by the number [of testimonies]. Under these circumstances, indeed, these people’s testimony is not only weakened, but completely annulled, since such people are entirely disqualified. [Giambattista] Baiardi struck, not by these arguments but by such a dense cloud of witnesses,332 seems to accept that this opinion is quite true in relation to written law, but is not observed in practice, because in his additions to [Giulio] Claro, question 24, from number 128, after [Claro] has named many scholars and put forward those two arguments, [Baiardi] adds the following. ‘But whatever the legal situation, the truth is that customary practice preserves [the habit] of hearing all witnesses under torture, even if they suffer from a thousand defects, because otherwise one could scarcely ever trust what criminal associates say, since there are few criminal associates who are not marked by several defects, and thus offences would remain unpunished. I, however, am of the opinion that since such witnesses are largely disreputable, they should suffer greater torture to validate what they say.’ Claro testifies to the same practice or custom, (question 21, number 7, and number 4, paragraph ‘it is false’), where, however, he requires the addition of some supporting evidence when they mention their own shameful behaviour and, of course, say they were secretly incited into it. But when Claro is talking about those who do not mention their own shameful behaviour, he does not require any other supporting evidence, as in number 7. This is also the opinion of [Egidio] Bossi who attests to the same custom, (Evidence, at about the end of number 156.) Giuseppe Ludovisi thinks the same in his Decisions in Cases from the Rota of Lucca, 15, where he claims several times that this has been his practice;333 and although Bertazzoli and Rolando have tried to attack it, ‘yet’, (says Baiardi, number 25, paragraph ‘it is false’), ‘let them say what they like, [the custom] is preserved like this and I have seen it in practice and done it in practice myself.’ The scholars from Freiburg hold to the same opinion but make the following distinction between crimes which are, in the ordinary way, combined and, as it were, subordinate [to one another], and those which are clearly separate from 332 333

‘Since we are surrounded by such a dense cloud of witnesses’, Hebrews 12.1. Giuseppe Ludovisi (floruit second half sixteenth century). His Decisiones Causarum Rotae Lucensis was published in 1573.

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in vicem plane separata sunt, nec habent connexionem prioris generis esse censent cum maleficio, crimina haeresis, laesae Maiestatis divinae, apostasiae Sodomiae, parricidii, homicidii, etc. in his tenent affirmativam posterioris, cum maleficio videri periurium, latrocinium, raptum, furtum, etc. et in his tenent negativam. Quoad priora res est multo evidentior; idem tamen teneo etiam quoad posteriora. Nam argumenta huius affirmativae probant aeque de utrisque et dd. pro negativa etiam prius membrum impugnant, et aeque parum probant de his atque de illis. Probatur ergo concl. nostra affirmativa indistincte. Primo quia placuit Bossio, Claro, Ludovico, et Baiardo qui omnes in subselliis et iudiciis exercitatissimi. Secundo, quia practicatur, ut dicunt iidem, quia est, utilior reip. et iustitiae. Quarto, argumeti Friburgensium, quae sunt: 1. quia lex criminosos et infames ad testimonium in criminibus exceptis ferendum admittens, inter eum, qui uno, vel pluribus criminibus, involutus, aut ratione criminum saepius infamia notatus, non distinguit: igitur nec nos distinguere debemus | l. non distinguemus D. de recept. qui arbit. Deinde quia malefici plurimis iisque horrendis criminibus ut plurimum sunt innodati; quod si aliis criminibus maleficos testes carere esset necesse, nullus unquam esset testis idoneus. Tertio crimen maleficii non impedit, quin testis socii contra socium testimonium valeat: ergo nec alia leviora crimina cum maleficio coniuncta impedimentum adferre possint. Caeterum (quod valde notandum) fundamentum partis adversae aequivoco paralogizat. Nam, primo quae positivi iuris sunt, absolute, accipit quasi etiam omnis essent iuris. Secundo falsum supponit a tortura non suppleri nisi unum defectum; potest enim supplere plures defectus iuris positivi, quia praesumptio nata ex tortura est iuris gentium, ut et ipsa tortura in genere ad verum exsculpendum, non a iure civili, sed a gentium iure defluxit, licet modi quaestionum hi vel illi sint iuris positivi; impedimenta vero istorum testium, mere sunt iuris positivi, quoad hoc ut infami plurium criminum nihilomino cre-

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one another. They think that the crimes of heresy, treason against God, sodomy, parricide, and murder, etc., combined with the practice of harmful magic, belong to the first kind and, as far as these are concerned, they answer the question with ‘yes’. They think that perjury, robbery, rape, theft, etc., combined with the practice of harmful magic, seem to belong to the second kind and, as far as these are concerned, they answer the question with ‘no’. The situation with regard to the first set [of crimes] is much clearer, but I am of the same opinion as far as the second set is concerned, too. The reason is that the arguments in favour of the affirmative are equally applicable to both sets, and scholars who argue in favour of a negative also attack the first set and approve the second as little as they do the first. My affirmative conclusion, therefore, makes its approval without distinguishing between the two, (i) because Bossi, Claro, Ludovisi, and Baiardi, who are all highly experienced in law-courts and judicial investigations, think it is right; (ii) because this is general practice, as these same [authorities] say; (iii) because it is more advantageous to the state and to justice; (iv) because of the arguments of the scholars from Freiburg, which are (1) that the law allows criminal and disreputable types to give evidence in crimes which fall outwith the normal legal rules and does not distinguish between someone who is involved in one crime or more, and someone who is quite often notorious because of his crimes, and therefore we should not distinguish between them, either. (‘We shall not distinguish’, Digest, ‘those who have been heard in court and given a decision’ [= 4.8.32 preface]); (2) because practitioners of harmful magic are usually implicated in very many of these dreadful crimes and if it were necessary to have as witnesses workers of harmful magic who were free from other crimes, none of them would be a suitable witness; (3) the crime of practising harmful magic does not stop one associate from giving valid evidence against another. Therefore, other fairly unimportant crimes, when conjoined with the practice of harmful magic, cannot form an impediment. However—and this should be noted very carefully—the basic principle of the opposite point of view is falsely argued because of an ambiguity. First, it accepts without question the provisions of man-made law as though they were also those of every kind of law. Secondly, it makes the false supposition that torture can make up for only a single deficiency. But it can make up for more than one deficiency in man-made law, because a presumption produced by torture belongs to the law of nations, just as torture itself, generally intended to dig out the truth, flows not from civil law but from the law of nations, although this or that restriction upon questioning belongs to man-made law. The things standing in the way of these witnesses’ [giving evidence] belong simply to man-made law, in as much as no belief at all is given to someone who has a bad reputa-

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datur; naturalis enim ratio solummodo dictat, ut minus credatur istis, quam uno tantum crimine irretitis. Distinguendum itaque inter ea quae iure positivo reddunt inhabilem testem, et eius testimonium annullant, et ea quae iure naturali vel gentium id faciunt. Priora sic inhabilitant et annullant, ut adhuc possint numero, vel tortura suppleri et perfici, quando ex numero aut tortura iure gentium praesumitur verisimilitudo. Posteriora vero simpliciter et omnino sic inhabilitant et annullant, ut neque numero nec tortura queant unquam perfici vel suppleri; probatur distinctio ex simili de testimonio minorennium proximorum infantiae, et proximorum pubertati supra q. 15. Iam expedita est responsio ad argumenta contraria. Ad primum, tortura potest supplere unum defectum et non plures; negatur plane, nam si defectus sit iuris naturalis, nec unum poterit nec plures. Si vero sit iuris positivi, ordinarie quidem supplet unum aliquando tamen poterit tam esse gravis ut suppleat plures. Ad secundum, quod nullum est iure positivo, non posse suppleri numero, falsum est, nam ex praxi et consuetudine (ut dixi) suppletur, et favor iustitiae hoc exposcit, neque in exceptis iudex coartatur ad huius iuris regulas. Quod vero nullum est iure naturali, sive primario, sive secundario, conceditur, id n. non posse suppleri, sed negantur isto iure huiusmodi denunciationes annullatae; sunt tantum debilitatae. quaestio xviii An extraiudicialis revocatio infirmet iudicialem denominationem adeo ut non faciat amplius indicium ad torturam? De hac re Doctores certant, et adhuc sub iudice lisest quaeritur: Non tam de extraiudiciali facta priusquam reus est condemnatus; de hac enim constat eam potius causam praebere, ut iterum torqueatur; receptum enim est, si in prima

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tion because he has committed several crimes. Natural reason alone dictates that one have less belief in people who have been entangled [in several crimes] than in someone who has been entangled in only one. Therefore, one needs to distinguish between those things which, according to man-made law, render a witness unfit [to give evidence] and annul his testimony, and those which do so according to natural law or the law of nations. The former disable and annul in such a way that [the defects] can still be made good and filled out by [having] a number [of witnesses] or by torture, since by the law of nations the plausibility [of evidence] is presumed to come from the number or torture [of witnesses]. The latter, however, simply and entirely disable and annul in such a way that [deficiencies] can never be filled out and made good by the number or torture [of witnesses]. This distinction is proved from something similar in the case of the testimony of minors who are still infants and those who are very near the age of puberty, (supra, question 15.) I am now ready to answer to the contradictory arguments. To the first: ‘torture can make up for one defect, but not more than one.’ The answer to this is clearly no, because if the deficiency is one of natural law, it will not be possible [for torture] to make good one, or more than one. If, however, the deficiency is one of man-made law, in the ordinary way [torture] does not make good one [deficiency], but sometimes it will be possible to be so severe that it makes good several. To the second: it is not true that, according to man-made law, no [defect] can be made good by the number [of witnesses]. It is made good, as I said, in accordance with practice and custom. The [artiality one shows for justice demands this, and in cases which fall outwith the normal legal rules, a judge is not restricted by regulations laid down by this law. I do concede, however, that something which is null and void according to natural law, whether primary or secondary law, cannot be made good by the number [of witnesses]. But I deny that information of this kind laid before a court is annulled by this law. It is simply weakened by it. Question 18 Does the extra-judicial withdrawal of a name which has been given judicially weaken the case for proceeding to torture? Scholars fight about this, and the dispute is still sub judice. The question is not so much about what the accused has done extra-judicially before he has been found guilty, because where this is concerned, it is agreed that it furnishes a reason to have him tortured again. It is generally accepted that if, during

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quaestione maleficium confessus sit, vel aliquem denunciaverit; et non vult sequenti die confessionem vel denunciationem suam ratificare, dicatque se vi quaestionis victum falsa dixisse; receptum, inquam, talem absque novis indiciis iterum equuleo imponi posse, ut in confessione perseveret: Lege Simancam et alios, quos sum secutus lib. 5, Disqu. sect. 99, vers. quad iterationem. lit. ff. et statuitur in Carolina | art. 57, constat etiam huiusmodi revocationem non factam a certo mori, non esse attendendam: ut bene post Baddum Marsil. cons. 79, vol. 3 et in pract. § restat. n. 16 et 17. Dubium potius est de revocatione extraiudiciali post sententiam mortis reo denunciatam, puta factam tempore confessionis vel Eucharistiae. Nam tunc elidi praecedentem alterius nominationem tenent nonnulli: Mars. in d. § restat. n. 12, Bursat. cons. 201, n. 148, et Farinac. q. 46, n. 70. Horum dd. pace puto tenendum esse contrarium, quia nec retractanti in ipso patibulo, si nolit, iudex credere tenetur, ut ostendam. Si vero in via ad supplicium, vel in ipso supplicio revocet confessionem suam de se, constat revocatione contempta omnino adhuc puniendum: ex Carolina art. 91, et dd. ut Maschar. De probatio vol. 1, conclusio 353, n. 23, Binsfeldius in lib. 7, cap. de malef. et mathema. quaestione ultima; quia delictum per torturam confessum, et ad bancum ratificatum, censetur legitime probatum. Quod si in via vel in patibulo revocet denunciationem de aliquo factam in tortura, et ad bancum iuris ratificatam, vel aliter ut fieri in partibus illis consuevit; tunc quidam volunt adeo elidi dcnunciationem iudicialem praecedentem, ut ex ea nullo modo reus torqueri possit: per tex. in lib. D. Marcus D. ad Syllan. tenent etiam in crimine haeresis, et in criminibus assassinii, veneni et aliis occultis, Marsil. cons. 109, numer. 31, et in pract. in § restat ad fin. post Iserniam., Grammat. decis. 56, n. 11, voto. 3, n. 15, voto 11, num 17, Decian. cons. 18, n. 1, et fuit Farin. sup. n. 73, et hanc tutiorem vocant Patavini. Ratio quia moriens

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his first torture-session, he has confessed to practising harmful magic, or has laid information against someone, and is not willing to ratify his confession or denunciation the following day, and says he has told lies because he was overcome by the force of the torture, it is generally accepted, I say, that he can be put on the rack again, without fresh evidence, so that he can persevere in his confession. (Read [Diego de] Simancas and the others I followed in Investigations Book 5, section 99, at about ‘as for repetition’, letters ff, and what is laid down in the Carolina [Constitution], section 57.) It is also agreed that one should not pay attention to a withdrawal of this kind when it has not been made in the face of certain death, as Marsili, following Baldo, rightly says in Volume 3, advice 79 and in The Practice [of Criminal Trials], paragraph ‘there remains’, numbers 16 and 17. There is rather more of a doubt when it comes to an extra-judicial withdrawal after sentence has been passed against the accused, that is, when it is made at the time of his confession or receiving the Eucharist, because several people think that under those circumstances his earlier naming of someone is annulled. (Marsili in the paragraph ‘there remains’, number 12; [Francesco] Borsati, advice 201, number 148; and Farinacci, question 46, number 70.) Pace these scholars, I am of the opinion one should think the opposite because, as I shall point out, a judge is not obliged to believe someone who retracts what he has said on the gibbet itself, if he does not wish to do so. But if he retracts his confession about himself while he is on the way to execution or during the course of the execution itself, it is generally agreed he should still be punished and his withdrawal ignored—see the Carolina Constitution, article 91 and scholars such as [Giuseppe] Mascardi, Proofs Volume 1, conclusion 353, number 23; [Peter] Binsfeld, Confessions of Workers of Harmful Magic and Astrologers 7, last question—because it is considered that an offence confessed under torture and ratified in court is proven. If, while he is on his way to the gibbet or on the gibbet itself, he withdraws the information he has laid against someone under torture, and which he ratified in court, or it has been the custom to do things differently where he comes from, then a number of people think the information the accused laid judicially earlier on is annulled, with the result that this means he cannot be tortured under any circumstances. (They rely on the text ‘the late Marcus’, Digest, ‘the Silanian decision of the Senate’ [= 29.5.2], even in regard to the crime of heresy and assassination, poisoning, and other secret crimes; Marsili, advice 109, number 31 and, following [Andrea da] Isernia, Practice, the paragraph ‘there remains’, at the end; [Tommaso] Grammatico, decision 56, number 11, verdict 3, number 15, verdict 1, and number 17; [Tiberio] Deciani, advice 18, number 1.) This was also Farinacci’s opinion in number 73, and the Paduans

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praesumitur non mentiri, et facit indicium inncenntiae pro reo: Bald. cons. 25, col. 2, vol. 1. Adverte, lector, huic rationi me ex Binsfeldio iam respondisse dict. lib. 5. sect. 5. n. 5, quae velim legas; nunc addo facere indicium innocentiae pro reo, non nisi propter illam praesumptionem, quod moriens praesumitur non mentiri. Si magni facienda ista praesumptio, valere deberet ad exculpationem sui ipsius, ad quod iam ostendimus nihil valere, sed de se non praesumi verum dicere, ut nec de proximo, si iam moriturus aliquid in tertii praeiudicium extraiudicialiter dicat, nec enim pro vero habetur: l. si quis in § si quis moriens D. ad Sylan. Ang. in lib. Mater. cap. de calumniat., Alex. cons. 14, lib. 3. Ias. in lib. 1, cap. comm. de legat., Cephal. cons. 276, n. 14, Menoch. cons. 39, n. 44, Farinac. q. 34, n. 3, post Boss. De indic. n. 188, Alcia. reg. 3, praesumt. 4, nisi huic assertioni efficaces adessent coniecturae, Curt., cen. cons. 70. Cravet. cons. 6, numero 53. Igitur ista praesumptio per se valde levis est; multi enim moriuntur haud multum de anima solliciti, ut quotidiana experientia docemur. Secunda opinio est, si fuit nuda inculpatio seu nominatio sine ullis adminiculis, hac revocatione ipsorum denunciationem plane elidi, si adsint adminicula non elidi: haec videtur sententia esse Marsi. in d. § restat in fi., Mascar. libro 3 De probat. concl. 1130, numer. 14, Bursati cons. 201, n. 14, lib. 2. Riminaldi Iun. cons. 420, n. 17, lib. 4. Si haec sententia supponeret in posteriori membro elidi ipsam denunciationem, sed manere integra illa adminicula foret eadem cum Farinacii sententia s. n. 77, sed tunc ad propositum non esset, nam hoc extra | controversiam est: in dubio nostro agitur de sola denunciatione iudiciali praescindendo ab adminiculis, et ea opponitur secundum se revocationi extraiudiciali. Aliud ergo supponit ista sententia; nempe quod ista adminicula moraliter sic cum denunciatione concurrendo in illam influant, ut eam reddant longe validiorem et efficaciorem ad persuadendum, quam per se sola foret, quod concedo; neque id Farinacius advertit, et ideo non ausus fuit illi simpli-

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call this the more reliable [opinion]. The reason is that it is presumed a dying person does not lie, and that this provides an indication that the accused is innocent. (See Baldo Book 1, advice 25, column 1.) Notice, Reader, that my reply to this argument, (op.cit. Book 5, section 5, number 5), is based on Binsfeld, and I should like you to read what I have said there. I add here that it provides an indication of innocence as far as the accused is concerned only because of the presumption that a dying person is presumed not to lie. If this presumption were worth anything, it ought to be effective in exculpating him, but I am now demonstrating that it does not do so at all. He is not presumed to tell the truth about himself, just as he is not presumed to be telling it about his neighbour if he says something extra-judicially to the prejudice of a third person, because it is not considered to be true—‘if anyone’ in the paragraph ‘if anyone who is dying’, Digest, ‘the Silanian decision of the Senate’ [= 29.5.3.1]; ‘mother’, Codex, ‘slanderers’ [= 9.46.2 preface]; Alessandro [Tartagni] Book 2, advice 14; Giasone [del Maino] on 1, Codex, ‘things which are common to legacies’ [= 6.43]; [Giovanni] Cefalo, advice 276, number 14; [Giacomo] Menochio, advice 39, number 44; Farinacci, question 34, number 3 following [Egidio] Bossi, Evidence, number 188; [Andrea] Alciato, rule 2, ‘it is presumed’—unless there were strong conjectures to support this assertion, ([Francesco] Curzio the elder, advice 70; [Aimone] Cravetta, advice 6, number 53). Therefore, this presumption is, of itself, very slight because many people die without caring much about their soul, as daily experience tells us. The second opinion is that if inculpating or naming someone is done purely and simply, without any supporting evidence, withdrawal clearly cancels the information these people have laid, and that if there is supporting evidence, it does not. (This seems to be Marsili’s opinion in the paragraph ‘there remains in the end’; [Giuseppe] Mascardi, Proofs Book 3, conclusion 1130, number 14; [Francesco] Borsati Book 3, advice 271, number 14; Riminaldi the younger Book 4, advice 420, number 17.) If this opinion were to suppose that the denunciation is annulled in its second element, but that the supporting evidence remained intact, it would be the same as that of Farinacci, (supra, number 7.) Under those circumstances, however, it would not be relevant to the first premise because this is beyond argument. The doubt I have about separating judicial withdrawal and making it stand alone from any supporting evidence is that, according to itself, this withdrawal is falsified by being withdrawn extra-judicially. Therefore, this opinion supposes something else, namely that supporting evidence, along with a denunciation which is in agreement with it, characteristically influences [the opinion] in such a way that it renders it stronger and more effectually persuasive than it would be simply by itself. This I concede. Farinacci did not notice it and therefore he did not venture to give

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citer assentiri. Igitur eam, quatenus fatetur, si adsint alia adminicula, denunciationem non elidi, verissimam iudico, sed quatenus vult elidi, si non adsint eam non sequor; versamur enim (ut dixi) in casu formalis comparationis inter denunciationem iudicialem et revocationem extraiudicialem, et praescindimus ab aliis indiciis et adminiculis, praesupponentes denunciationi nullum alium defectum accidere, quam quod sit revocata et constat denunciationem plurium validam esse posse ad torturam, etiamsi alia desint adminicula. Quocirca haec opinio media licet prae se ferat equitatem, parum tamen habet soliditatis. Sit conclusio: Quandocumque post sententiam mortis ei denunciatam, reus revocat denunciationem suam; iudici arbitrarium est, adhuc credere denunciationi, et cunctis perpensis statuere cur velit stare inculpationi an exculpationi, et verissima est sententia tertia tenentium in rigore per huiusmodi revocationem non tolli legitimam denunciationem. Hanc tenuerunt Binsfeld. et cum eo facultas Iuris et Theologiae Ingolstadiensis in scripto suo ad serenissimam, et omni virtutum genere laudatiss. Guilhelmum Bavariae ducem, anno 1590, et pro ea multa adducit argumenta Marsil. d. § restat fere per totum, et Mascard. supra n. 13, equidem non paucis eam in firmavi d. sect. 5, n. 5, nec muto. Observo utrimque esse praesumptionem; pro revocatione est praesumptio, quod non mentiatur. Pro denunciatione eadem militat, quia tortura eandem inducit, et fortior est ista, quia postea ad bancum ratificata. Confirmatur, quia accepta sententia solent rei mente valde conturbari mortis quadam praeoccupatione. Praeterea hoc praetextu possent plurimi nocentes meritas poenas evadere confessariis aut aliis subornatis ad extorquendam morituro talem revocationem, vel ad eam sponte confingendam idque prece, praetio, importunitate, ut fit. Et ideo nec graves iudices hac in re solent aut debent stare dictis confessariorum; nec circumspecti confessarii solent in vulgus tales exculpationes spargere, gnari schandalum certum, fructum vero incertum fore. Denique non possum mihi persuadere plus fidei deferendum illi huiusdi revocationi extra-

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it his unreserved approval So, my judgement is that information laid against someone is entirely true, (seeing that he is making a confession), and is not annulled if it is accompanied by other pieces of supporting evidence. But I do not agree that it is annulled the way [Farinacci] means if there is no supporting evidence because, as I have said, I am concerned with the case of a formal argument between judicial denunciation and extra-judicial withdrawal of it, and I separate [the denunciation] from other disclosures and pieces of supporting evidence, on the presupposition that the denunciation has no defect other than that it is open to be withdrawn. There is also general agreement that information laid by more than one person is strong enough to warrant torture, even if other supporting evidence is missing. Consequently, even though the half-way opinion appears to be fair, there is little substance to it. My conclusion is that whenever an accused withdraws his denunciation after he has been sentenced to death, it is up to the judge to decide whether he still believes the denunciation and, after weighing everything carefully, to determine why he should be willing to accept the charge or the exculpation of [the individual it names], and that the third opinion of those who believe a denunciation made strictly in legal form cannot be annulled by this kind of withdrawal is perfectly correct. Binsfeld believed this, as did the Faculties of Law and Theology in Ingolstadt in their written [advice] of 1590 to the most serene Wilhelm, Duke of Bavaria, a man most deserving of praise for all his virtues. Marsili adduces many arguments in support of this, as does Mascardi, (supra, number 13.) As far as I am concerned, I disproved it with not a few [arguments] in section 5, number 5, and I am not changing my mind. I notice that there is presumption on both sides. Favouring withdrawal is a presumption that it is not the kind of thing one lies about. That same [presumption] fights on the side of denunciation, because torture brings it before a court and it is stronger later on, once it has been ratified in court. This is confirmed because, once sentence has been passed, those who have been convicted are usually very confused as a result of their being preoccupied with death. Very many guilty people use this as an excuse to escape their well-deserved punishments, too, and suborn their confessors and others to extort such a withdrawal from the person who is about to die, or by entreaty, bribery, or importunity, to get someone to make it up of his own accord. Consequently, judges who take their job seriously do not usually, and should not, have confidence in what confessors say in this situation, and confessors who have their wits about them usually dismiss such exculpations, recognise a scandal when they see one, and know that it would bear unreliable fruit. Lastly, I cannot persuade myself that anyone should have more faith in that extra-judicial withdrawal than in a judi-

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iudiciali, quam iudiciali legitimae denunciationi, cum pro hac semper militet iuris firma praesumptio. quaestio xix Quando nihil invenitur de instrumentis maleficii, an denunciatio plurium per hoc elidatur, ita ut non amplius praebeat indicium ad torturam? Licet inventio instrumentorum sit signum et efficax argumentum adversus maleficos, sicut de monetariis et furibus certum est: Hippol. Mars. in lib. qui falsam D. de fals. n. 114, et infra Decian. In criminal. lib. 7, cap. 26, n. 6, et dicit constitutio Ca|rolina Binsfeld. in lib. fin. cap. De malefic. et mathemat. Tamen ex non inventione non potest colligi idoneum argumentum in contrarium, quia non ex sola inventione instrumentorum crimen hoc probatur, sed ex aliis quosque multis, ideo ut argumentum procedat deberet esse signum convertibile, et proprium quarto modo. Idcirco bene Ingolstadienses supra et Friburgenses responderunt negative, quibus assentior; sicut enim indicia possunt valere sine denunciatione, sic denunciatio sine indiciis, nam licet invicem corroborent, ab invicem tamen non dependent, et separari possunt. Quam facile versipelles istae possunt indicia perdere, abscondere, removere? quaestio xx An leviora indicia sufficiunt ad torturam in criminibus non exceptis? Si solas dd. sententias spectemus, ambigamus necesse est, adeo diversa responderunt; saltem quoad loquendi modum, nam in re fortassis non tanta dissensio est; quid temendum censeam satis explicui lib. 5, disquisit. sect. 3.

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cial, legally made denunciation, since a firm presumption of legality is always fighting on the side of the latter. Question 19 When one does not find any instruments of harmful magic at all, does this annul the information laid by several people, in such a way that it no longer furnishes a warrant for proceeding to torture? Although the discovery of instruments is a sign and an effective argument against workers of harmful magic, just as [the discovery of their tools] is a sure sign in the case of forgers and thieves—Ippolito Marsili on ‘someone who .... false coinage’, Digest, ‘Lex Cornelia on false coiners’, [= 48.10.19. preface], number 114; and infra, [Tiberio] Deciani, Criminal [Practice] Book 7, chapter 26, number 6. The Carolina Constitution says this as does [Peter] Binsfeld at the end of part 1 of Confessions of Workers of Harmful Magic and Astrologers—a satisfactory argument cannot be deduced from not finding instruments, because (i) this crime is not proved simply from the finding of instruments (ii) but from all the many other [indications]. Therefore, for the argument to get anywhere, (iii) the sign ought to be capable of being used for something else, and (iv) belong [to the accused]. So, the scholars from Ingolstadt and Freiburg (supra) were quite right to reply ‘no’. I agree with them because just as evidence can be valid without a denunciation, so can a denunciation without evidence because, although they reinforce one another, they do not depend on one another and can be separated: and how easily these shape-changing women can destroy, hide, and remove evidence! Question 20 Is fairly slight evidence sufficient to warrant torture in crimes which do not fall outwith the normal legal rules? If we look simply at the opinions of scholars, we shall inevitably be uncertain, so different were their replies to the question, at least as far as their way of expressing them is concerned, because in fact perhaps the disagreement between them is not so great. What I think one’s opinion should be, I have explained in Investigations Book 5, section 3.

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Non quaeritur an liceat ex non legitimis et insufficientibus indiciis procedere? Sed an in hoc crimine indicia leviora sufficientia censeantur. Et levia hic vocamus, non secundum se, aut absolute loquendo, sed quae comparative seu relative, respectu eorum quae in criminibus non exceptis requiruntur, levia videantur, et idcirco comparatione istorum sunt leviora, quam in his requisita; non vero quae sint leviora seu minus sufficientia, quam ius aut natura criminis requirat. Hoc posito, Respondetur affirmative, quia in his criminibus magis expedit reip. leviora admitti indica, cum sint occultiora et difficilioris probationis crimina, et digniora quae citius et gravius puniantur. Idem responderunt Ingolstadienses et Friburgenses dd. et etiam Patavini, a quibus optime Bald. in lib. quicumque §25. cap. de fugitiv. serv. n. 25, explicatur, ut seipsum explicat in lib. nemo 3, n. 3, cap. de episc. audient., nempe quod in his iudex animosior et promptior debeat esse ad torturam, quae est sententia communis: Ias. in lib. 4 § si ibi indicium. n. 4 D. de condict. ob turp. caus., Suzar., Marsil., Grammat., Cason., Clar., Carrer., Corrad., Boss., Brunum, Ponticellam, et alios referunt et seqq. Roland. cons. 7, n. 5, et 7, lib. 1., Osascus Decis. 79, n. 10, Tiberius Dec. d. cons. 18, n. 54, et Farinac. q. 37, n. 150. Quia semper, in his quae difficilem habent probationem, leviores probationes, etiam ad condemnandum sufficiunt: lib. non omnes § a barbaris D. de re militat, fuse Bapt. Plotus de in lit. iuran. § 4, n. 22. Unde apparet satis temere quendam consulentem affirmasse, quodam de hac re discursu, quod aequalis sollicitudo, et indagatio et probatio in excep-

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The question is not whether it is permissible to proceed [to torture] as a result of evidence which is illegal and insufficient, but whether fairly slight evidence in respect of this crime is sufficient; and here I am using the word ‘slight’, speaking [of evidence], not just in respect of itself, but in relation to the kind of things which—comparatively or relatively in respect of what is required in crimes which do not fall outwith the normal legal rules—appears to be slight, and therefore in comparison with those [crimes which do fall outwith the normal legal rules] is slighter than what is required in relation to those crimes, but not slighter or less sufficient than the law or the nature of the crime requires. Now that I have made this point, my answer to the question is ‘yes’, because in these crimes it is more advantageous to the state that slight evidence be given a hearing in court, since crimes which are somewhat secret and quite difficult to prove are worthier of being punished more quickly and more severely. The scholars from Ingolstadt and Freiburg, and from Padua, too, have given the same answer, and have explained it very well with reference to Baldo on ‘whoever’, paragraph 25, Codex, ‘fugitive slaves’ [= 6.1.4 preface], number 25 and, as is self-explanatory, ‘no one’, Codex, ‘an episcopal audience’ [= 1.4.3 preface], because, of course, in these cases the judge should be bolder and readier [to proceed] to torture. This is the general opinion. (Giasone [del Maino] on ‘if I give you evidence’; Digest, ‘restitution on account of a disgraceful or unjust reason’ [= 12.5.4.4].) [Guido da] Suzzara, [Ippolito] Marsili, [Tommaso] Grammatico, [Francesco] Casoni, [Giulio] Claro, [Lodovico] Carerio, [Giovanni Battista] Corradi,334 [Egidio] Bossi, [Francesco] Bruni, and Ponticella also mention others, and Rolando [della Valle] Book 1, advice 7, numbers 5 and 7 follows them, as do [Ottaviano Cacherano d’] Osasco, decision 79, number 10; Tiberio Deciani, advice 18, number 54, and [Prospero] Farinacci, question 37, number 150. The reason is that, in cases which are difficult to prove, fairly slight proofs are always sufficient, even to find [the accused] guilty. (See ‘not everyone’, paragraph ‘from foreigners’, Digest, ‘soldiering’ [= 49.16.5 preface]. In his Swearing an Oath in Support of an Accusation, paragraph 4, number 22, Battista Ploto discusses this at length.)335 Consequently, it looks as though one of those involved in the consultation was rather rash to answer ‘yes’ in one of the discussions of this subject, because an equal amount of care, investigation, and proof is required in cases which fall 334 335

Giovanni Battista Corradi (c.1530–1606) was a Dominican and published Answers to Almost Any Kind of Question of Conscience in 1596. Giovanni Battista Ploto or Ploti (floruit sixteenth century) was an advocate in Novara. His Tractatus de in Litem Iurando was published in 1559.

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tis, et non exceptis requiratur: Fateor in utrisque necessariam diligentiam iudici adhibendam, sed nego in utrisque eodem modo et termino hanc necessitatem circumscribi; nego in hac indagatione criminis excepti omnia illa censeri necessaria, quae in non excepti criminis indagatione necessaria reputantur. Ad torturam sufficit iudici habere indicia, ex quibus fortiter opinetur denunciatum esse reum; poterit autem facilius id opinari in exceptis, quam in non ex|ceptis, quia crimina illa solent esse occultiora. Praeterea distinctio, quam adiicit ille consulens inter forum fori, et forum poli, ut videlicet iudex in foro poli (qui est confessarius) proclivior esse debeat ad credendum poenitentem esse ad finem culpae; in foro fori iudicem debere procliviorem esse ad credendum quod reus immunis a delicto. Haec inquam disserentia est reiicienda, ut nulla. Nam in foro poli, quoad hanc credulitatem, nulla est differentia inter crimina excepta et non excepta, gravia et non gravia, quia in omnibus aeque et simpliciter iudex tenetur credere reo ipsi pro se aut contra se loquenti. In foro fori nunquam tenetur soli reo pro se dicenti credere, et hic excepta a non exceptis distinguntur, et in quaestione agitur de credendo non ipsi reo, sed tertio illum denuncianti. Sed instat, quoad hoc inter excepta et non excepta nullum adhuc esse discrimen; probant id aliquot textibus: nempe cap. accusatus § licet etc. in favorem fidei. de haeret. in 7. Respondeo quod d. §. licet, nec ad rem facit, nec si facerent ad rem, nobis, sed illis obesset. Non facit ad rem, quia illic non agitur de levitate indiciorum, sed de periuri testis admittenda revocatione, nec in textu illo deciditur, vel ex eo potest colligi, quod in quavis reorum excepti criminis inculpatione, debeat apparere manifestis indiciis, quod tales zelo fidei moveantur. Repugnat autem tex. parti illum proferenti, quia diserte probat, in crimine excepto, quoad iudiciarium ordinem contra communis iuris sancita procedi et etiam periuri testimonium aliquando

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outwith the normal legal rules and those which do not. I acknowledge that a judge should bring the required carefulness to both, but I deny that the necessity to do so in both is confined by the same restriction and limitation. I deny that everything which is thought to be necessary in a crime which does not fall outwith the normal legal rules is considered necessary in the investigation of a crime which falls outwith them. It is sufficient to warrant torture if a judge has evidence from which he strongly opines that the person against whom the information has been laid is guilty. But it will be easier for him to do this in cases which fall outwith the normal legal rules than in those which do not, because the former crimes are usually ones which are quite well hidden. Moreover, the distinction which the consulting party I mentioned draws between a court of law and the court of conscience—so that, for example, the judge in the court of conscience, (i.e. one’s confessor), ought to be more inclined to believe that the accused is penitent once he has accepted blame, and that the judge in a court of law should be more inclined to believe that the accused has not committed the offence at all—this differentiation, I say, should be rejected as non-existent. In the court of conscience, as far as this differentiation is concerned, there is no difference between crimes which fall outwith the normal legal rules and those which do not, between serious and non-serious [crimes], because in all of them the judge is obliged to believe the accused impartially and straightforwardly while he is speaking for or against himself. In a court of law, he is never obliged to believe the accused when he is speaking on his own behalf, but a third person who is laying information against him. [The judge], however, insists that there is still no distinction, as far as this is concerned, between crimes which fall outwith the normal legal rules and those which do not. (They prove this— would you believe!—by reference to several texts—the chapter ‘the accused’, the paragraph ‘it is permissible’, etc. ‘to the advantage of the Faith’, and ‘concerning heresy’ in the seventh decretal.) My answer is that the paragraph ‘it is permissible’ has nothing to do with it, and if it did it would not hurt my case, but theirs. It has nothing to do with it because the passage in question does not deal with slightness of evidence, but with whether its withdrawal by a perjured witness is admissible in a court of law. Nor can one decide or conclude from that text that, in any accusation brought against persons in relation to a crime which falls outwith the normal legal rules, this should be obvious, because of clear evidence that the people bringing it are moved by zeal for the Faith. The text, however, opposes the party which is putting it forward, because it distinctly proves that, in a crime which falls outwith the normal legal rules, when it comes to judicial procedure, this is done contrary to the rules laid down by common law, and that evidence is sometimes heard even from a perjured individual,

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recipi (quod unum pro nobis); et quidem id receptum in fidei favorem, ut facilius heretici convincantur et poenas luant (hoc alterum pro nobis). Unde merito intulerim, quod cum strigum crimen cum haeresi coniunctum sit, et in eius persecutione eadem obtineant; etiam in nostro casu ut striges facilius convinci et puniri queant; iudici in fidei favorem permitti, non attendere ad ordinem iuris, quando de excepto crimine lis instituta. Ex cap. in fidei favorem, solummodo probatur, ut complices in causa haeresis ad fidei testimonium admittantur, debere illorum testimonium huiusmodi esse, et talibus ornatum circumstantiis ut iudex credat praesumptive eos non mentiri. Verum hoc, quid nobis officit? Nec tantum requiritur certitudinis in testimonio ad torturam, quantum in testimonio ad convincendum, quod est maioris praeiudicii. Item nituntur hoc probare in omnibus criminibus ex quibusdam textibus generaliter loquentibus, ut lib. Absentem D. de poen., ubi traditur neminem ex suspicionibus esse damnandum; satius esse nocentis facinus relinqui impunitum, quam innocentem damnari, quae contra nos non pugnant. Quia non agimus de damnando ullo ex suspicionibus, sed detorquendo ex indiciis valde moventibus iudicem, nec vero innocens iudici censendus est, contra quem alia sunt indicia. Denique obiiciunt lib. respiciendum eo tit., ubi nihil est quod nobiscum pugnet. Non decet me denegantium parte suspicari, eos misericordiae laudem ambire, nec illos decet suspicari, qui contra sentiunt, se veritatis gloriam accupari. Deo ista iudiciasinenda. Utraque pars conset se nec durius, nec remissius decernere, quam res postulat; utraque iustis rationibus moveri se arbitratur. “Quod tamen eodem loco sequitur, in lenioribus causis oportere ut iudex sit ad lenitatem pronior; in gravioribus severitatem legum aliquo tem|peramento benignitatis subsequi.” Hoc satis indicat non eodem modo in criminibus exceptis, quae atrocissima sunt, quibus graviores poenae sunt decretae; et in levioribus, ut sunt non excepta, procedendum; sed licere iudicibus in illis serverius quam in his procedere.

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(which is one point in my favour). Indeed, this hearing works to the advantage of the Faith since heretics can be convicted more easily and pay their penalties, (which is a second point in my favour). Consequently, I am right to infer that, since the crime of witches [strigum] is conjoined with that of heresy, and the same things apply in the prosecution of it, and so that witches can be convicted and punished more easily, in the case we are dealing with, the judge is allowed, to the advantage of the Faith, not to observe the usual legal procedure, when the charge which has been brought concerns a crime which falls outwith the normal legal rules. From the chapter, ‘to the advantage of the Faith’, it is proved merely that accomplices in a case of heresy are given a hearing to testify to the Faith, and that their testimony should be of such a kind and furnished with circumstances such that the judge can believe them and presume they are not lying. But the testimony we are discussing here—what office does it perform for us? Testimony which is to warrant the use of torture needs as much certainty as testimony which will lead to a conviction, and the testimony we are discussing here is more prejudicial [to the accused]. Likewise, they rely on proving what they are saying in relation to every crime, and rest their case on certain texts which are expressed in general terms, such as ‘the person who is absent’, Digest, ‘punishments’ [= 48.19.5 preface], in which it is proposed that no one should be found guilty simply because of people’s suspicions, and that it is better a guilty person’s offence be left unpunished than that an innocent person suffer punishment. [These propositions] do not contradict me, because I am not dealing with the question of finding anyone guilty as a result of suspicion, but of torturing someone as a result of evidence which a judge finds entirely convincing. Finally, they raise an objection from ‘one should pay attention’, under the same heading [= Digest 48.19.11 preface], in which there is nothing at odds with what I am saying. It is not fitting for me to suspect that those who deny this are touting for praise of their compassion, and it is not fitting for those who think the opposite to suspect they are chasing after the glory of being right. Judgements of that kind should be left to God. Both sides agree that they do not make decisions which are harsher or milder than the situation demands, and both think they are swayed by legally justifiable reasons. But what follows in that same passage [from the Digest] is that in less serious cases, the judge ought to be more inclined to leniency, and in more serious cases he must prosecute the laws’ severity with some degree of kindness. This is sufficient indication that procedure should not be the same in particularly dreadful crimes which fall outwith the normal legal rules, for which heavier punishments have been decreed, and those which do not fall outwith the normal legal rules, and that judges are permitted to proceed with greater severity in the case of the former than in the case of the latter.

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quaestio xxi Quae indicia leviora sufficiant ad torturam? Omnino teneo debere esse legitima et sufficientia iuxta criminis naturam, et in genere indiciorum ad torturam. Licet enim multi dd. dixerint in atrocissimis permissum iudici iura transgredi, ut in his ordo sit ordinem iuris non servare: Innoc. in. cap. 1 de consti., Bald. in lib. Observandum n. 10 D. de offic. Praes. et in lib. et si severior cap. de infam., Mars. in lib. 1, n. 47, de q. Clarus in § 1 ante n. 10, et 11, Capit. Decis. 31, Gramm. decis. 36, n. 2, et 3, Roland. cons. 7, n. 5 et infr. lib. 1, Menoch. de arbitr. q. 84, n. 9, et cons. 100, n. 66, Mascard. concl. 1385, n. 13. Hoc solummodo verum est, ubi constat de rei delicto, sed cum quaeritur an reus deliquerit, iura quidem dispensant circa nonnulla iure ordinario et positivo requisita in procedendo, et circa personas testium, ut responsum quaestionibus procedentibus, sed ut absque legitimis indiciis praecedentibus aliquis torqueatur, nec ulla iura, nec aequitas permittunt, ut bene Marsil. doctrinam illam Innocentii moderatur et explicat, quae explicatio merito communiter recipitur: Masil. in § diligenter n. 157, et cons. 74, n. 35, Gramm. voto 34, n. 23, Personal. tit. De indic. et tortu. n. 24, Carrer. tit. De indiciis § circa quartum n. 8, Riminal. Iun. cons. 361, n. 32, 33 et 37, Farinac. q. 37, n. 90.

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Question 21 Which fairly slight kinds of evidence are sufficient to warrant proceeding to torture? I am entirely of the opinion that they should be legal and sufficient, (according to the character of the crime), and fall within the kinds of evidence which warrant torture, even though many scholars have said that the judge is permitted to go beyond the law in the most dreadful crimes, with the result that in them his procedure is one which does not preserve the [usual] legal way of proceeding. (Innocent in his Constitutions, chapter 1; Baldo number 10 on ‘it should be observed’, Digest, ‘the duty of the presiding officer’ [= 1.18.19 preface], and the passage ‘and if a more severe’, Codex, ‘people of ill repute’;336 [Ippolito] Marsili on number 47, concerning the question; [Giulio] Claro in paragraph 1 before numbers 10 and 11; [Antonio] Capece, decision 31;337 [Tommaso] Grammatico, decision 36, numbers 2 and 3; Rolando [della Valle], advice 7, number 5 and infra, loc.cit. 1; [Giacomo] Menochio, Cases etc. question 84, number 9 and advice 100, number 66; and [Giuseppe] Mascardi, conclusion 1385, number 13.) This is true only when there is agreement about the accused’s offence. When the question is asked whether the accused committed it, the law certainly thinks about several things which are required by ordinary and man-made law in the conduct of a trial and about the legal status of witnesses, just as it does about their reply to earlier questions. But that someone may be tortured without there being legal evidence beforehand, neither the laws nor equity permit, as Marsili explains very well in his modification of Innocent’s teaching, an explanation which is quite rightly is generally accepted. (Marsili in paragraph ‘carefully’, number 157, and advice 74, number 35; Grammatico, verdict 34, number 23; [Francesco] Personali, under the heading ‘evidence and torture’, number 24;338 [Lodovico] Carerio, under the heading ‘evidence’, paragraph ‘about the fourth’, number 8; Riminaldi the younger, advice 361, numbers 32, 33, and 37; Farinacci, question 37, number 90.)

336 337 338

There is no such passage beginning ‘and if a more severe’ in the section cited here in the Codex [= 10.59]. Antonio Capece (c.1458–1545) was a distinguished Neapolitan jurist. He published his collected legal decisions in 1541. Francesco Personalis della Mirandola (floruit sixteenth century) published A Garland of Legal Questions in Civil as well as Criminal Cases in Frankfurt in 1599. The title page informs us that its principal essay is entitled, ‘Treatise on the defendant, evidence, torture, and gibbets.’

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Equidem nisi sic explices, iniustam censuerim, et simpliciter negandam, ut negant longe plures: Gloss. Cyn. Bald. Salic. in lib. si quis cap. ad leg. Iul. Maiest. Alberi. in rub. D. eo n. 3, Afflict. in tit. quae sint regalia in verb. et bona commitentium n. 44, Gramm. d. voto 34, ad fin., Angelus de Aretio, et in addit. Augusti. in verb. che hai tradito la patria n. 1, Mars. d. § diligenter n. 175 et post Brunum et Corrad., Clarus q. 64, ante n. 10, Follerius in pract. crim. verbo, et quod suffocavit uxorem n. 58, et n. 103, Cason. post tract. de indic. cap. 5, sub rub. de non torquendo sine indiciis etiam in crim. laes. Maiest., Gygas de eod. crimine in tit. quomodo et per quos q. 26, Roland. cons. 12, n. 33, lib. 3, Rimin. Iun. cons. 88 et 361 n. 32, Osach. decis. 79 n. 14, Decia. in crim. lib. 7, cap. 46, Bertazz. cons. 61,. col. 1, lib. 1, Bursat. cons. 166, n. 33, et 201, n. 41, Beccius cons. 67, n. 14, Personal. supra n. 14, Vincent. Ondedus cons. 100, n. 5, lib. 1 et n. 22, Carrer. supr, n. 7, Mascard. concl. 1385, n. 4, Farinac. lib. 2, q. 37, n. 79 et n. 89. Debent ergo adesse indicia sufficientia. Sed quae ista? Recte Bart. advertit certam de his doctrinam tradi non posse, quem alii sequuntur: Bart. in lib. fin. D. de q. et ibi plene Marsil. et Blanc. De indic. et Clarus § fin. q. 64. n. 13, ideo iudex potest arbitrari quae sibi censeat sufficere: sic post multos Menoch. De arbit. cas. 270, n. 3, et cas. 474, n. 1, et n. 47, dixi de hac re copiose d. lib. 5, sect. 3 et 4, quo me refero. Menochius lib. 1. De praesumpt. q. 44, an. 9, posuit quadraginta tria indicia ad torturam idonea. Bertazzin. cons. 213, n. 8, vult duo indicia

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Indeed, unless you do explain it this way, I think it is unjust and that it should be denied unreservedly, as by far most people do. (The glossator, Cino [da Pistoia],339 Baldo; [Bartolomeo de] Saliceto on ‘if someone’, Codex, ‘Lex Julia on treason’ [= 9.8.3 preface]; Alberico [da Rosate] on this law in the Digest [= 22.4], number 3; [Matteo d’] Afflitto in the chapter ‘things which are of service to the Crown, and the property of those who commit offences’, number 44; [Tommaso] Grammatico at the end of verdict 34; Angelo [Gambiglioni], and in the additions made by [Antonio] Agustin, at the words ‘that I have dealt with the homeland’; [Ippolito] Marsili, paragraph ‘carefully’, number 175 and, (following [Francesco] Bruni and [Giovanni Battista] Corradi), [Giulio] Claro, question 64, before number 10; [Pietro] Follerio in Criminal Practice where it says, ‘and because he strangled his wife’, number 58 and number 103; [Francesco] Casoni after the essay on evidence, chapter 5, under the heading ‘Not torturing without evidence, even in the crime of treason’; [Girolamo] Giganti on the same crime in the chapter ‘how and by whom’, question 26; Rolando [della Valle] Book 3, advice 12, number 33; Riminaldi the younger, advice 88 and 361, number 32; [Ottaviano Cacherano d’] Osasco, decision 79, number 14; [Tiberio] Deciani, [Treatise on] Crime Book 7, chapter 46; [Bartolomeo] Bertazzoli Book 1, advice 61, column 11; [Francesco] Borsati, advice 166, number 33 and 201, number 41; [Francesco] Beccio, advice 67, number 14;340 [Francesco] Personali, supra, number 14; Vincenzo Ondedei Book 1, advice 100, number 5 and number 22; [Lodovico] Carerio, supra, number 7; [Giuseppe] Mascardi, conclusion 1385, number 4; [Prospero] Farinacci Book 2, question 37, number 79 and number 89.) There should, therefore, be sufficient evidence. But what is that evidence? Bartolo [da Sassoferrato] quite rightly observes that one cannot say that the teaching on this is clear-cut, and others agree with him. (Bartolo on the end of Digest, ‘investigations’ [= 48.18]; Marsili extensively on the same passage; [Marco Antonio] Bianchi on evidence; and Claro in the final paragraph of question 64, number 13). Therefore, the judge can decide for himself which evidence he thinks is sufficient. (This is what Menochio, following many others, thinks in Cases etc., case 270, number 3 and case 474, number 1 and number 47.) I talked about this at length in Book 5, sections 3 and 4, and I return to that passage. In Book 1, question 44, number 9 of his Presumptions, [Giacomo] Menochio has posited forty-three pieces of evidence which are enough to warrant torture. Bertazzinus, advice 213, number 8, thinks that two slight pieces of evidence 339 340

Cino da Pistoia (1270–1336/7), wrote a commentary on the Justinian Code. Francesco Beccio (1519–pre-1610) was a distinguished jurist, imprisoned at one point on charges of treason. His Consilia were published in two volumes in Venice in 1575.

702

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levia sufficere ad torturam quod intelligo etiam si in iure non sint expressa, dummodo sint per duos testes probata, et sint verisimilia et probabiliter concludant. Bald. | cons. 515, n. 4, vol. 5. Item indicium aliqualiter animum iudicis movens, et in iure approbatum, sufficit. Bald. in lib. Cum citra cap. de iur. dot., Cravet. cons. 6, n. 12, Simon de Pretis. cons. 15, n. 19, Bart. Baiardus ad Clarum q. 64, n. 56, quia plus debet operari in iudicis animo caeteris paribus indicium iure expressum, quam non expressum. Tertio unus testis integer, et (ut vocant) invulnerabilis, de propria scientia per sensum corporis, deponens: Gloss. Bald. Ang., Salic. et alii in d. lib. si quis., Angel. in lib. tormentis cap. de q., Bald. cons 259, n. 5, lib. 1, Mars. cons. 64, n. 1, Andreas Sicutus cons. 47, n. 6 et 7, lib. 1, Paris. cons. 151, n. 3, lib. 4 et alii post quos Farinac. q. 37, n. 56, cum seqq. Quod si integer non esset, aliquod aliud adminiculum requireretur Menoch. De praesumpt. lib. 1, q. 89, n. 10 et 11, Clarus q. 21, n. 2, vel si desit adminiculum, non poterit deveniri, nisi ad levem torturam, et non ad plenam: post alios Clarus q. 64, n. 32, Farinac. sup. n. 64. Denique consuetudine receptum, quod unum indicium etiam remotum sufficiat ad torturam (Ioan. And. Ad Specul. in tit. de praesumpt. § species in maiore addit, Alex. et alii apud Clarum q. 64, n. 14) quam ego non libenter sequerer, nisi concurrente aliquo alio adminiculo, ut moderantur Clarus in q. 21, et Farinac. supra n. 47, vel in occultis ad quaestionem levem, ordinaria minorem: Gram. voto 17, n. 18, Clarus d. q. 21, col. ult. Quando non sunt satis idonea indicia ad torturam, et iudex habet causas suspicandi reum esse culpabilem, consulunt latrunculatores, ut reus saltem terreatur verbis, et vultu, et torturae camminatione: Bald. in lib. 2, cap. quorum appellat, n. 5, Bossius tit. de indic. n. 24. sed alii, ad hoc requirunt qualem iudi-

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are sufficient to warrant torture, which I understand to mean that, even if they are not legally clear, as long as they are proved by two witnesses, are likely to be true, and conclusive. (Baldo Volume 5, advice 515, number 4.) Likewise, a proof which in some way or other sways the judge’s mind and is proven in law is sufficient. (Baldo on ‘when without regard to’, Codex, ‘the law on dowries’ [= 5.12.15]; [Aimone] Cravetta, advice 6, number 12; Simone de Pretis, advice 15, number 19;341 Battista Baiardi on Claro, question 64, number 56.) This is because evidence which is clearly legal ought, (other things being equal), to have a greater effect on a judge’s mind than evidence which is not. Thirdly, one irreproachable and, (as they say), ‘invulnerable’ witness giving evidence from his own knowledge which has been garnered from his own physical senses. (Glossator, Baldo, Angelo [Gambiglioni], [Bartolomeo da] Saliceto, and others on loc.cit. ‘if anyone’; Angelo [Gambiglioni] on ‘with tortures’, Codex, ‘examinations’ [= 9.41.18]; Baldo Book 1, advice 259, number 5; Marsili, advice 64, number 1; Andreas [de Barbatia] Siculus Book 1, advice 47, numbers 6 and 7; Pride [del Pozzo] Book 4, advice 151, number 3; and others whom Farinacci follows, question 37, number 56ff.). If, however, he were not irreproachable, some other supporting evidence would be required. (Menochio, Presumptions Book 1, question 89, numbers 10 and 11; Claro, question 21, number 2); and, if supporting evidence is not available, it will not be possible for him to be tortured except lightly and not fully. (Claro, following others, question 64, number 32; Farinacci, op.cit. supra, number 64.) Lastly, it is customarily accepted that one piece of supporting evidence, even one not directly connected with the crime, is sufficient to warrant torture. (Giovanni Andrea in The Mirror [of Justice] in the chapter, ‘types in a greater additional number’; and others in Claro, question 64, number 14.) I should not be willing to agree with this unless there were some other piece of supporting evidence, in accordance with [Giulio] Claro’s qualification in question 21 and [Prospero] Farinacci supra, number 47, or, in the case of hidden crimes, light torture, less severe than the usual, (Grammatico, verdict 17, number 18; Claro, question 21, final column.) When there is not enough suitable evidence sufficient to warrant torture, and the judge has cause to suspect that the accused is guilty, they consult thief-catchers in order to frighten the accused, at least by words, facial expression, and the threat of torture, (Baldo on Codex, ‘those whose appeals [are not accepted’ [= 7.65], 2, number 5; [Egidio] Bossi, heading ‘evidence’, number 24), but others require some kind of presumption from the judge for

341

Simone de Pretis (1510–1602) was a jurist from Pesaro. His Consilia were published in Venice in 1575.

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cis praesumptionem: sic Fran. Personal. tit. de tortur. n. 77, et Farinac. monet ne terror iste verbalis admoveatur personis valde timidis, q. 37, n. 102 et 103. Si praesumptio iudicis esset bene fundata, posset verbis adiungere facti aliquid, admovere reum ante equleum, expoliari, et quandoque ligari facere, immo et modicum elevari, sine quassatione: Paul. Grilland. De indic. q. 4, in 2 et 3 gradu tarturae, Corrad. tit. de negat. crim. n. 41, Personal. supra n. 78, et Farinac. d. q. 37, n. 105. Quanquam nec in his certa regula potest iudici praescribi: Cartar. in Pract. cap. 112, in fin., Farinac. q. 38, n. 33. quaestio xxii An iudex promptior et facilior debeat esse ad torturam in atrocibus et occultis? Iure certum est, ubi aliter veritas haberi non potest facilius concedi ut veniatur ad quaestionem lib. D. Pius D. de quaest. et cum in hoc crimine strigum raro vel nunquam aliter queat veritas haberi, quia conveniunt de nocte, et in locis desertis, et talia crimina sunt difficilis probationis: Menoch. De arbit. cas. 116, n. 14, Camillus Campeg. in addition. ad Zanchin. cap. 9, verb. num quid poterit torqueri. Sequitur in hoc crimine ut in aliis occultis promptiorem ad torquendum debere esse iudicem. Idem in atrocioribus probatur, quia quo gravior morbus, hoc opus est remidio efficaciore et celeriore. Confirm. ex praecedentibus, quia si in his criminibus ad torquendum leviora sufficiunt indicia, ut probatum q. 21, certe sequitur iudicem in his ad torquendum promptiorem et faciliorem esse debere: lib. ubi | cap. de fals. hoc tenent Bald. in lib. Nemo deinceps cap. de Episc. aud. n. 3, Alex. cons. 62, n. 5, lib. 3, Gram. Decis. 33, n. 4, decis. 34, n. 38, et cons.

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this purpose—Francesco Personali, heading ‘torture’, number 77 does so—and Farinacci warns against this verbal frightening’s being used on people who are very timid, (question 37, numbers 102 and 103.) If a judge’s presumption were well founded, he could add some kind of action to his words, send the accused to face the rack, have him shaved all over, and sometimes bound and lifted up into the air, but without being beaten, (Paolo Grillando, Evidence, question 4 on the second and third degree of torture; [Battista] Corradi, heading ‘denial of the crime’, number 41; [Francesco] Personali, op.cit. supra, number 78, and Farinacci, question 37, number 107), although the judge cannot be prescribed a specific rule in these cases, ([Flaminio] Cartari, Practice, chapter 112 at the end; Farinacci, question 38, number 33.) Question 22 Should a judge be more ready and more willing to proceed to torture in cases which are dreadful and have been kept hidden? The law specifies that when the truth cannot be had in any other way, bringing [the accused] to torture is more easily granted, (‘the late Pius’, Digest, ‘examinations’ [= 48.18.9 preface]), and in this criminal activity of witches [strigum], the truth can rarely or never be had any other way, because they meet at night in uninhabited places, and their crimes are of a kind which is difficult to prove. ([Giacomo] Menochio, Cases etc., case 116, number 14; Camillo Campeggi in chapter 9 of his additions to [Ugolini] Zanchino, at the words ‘won’t it be possible to be tortured’.)342 It follows that, in this crime, as in others which are kept hidden, the judge ought to be more ready to order torture. The same is approved procedure in more dreadful crimes because, the more serious the disease, the more need there is of a more effective and swifter remedy. This is confirmed by what I said before, because if fairly slight pieces of evidence are sufficient to warrant torture in the case of these [more dreadful] crimes, as is proved in question 21, it certainly follows that the judge ought to be readier and more willing to order torture in the case of [crimes which are kept hidden]. (‘when’, Codex, ‘the examination of a counterfeiter’ [= 9.22.22.1]. Baldo is of the same opinion, ‘no one thereafter’, Codex, ‘an episcopal audience’ [= 1.4.3 preface], number 3; as are Alessandro [Tartagni] Book 3, advice 62, number 5; [Tommaso] Grammatico, decision 33, number 4, decision 34, number 38; and advice 33, number 17; [Jean]

342

Camillo Campeggi (died 1569) was a Dominican theologian. His additions to Zanchino’s work were published in Rome in 1568.

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33, n. 17, Igneus in lib. 1 § servi n. 75. D. ad Syllan., Brunus De indic. 2, p. q. 80, n. 2, Abb. in cap. at si clerici in fin. principii. de iudic., Bossus. De ind. n. 172 et 195, Clarus q. 64, n. 6, qui vocat communem, et sane ibi in addit. Giarcharus lit. H, et Baiardus n. 19, multos allegant, idem defendit Binsf. d. concl. 6, v. 6, et unanimiter sic responderunt interrogati dd. Ingolstadienses Theologi et Iurisperiti anno 1590, Patavini, Bononiens. et Friburgens. anno 1602. Nec dubitandum hac de reputo. quaestio xxiii An in hoc crimine dignitas a tormentis excuset? Iure ordinario nobilitas et dignitas a tortura excusant: lib. edictum D. de quaest. lib. milites, eo tit., Gramm. voto 1, Bossius de indic. n. 102, usque 114, excipiunt quidam, nisi in officio delinquerint, ut id Boss. n. 16, et Clarus fin. § q. 64, n. 16, sed exceptionem non approbant alii, cum Vulpello Farinac., d. q. 41, n. 49. Haud scio tamen an in iudiciis non magis obtineat rigidior illa. Hoc scio in crimine maleficii, ut in caeteris exceptis, nec nobilitatem nec dignitatem per se excusare a tormentis textus sunt apertissimi: lib. etsi excepta cap. malef. lib. de minore in pr. D. de quaest. lib. Decuriones cap. eod. lib. nullus, lib. si quis alicui cap. ad leg., Iul. Maiest. lib. Proditores D. de re milit. lib. si quis Decurio cap. de fals. cap. in fidei. de haeret., Marsil in d. lib. edictum., Bossius, De indic. n. 115, Damhauder. in Pract. crim. cap. 41, rub. qui a tortura sint excu-

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Feu, Book 1, number 75 on paragraph ‘slaves’, Digest, ‘the Silanian decision of the Senate’ [= 29.5.1.4];343 [Francesco] Bruni, Evidence Part 2, question 80, number 2; Nicolò de’ Tudeschi (Abbas) on the chapter ‘but if clerics’, at the end of the start of Judgement; [Egidio] Bossi, Evidence, numbers 172 and 195; [Giulio] Claro, question 64, number 6. He calls it common opinion, and [Gaspar] Gaiarchus at letter H in his additions,344 and [Giambattista] Baiardi, number 19, say there are many others.) [Peter] Binsfeld defends the same opinion, (conclusion 6, at about 6), and when asked, the learned theologians and legal experts from Ingolstadt gave this same answer in 1590, as did those of Padua, Bologna, and Freiburg in 1602. I think there should be no doubt about this point. Question 23 Does social rank excuse someone from torture in a criminal case of this kind? Under the law as it usually stands, noble and social status do excuse people from torture, (‘an edict’, Digest, ‘examinations’ [= 48.18.8 preface]; ‘soldiers’, [Codex], same heading, [= 9.41.8 preface]; [Tommaso] Grammatico, verdict 1; [Egidio] Bossi, Evidence, number 102 as far as number 114.) A number of people, (such as Bossi, number 16, and Claro at the end of question 64, number 16), excuse them unless they commit an offence which in public office, but others, ([Ottaviano] Volpelli and Farinacci, question 41, number 49), do not approve of the exception. I do not know, however, whether the less stringent opinion holds good when it comes to judicial investigations. I do know that, in the crime of practising harmful magic, as in all other crimes which fall outwith the normal legal rules, neither noble birth nor social standing by themselves excuse people from being tortured. The texts are perfectly clear. ‘Even if they are excused’, Codex, ‘workers of harmful magic’ [= 9.18.7. preface]; the beginning of ‘younger than fourteen’, Digest, ‘examinations’ [= 48.18.15.1]; laws on decurions, Codex, ‘decurions’ [= 10.32.60 preface]; ‘no one’, Codex, same [= 10.32.8]; ‘if someone .... to anyone’, Codex, ‘Lex Julia on treason’ [= 9.8.3. preface]; ‘traitors’, Digest, ‘military situation’ [= 49.16.7]; ‘if anyone as a decurion’, Codex, ‘Lex Cornelia on false coiners’ [= 9.22.21. preface]; chapter ‘of the Faith’ in [the decree] on heretics; Marsili, op.cit. ‘edict’; [Egidio] Bossi, Evidence, number 115; [Joost] Damhouder, Practice in Criminal Trials, chapter 41, 343 344

Jean Feu (1477–1549) was a Professor in the University of Orléans and later a member of the Parlement of Rouen. A Gaspar Gaiarchus is mentioned by Jacques Auguste de Thou in part 2 of his History of His Own Time, published in 1607–1608. Apparently, he suffered a violent death in 1562.

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sandi. n. 7, Gramm. voto 25, n. 5, Grill. de quaest. q. 4, Covarr. lib. 2, var. res. cap. 9, Binsfeld. in d. lib. etsi excepta concl. 7, Farinac. q. 41. n. 100. Levius tamen torquendos docet Tiber. Decian. cons. 93, n. 137, vol. 2, quod aequum est, ut et illud; contra tales exigi indicia clariora quam contra alios: per tradita a Vulpello cons. 141, in prin. quem sequitur Baiard. ad d. Clari q. 64, n. 63. Verumtamen etiam haec duo ab arbitrio iudicis dependent, quia cum reatus omne privilegium ademerit, iuxta Fran. Marcum decis. 709. p. 1, tantum licebit iudici, cum istis qui privilegio sunt exuti in poenam facinoris de quo suspecti merito videntur, quantum cum illis qui nunquam privilegio adiuti fuerunt. quaestio xxiv An in atrocioribus maior debeat adhiberi tortura, quam in aliis criminibus.

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Si caetera paria sint, et aliunde nihil obstet, certum est in his acerrimam esse torturam adhibendam: per lib. ubi cap. de fals. et lib. edictum D. de quaestion. Brun. de indic. et tortur. p. 2, q. 5, n. 42, Conrad. in Pract. tit. de negat. crim. n. 39, in fin., Noviss. Roman. de test. q. 37, n. 89. Sed quia in his certa regula tradi non potest, quia res pro personarum, indiciorum, et aliarum considerationum varietate iudici moderanda, ut docui lib. 5 Disquis. sect. 9, vers. torturae modus. Ideo hoc totum prudentis iudicis arbitrio commissum censetur, ut torturam intendat vel remittat, prout in conscientia iudicabit: lib. De minore § tormenta. lib. Quaestionis D. de quest., Brunus sup. Clarus d. q. 64, n. 2, Foller. in verbo rei | indurati, n. 16, Binsfeld. d. concl. 5, Menoch. De arbit. Iud. cent. 3, casu 271,

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title, ‘Those who can be excused torture’, number 7; [Tommaso] Grammatico, verdict 25, number 5; [Paolo] Grillando, Examinations, question 4; [Diego de] Covarrubias, Various Resolutions Book 2, chapter 9; [Peter] Binsfeld, op.cit. ‘even if exceptions’, conclusion 7; Farinacci, question 41, number 100. Tiberio Deciani, however, tells us that they should be tortured quite lightly, (Book 2, advice 93, number 137), which is fair, as is the requirement that the evidence against such people be plainer than that against others, as Volpelli said at the beginning of his advice 141, in which he is followed by [Giambattista] Baiardi in his additions to [Giulio] Claro, question 64, number 63. It is still true, however, that these two points depend on the judge’s decision because, according to François Marc, decision 709, part 1, since impeachment deprives a person of every privilege, it will be just as permissible for a judge to inflict this penalty on those who have been endowed with privilege and appear to be rightly suspect of the offence, as on those who have never had the benefit of privilege.345 Question 24 Should more severe torture than that used in other crimes be applied in the case of those which are more dreadful [than the others]? Other things being equal and provided there is nothing else standing in the way, it is certain that in these cases very severe torture should be applied. (‘When’, Codex, ‘false coiners’ [= 9.22.22.1] and ‘an edict’, Digest, ‘examinations’ [= 48.18.8. preface]; [Francesco] Bruni, Evidence and Torture, part 2, question 5, number 42; Conradus in Practice, in the chapter ‘denying a crime’, number 39, at the end of The Most Recent Roman [Law] on Witnesses, question 37, number 89.) But because no hard-and-fast rule can be given in these cases, since the judge ought to regulate things in the face of differences between individuals, pieces of evidence, and other considerations, (as I said in Investigations Book 5, section 9, at about ‘the method of torture’), it is therefore considered best to leave the whole thing to the discretion of an experienced judge, either to proceed with torture or not, as he will determine in good conscience. (‘Younger than fourteen’, paragraph ‘tortures’, Digest, ‘examinations’ [= 48.18.15.1]; [Francesco] Bruni on [Giulio] Claro, question 64, number 2; [Pietro] Follerio at the phrase ‘hardened prisoners’, number 16; [Peter] Binsfeld, conclusion 5; [Giacomo] Menochio, Cases etc. century 3, case 271; Farinacci, question 38, number 33 and where,

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François Marc (died 1522). His Important Decisions (‘Decisiones Aureae’) were published in Venice in 1561.

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Farinac. q. 38, n. 33, ubi post n. 34, ponit varios torturae gradus, qui possint iudicem dirigere. Optimum puto sequi loci consuetudinem, ut bene Chartar. sup. n. 49. quaestio xxv Cum sagae plerumque sint induratae et maleficio taciturnitatis munitae, qualis tortura in hoc crimine maioris sit effectus. Quia propter varia concurrentia temporis, loci personae saepe fit, ut quod in uno efficax, in alio irritum inveniatur; immo quod uno die vehementer metuendum et intolerandum, hoc eidem personae alio tempore haud magnifaciendum videatur; vix certi quid responderi queat, nisi quod ab experientia iudex in his directionem suam debeat mutuari. Scio profuisse, et bonum factum iudico, si simul cum quaestione adhibeantur aliqua remedia Ecclesiastica, quibus daemonis vires infringi solitae. Silvest., in lib. De Strigimag. admir., commendat praemissam exorcizationem, non quod possessas a daemone sagas omnes sentiat, sed quia vel obsessae, vel praesentia eius obfirmatae sunt. Utile quoque si torquendi collo appendantur sacrae reliquiae, vel agni cerei effigies consecrata; item si aqua benedicta in os infundatur, et ea corpus aspergatur; et cum utuntur tormento insomniae, cerei benedicti instillatio inopinata. Verum haec omnia (ut dixi) ab usu docentur; et cavendum ne sacris hisce remediis superstitiosi aliquid ratione materiae, temporis aut numeri immisceatur. Plurimum et crebro veritati obstat mala iudicum et quaesitorum dispositio quoad fidem, mores aut intentionem. Hinc enim fit ut adeo multa Deus diabolo permittat, quae contra Iudices bene dispositos, nec tam crebro nec tam facile foret permissurus.

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after number 34, he lists the various grades of torture which a judge can direct to be used.) I think it best to follow local custom, as [Flaminio] Cartari is quite right to say, (supra, number 49.) Question 25 Since witches [sagae] are, for the most part, obdurate and protected by a malefice of silence, what kind of torture is more effective in a case of this particular crime? Because, on account of various coincidences of time, place, and person, it often happens that what is found to be effective in one case is provocative in another. Indeed, the same person can be very frightened of something and find it insupportable one day, and at another time can regard it as something he need not make much of. I am not at all sure what reply can be given, except that a judge ought to change the way he directs his investigations in accordance with his experience in these cases. I know it has been advantageous, and I think it well done, if some Church remedies, which usually weaken the strength of evil spirits, are provided at the same time as the individual is being tortured. In his Wonders Worked by the Magic of Witches and Evil Spirits, Silvestro [da Prierio] recommends preliminary exorcism, not because he thinks those who have been taken over by an evil spirit are all witches [sagas], but because these women are either possessed or have been rendered obstinate by the presence [of the evil spirit]. It is also useful if holy relics or a consecrated wax effigy of the Lamb are hung round the neck of someone who is to be tortured; likewise, if holy water is poured into her mouth and sprinkled on her body; and when they use the torture of sleep deprivation, they should, without warning, sprinkle her with drops of blessed wax. All this, however, (as I said), is done in common practice. People should take care not to mingle with these remedies anything which is superstitious because of its material, time of use, or the number [of things involved]. Very often, for the most part, the wicked disposition of judges and examiners, in respect of their faith, character, and intention, gets in the way of [finding] the truth and, as a result, it happens that God allows the Devil to do a lot against judges who are well disposed. But He will not allow this very often and not very easily.

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quaestio xxvi Quoties possit elevari reus et quot possint dari ictus, pro quolibet indicio? Non potest in his constitui certus modus vel regula; iudex debet facere secundum arbitrium et conscientiam suam; considerata qualitate delicti, personae, et indiciorum: recte Marsil. in Pract. crim. §. expeditam n. 85, Clarus d. q. 64, n. 32, qui nonnulla de ictuum n., Menoch. cas. 271, et alii citati a Giacharo ad d. q. Clari 64, vers. Iudicis arbitrium, Paris de Sindica. vers. tortura cap. 4, n. 1, Boer. decis. 163, n. 9, et decis. Lucens. 89, n. 11. In genere dici potest regulariter reum ter elevari et dimitti posse: Cason. De torment., cap. 14, et de consuetudine Italiae solere pro singulis indiciis tres ictus dari, scribit Marsil. in Pract. § occurrit col. 2, vers. et potest poni, sequitur Ioseph. Cuma. De Sindicat. rub. de tortu. n. 20, Novell. falla. 92, n. 28; mihi hoc durius semper visum. Nam et ipse Marsil., alibi cons. octavo, n. 37, respondit sufficienter tortum, qui habuit sex ictus chordae, quod est in universum pro omnibus indiciis intelligendum; Cravetta vero tres ictus satis esse censuit: cons. 287, n. 6, nempe non pro singulis indiciis, sed omnibus ante habitis, et toto continuo tempore, quo reus in una quaestione manet suspensus: Grilland. Tract. de q. §4, videndum n. 9, Clarus lib. 5 § fin. d. q. 64, n. 33, Farinac. lib. 1, tit. 5, q. 38, n. 47, et 54. |

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Question 26 How many times can an accused person be raised [by the strappado], and how long can he be left hanging to get him to disclose any evidence?346 There cannot be a fixed method or rule when it comes to these matters. The judge ought to act according to his judgement and his conscience, after giving consideration to the character of the offence, the person, and the evidence. ([Ippolito] Marsili is correct in what he says in his Criminal Practice, paragraph ‘unimpeded’, number 85; [Giulio] Claro, question 64, number 32, and he also says several things about the length of time; [Giacomo] Menochio, case 271, and others cited by [Girolamo] Giaccari in his additions to Claro, op.cit. question 64, at ‘the judge’s decision’;347 Paride [del Pozzo], The Council of Syndics, chapter 4, number 1, at about ‘torture’; [Nicolas] Bohier, decision 163, number 9; and Decisions made in Lucca, decision 89, number 11.) In general it can be said that according to the rules, the accused can be lifted and lowered three times, ([Francesco] Casoni, Torture, chapter 14), and Marsili writes that in Italy it is the usual custom for three minutes in connection with each individual charge, (Criminal Practice, paragraph ‘it occurs’, column 2 at about ‘he can be put’, and Giuseppe Cumano follows him in The Practice [and Theory] of the Council of Syndics in relation to the Rules of Torture, number 20; Giacomo Novello, Fallacies (?) 92, number 28.)348 I have always thought this is somewhat harsh. Marsili himself opines elsewhere, (advice 8, number 37), that someone who has spent six minutes on the rope has been tortured enough, and this should be interpreted as meaning in reference to all the charges taken as a whole, and indeed [Aimone] Cravetta thought that three minutes are enough, (advice 287, number 6), not, of course, for each individual charge, but in reference to all those preferred against him, and for the whole time the prisoner remains suspended during a single interrogation-session. (You should look at [Paolo] Grillando, Treatise on [Torture and] Interrogation, paragraph 4, number 9; [Giulio] Claro Book 5, end of question 64, number 33; Farinacci Book 1, chapter 5, question 28, numbers 47 and 54.) 346

347 348

‘How long can he remain hanging?’ The Latin says, ‘How many blows can be given?’ ‘Blows’ here refers to ‘strokes’ or ‘strikes’ of the clock, probably meaning minutes, since hours would be impossible for a prisoner to sustain and still remain alive. Girolamo Giaccari (floruit 1604) was one of those who later edited and supplemented Claro’s book on criminal practice. Giuseppe Cumia (floruit sixteenth century) published his treatise in Venice in 1568. Giacomo Novello (floruit sixteenth century) published Practice and Theory in Criminal Trials in Lyon in 1555. He did not write a book with any title beginnine Fallacia or Fallaces, but Delrio does not always quote titles exactly.

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quaestio xxvii Quamdiu reus possit teneri in chorda elevatus ordinarie? Statutum est quadam bulla Pauli iii Poncificis sapientissimi, non teneri usque ad spacium horae: in Bullario 1, p. fol. 471. Si enim bene bullae verba perpendas, prohibet reum in tortura teneri per longum temporis spacium, veluti unius aut plurium horarum. q. d. tale esse non modo plurium, sed unius quoque integrae horae, nisi legendum unius et plurium ut summum permittat ad unam horam, et sic videntur intelligere dd. qui in atrocissimis permittunt unam horam aut paullo amplius: Foller. in verb. rei indurati n. 16, fol. 289, Flaminius Cartar, in Pract. de interrogat. reor. lib. 4, cap. 1, n. 113, Farin. q. 38, n. 54, Grilland. sup. n. 9, ego quoque d. lib. 5, sect. 9, vers. torturae modus. quaestio xxviii Quid in utroque ad summum fieri possit? Quaestio procedit de numero ictuum, elevationum, et quantitate temporis. Imprimis Deo ante oculos posito, et moderamine tali adhibitio, ut praeceps et effrenata vitetur saevita, lib. De minore § tormenta D. de quaest. lib. nihil. cap. eodem, debet iudex potius amplecti, quo ad res patietur, benignitatem quam atrocitatem: Aymon. cons., Bertazz. cons. 315, n. 3, et videre ut reus tortus salvus sit innocentiae vel supplicio: lib. Quaestionis modum D. de quaest. ubi Bart. Alberi. et Mars. et Gandin. in tit. de quaestion. n. 5, et 10. Deinde Patavini dd. censent ad summum tribus diebus interpolatis, si sint indicia urgentia, reum torqueri posse, et pro qualibet vice ter elevari cum tribus quassationibus, et ita fieri sub dominio Sereniss. reip. Venetae, et consuluisse Paulum de Castro cons. 199, visa inquisitione n. 5, lib. 2, et sequi Blanc. de indic. n. 14, Cason. d. cap.

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Question 27 How long can an accused person normally be held raised on the rope? It was established by a Bull of Paul iii, a particularly discerning Pontiff, that he should not be held up for as long as an hour, (Bullarium Part 1, folio 471), because if you consider the wording of the Bull carefully, it prohibits holding the prisoner up for a long period of time, such as one hour or more, that is to say, not only for longer than an hour, but also for an entire hour, unless one is to read ‘one’ and ‘more than one’ as meaning that the total length of time it allows [him to hang for] is one hour. This is how scholars who allow one hour, or a little more in the most dreadful cases, appear to interpret it. ([Pietro] Follerio, when he says ‘hardened prisoners’, number 16, folio 2899; Flaminio Cartari on the interrogation of prisoners, Practice Book 4, chapter 1, number 113; Farinacci, question 38, number 54; [Paolo] Grillando, supra, number 9. I, too, have said so in Book 5, section 9, at about ‘the method of torture.’) Question 28 What is the longest time that can be used in both versions [of the torture]? The question is concerned with the number of minutes, the number of times he is lifted up, and the length of time involved in these. First of all, with God before his eyes, the judge should give an undertaking to use such moderation that precipitate and unbridled savagery is avoided, (‘younger’, paragraph ‘tortures’, Digest, ‘examinations’ [= 48.18.15.1] and ‘nothing’, Codex, ‘examinations’ [= 9.41.17 preface]) and, in respect of what he is going to allow, should embrace kindness rather than harshness, (Aimone [Cravetta], advice 287; [Bartolomeo] Bertazzoli, advice 315, number 3), and should see that a prisoner who has been tortured is kept unharmed for [a verdict] of not guilty, or for punishment, (the method of questioning’, Digest, ‘examinations’ [= 48.18.7]. Bartolo [da Sassoferrato], Alberico [da Rosate], and [Ippolito] Marsili comment on this, as does [Alberto] Gandino in his chapter on interrogation, numbers 5 and 10.) Secondly, the scholars from Padua think that a prisoner can be tortured after an interval of three days at most, if there is pressing evidence [to warrant it] and can be lifted up and dropped suddenly three times every time [he is tortured]. This, they say, is done in the most serene Republic of Venice. They say they consulted Paolo di Castro (Book 2, advice 199, ‘once the grounds in support of an accusation have been seen’, number 5), and that he is followed by [Marco Antonio] Bianchi, Evidence, number 14, [Francesco]

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14, Mars. Novell. et Clar. sup. Cirill. de quaestio § 11, n. 5, Bonacoss. commun. opin. crimin. p. 1, vers. torquendus debet habere, qui attestantur de communi Italiae praxi. Ulterius si criminis gravitas exigat et satis robustus sit reus, posse reo elevato et ad tempus suspenso facere quassari funem, qui modus torquendi censetur vehementior, quam per elevationem cum dimissione et ictibus: Bursat. post Carrer. et alios cons. 201, n. 9, lib. 2. Quando cum ictibus relevatur et dimittitur, ad summum quatuor ictus, et ultimo ponderum graviorum ad pedes appensionem permittunt Friburgens. citantes Grilland. sup., Foller. sup. n. 16, et Farin. d. loco n. 49 et 54. quaestio xxix An non possit Iudex cum videt reum esse induratum, aut ex aliis iustis causis, desistere ab examine et tortura, et post aliquot dies eam repetere?

461

Posse responderem cum id et ratio saepe dictet, et iure nullo prohibeatur, et interpretes approbent; idem responderunt Facultates, Bononiens., Patavina, et Friburgen. probant auctoritate Bald. in lib. 2, cap. quod met. cau., Bart. in lib. unius §1 D. de quaest. in | 1 opposit. Marsi. in lib. Quaestionis n. 17 et in lib. Repet. n. 4, et 10. d. tit. Afflict. in contit. Regni lib. 1, tit. De clandestin. homic. n. 55 et 56, Boer. decis. 163, n. 10, Conrad. tit. De negat. crim. et tort. n. 31, Anton. de Canario tract. De quest. m. 6. n. 1, Novis. Rom. d. quaest. 38. per totum, maxime n. 86, Cartar ubi supra n. 180, Clarus quaest. 64, n. 45, Menoch. cas. 272, n. 4, Farinac. quaest. 38, n. 86. et 87, maxime quando iudicat indicia non satis purgata per torturam praecedentem: Marsil. in d. lib. Quaestionis modum n. 17, Augustin. addit. ad Angel in verb. comparuerunt dicti inquisit. in 1, addit., Menoch. cas.

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Casoni, op.cit., chapter 14, Marsili, Novello, and Claro on Cyrillus dealing with examinations, paragraph 11, number 5; [Ippolito] Bonacossa, Common Opinions on Criminal Cases Part 1, at about ‘the person to be tortured should have’. (These people are testifying to what is common practice in Italy.) If the seriousness of the crime demands the prisoner [be tortured] further and he is strong enough, he can be lifted up, suspended for a while, and then the rope allowed to drop suddenly. This method of torture is considered to be more forceful than lifting him up and letting him down after a while. ([Francesco] Borsati, following [Lodovico] Carerio and others, Book 2, advice 201, number 9.) When he is lifted up for a while—for four minutes at most—and lowered the scholars from Freiburg, (citing Grillando, op.cit. supra, Follerio, op.cit. supra, number 16, and Farinacci, op.cit. numbers 49 and 54), allow fairly heavy weights to be attached to his feet during the final [minute]. Question 29 When a judge sees that the accused is obdurate, or when there are other lawful reasons, is it possible for him to leave off examination and torture and come back to them after a number of days? My answer would be that it is possible, since reason also dictates it, it is not prohibited by any law, and interpreters [of the law] give it their approval. The Faculties of Bologna, Padua, and Freiburg have given the same answer, and prove it by reference to the authority of Baldo on Codex, ‘something which, because of fear’ [= 2.19.10]; Bartolo [da Sassoferrato] on ‘of one offence’, Digest, ‘examinations’ [= 48.18.18 preface]. The contrary view is put by [Ippolito] Marsili in ‘of interrogation’, number 17 and ‘repetition’, numbers 4 and 10; [Matteo d’] Afflitto, Constitutions of the Kingdoms [of both Sicilies] Book 1, heading ‘clandestine murder’, numbers 55 and 56; [Nicolas] Bohier, decision 163, number 10; Conradus, ‘the denial of a crime’, and ‘torture’, number 31; Antonio da Cannara, Treatise on Examinations, part 6, number 1;349 Most Recent Roman Law, Book 1, ‘examination’, the whole of 38 and most especially number 86; [Flaminio] Cartari, op.cit. supra, number 180; [Giulio] Claro, question 64, number 45; [Giacomo] Menochio, case 272, number 4; Farinacci, question 38, numbers 86 and 87. [This is especially so] when [the judge] decides the evidence has not been disproved as a result of the preceding torture—Marsili, ‘the method of torture’, number 17; [Antonio] Agustín [y Albanell] in his additions to Angelo [Gam-

349

Antonio da Cannara (died 1451). His treatise was first published in Venice in 1563.

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273, aut si nova super veniant indicia, Noviss. Roman. n. 90, ubi supr. et dd. in d. lib. unius §1. Consultum autem tunc iudici, ut curet referri in acta, quod animo torturam repetendi, iubeat reum deponi, et ut intercedat dies et nox integra, et non repetat ultra tres vices, est communis in scholis et indiciis. Noviss. Rom. supr. n. 103 et 106, Clarus supr. vers. ultimo videndum. Rationem optime deducunt Friburgenses, et docent quod sive induratio ista sit naturalis, sive arte daemonis procurata (de quo multa Grilland. De quaest. et tort. quaest. 4, n. 12, Binsfeld. in leg. 7, cap. de malef. et mathem. quaest. 1, concl. 15, et ego de sect. 9. circa medi), tamen ipsa et ex ea nascens taciturnitas est temporalis, et non perpetua, quia mutatur ex causis naturalibus, tam extrinsecis, quam intrinsecis, ut homo modo velit tacere, modo nolit, modo facilius possit; modo difficilius se contineat. Daemon quoque non semper strigibus adsistit, sed aliquando deserit, vel sponte sua, vel Dei iussu, vel non ferens Ecclesiastica remedia, quae abhibentur, ut docui d. sect. 9, vers. quoad tertium dubium. Unde etiam fit, ut iudex merito speret, eum qui tunc induratus tacet, alio tempore cuncta propalaturum. quaestio xxx Quid sentiendum sit de effusione aquae frigidae in tergum appensi rei? Si foret addita ratio dubitandi, melius assequerer dubii mentem. Ego illam inter torquendi modos iam alias memoravi, d. sect. 9; nunc etiam respondeo, si nihil admisceatur superstitiosi (v.g. circa modum effusionis, numerum guttarum, constellationem, expectationem effectus prodigiosi, etc.). Sed fit simpliciter, et quia putatur plus doloris allatura, nec subsit metus periculi mortis, vel enormis laesionis; me nihil videre causae, cur ea non sit permittenda, cum modus et qualitas torturae iudicis arbitrio subsint.

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biglioni] in ‘they compared the words of the said interrogation’, addition 1; Menochio, case 273—or if new evidence makes its appearance, it is the common opinion in universities and law-courts that, under these circumstances, once the judge has given it serious consideration, he take care to have it recorded officially that he intends to have the torture repeated, that he order the accused to be put back after an interval of an entire day and night, and that he does not repeat the torture more than three times. (Most Recent Roman Law, loc.cit. supra, numbers 103 and 104; [Giulio] Claro, as above, at about ‘finally one should see’.) The scholars from Freiburg explain the reason very well, and tell us that whether the obduracy is natural or obtained by means of demonic magic— on which [Paolo] Grillando has a lot to say, Examinations and Torture, question 4, number 12; [Peter] Binsfeld in reading 7, Confessions of Workers of Harmful Magic and Astrologers, question 1, conclusion 15; and myself, at about the middle of section 9—both the magic and the ability to remain silent arising from it are temporary and not permanent, because it is changed as the result of natural reasons, external as well as internal, with the result that a human being either wishes to keep silent or does not wish to do so, can remain silent so quite easily or finds it rather difficult to do so. The Evil Spirit does not always help witches [strigibus], either, but sometimes abandons them, either of his own volition, or at God’s command, or because he cannot bear the Church’s remedies which are employed, (as I said in section 9 at ‘in regard to the third doubt’.) Consequently, it turns out that a judge may quite rightly hope that the person who is obdurate and silent on that occasion will divulge everything on another. Question 30 What should one think about pouring cold water on the back of a prisoner who has been hung up [by the strappado]? If a reason for hesitating were given, I should have a better understanding of the thought behind the uncertainty. I have already mentioned this elsewhere, when I was talking about methods of torture, (section 9), and I now answer, ‘if there is no superstition mixed up in it’—the method of pouring, for example, the number of drops, the ruling constellation, the expectation of an unnaturally marvellous effect, etc. But if it is done straightforwardly, because it is thought to allay the pain more, and there is an underlying fear that the prisoner is in danger of dying or being gravely injured, I see no reason why this should not be permitted as long as the method and type of torture are left to the judge’s discretion.

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Cavendum quidem iudicibus ne insolitos modos quaestionum introducunt, ne faciant litem suam, et pereunte reo in sindicatu puniantur: Bald. in lib. 1, cap. de emend. serv., Boss. De tortur. n. 40, Anton. Gomes. tom. 3, var. resol. tit. de tortur. cap. 13, n. 5, Clarus supr. n. 35, Farinac. d. quaest. 38, n. 56. Sed quando sunt indicia urgentia et crimen valde grave, tunc posse modum tormentorum excedi, volunt iidem: dd. Farinac. quaest. 37, num 84, et d. quaest. 38, n. 64, Brun. De indic. part. 2, quaest. 5, n. 42, Corrad. ubi sup. n. 39, in fin., Grilland. sup. quaest. 4, n. 10, vers. Quintus et ult., Folber. in verb. rei indurati sub. n. 17, Cartar. lib. 4, suae praxis capit. 2. Quos intelligo non de excessu iustitiae aut aequitatis v.g. plusquam rei qualitas ferat (hoc inhu|manum reputo), sed de excessu generis tormentorum, ut v.g. cum ordinarie in illis locis adhibeatur tormentum funis; manibus rei post terga ligatis; quod est iure probatum, et in praxi receptissimum: lib. nullius cap. leg., Iul. Maiesta. lib. Decuriones cap. de poenit., Francis., Brun. supr. p. quaest. 2, n. 6. Vel si nequeat sic torqueri, appropinquatio ignis ad plantas: Clarus d. n. 35, Carrer. in sua pract. fol. 138, col. 1, Farinac. d. quaest. 38, a n. 62. Vel aliquod simile; liceat tunc compedes ferreos, vel baculum intra pedes ponere, vel deponere reum et refrigeratum iterum sublimem facere; vel uti instrumento stangetae seu taxillorum, vel ignis, vigilia et siminibus: memoratis a Farinac. d. quaest. 38, Bruno d. quaest. 2 et Marsil. in d. lib. 1. Aquae frigidae effusionem in tergum, non esse insolitam patet ex eam non reprehendentibus, et in usu fuisse testantibus: Marsil d. lib. 1, n. 27, Paride De sindica. in verb. tortura, quod incip. de repet. n. 5, Damhauderio in Praxi crimin. supr. fol. 109, n. 18, Farinac. d. quaest. 38, n. 5, et 64, Foller. supr. n. 10, Chartar. supra numer. 112. Notant tamen Farinac. et Paris, hoc tormenti genus ex crudelioribus esse, et proinde non nisi in atrocissimis criminibus recipiendum; et Bononienses illud non admittunt, nisi ubi est consuetudo, plura de hoc dixi loco supr. citato. dd. Friburgenses ostendunt suplicii genus esse et servile apud Septentrionales, ex Olao Magno: lib. 2. Descript. regnor. Aquilonar. cap.

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Mind you, judges should take care not to introduce unusual methods of interrogation in case they create a law-suit against themselves and they are punished in a tribunal because the prisoner loses his life. (See Baldo on Codex, ‘the correction of slaves’ [= 9.14]; [Egidio] Bossi on torture, number 40; Antonio Gómez, Various Resolutions Volume 3, heading ‘torture’, chapter 13, number 5; [Giulio] Claro, op.cit. supra, number 35; Farinacci, question 38, number 56.) But when there is pressing evidence and the crime is very serious, these same scholars say that the method of torture can then go beyond the norm, (Farinacci, question 37, number 84 and question 38, number 64; [Francesco] Bruni, Evidence Part 2, question 5, number 42; [Giovanni Battista] Corradi, op.cit. supra, at the end of number 39; [Paolo] Grillando, op.cit. supra, question 4, number 10, at ‘the fifth and final’; Follerio (?) in the words ‘obdurate prisoners’, under number 17; [Flaminio] Cartari, Practice Book 4, chapter 2.) I understand these writers to be talking, not about an excess of justice and equity, more than the condition of the accused can bear, for example, (something I consider inhumane), but about an excess in the type of torture used—when, for example, in those places in which the torture of the rope is used as a matter of course, the prisoner’s hands are tied behind his back, something which is approved in law and is extremely common in practice—see ‘no one’, Codex, ‘Lex Julia on treason’ [= 9.8.4]; ‘a decurion’, Codex, ‘penalties’ [= 9.47.3]; Francesco Bruni, op.cit., supra, question 2, number 6—or, if he cannot be tortured this way, fire is applied to the soles of his feet—Claro, op.cit., number 35; [Lodovico] Carerio, Practice, folio 138, column 1; Farinacci, question 38, from number 62— or, (something similar)—that, under those circumstances, it is permissible to put the prisoner’s feet in iron shackles or put a stick between the feet, or lower the prisoner and lift him up again when he is exhausted, or use the instrument called ‘the pole’ or ‘metal bars’, or fire, or sleep deprivation, and things such as that, which are mentioned by Farinacci, question 38, Bruni, question 2, and Marsili in Book 1. It is clear that, according to those who do not object to it and testify to its having been in use, a douche of cold water on the back is not unusual. (Marsili, op.cit., Book 1, number 27; Paride [del Pozzo], Tribunal, at the word ‘torture’, which begins the passage on repeating it, number 5; [Joost] Damhouder, Practice in Criminal [Trials], supra, number 18, folio 109; Farinacci, question 38, numbers 5 and 64; [Pietro] Follerio, op.cit., supra, number 10; [Flaminio] Cartari, op.cit., supra, number 112.) Farinacci and Paride, however, note that this is one of the crueller kinds of torture and therefore should not be the norm, except in the case of the most dreadful crimes. The scholars from Bologna do not find it acceptable, except in places where it is the custom. (I said more about this in the passage I cited earlier.) The scholars from Freiburg, (relying on Olaus

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de poena infidel. servor. Postea erudite et philolophice ostendunt, cur aqua frigida ad tergum appensi rei affusa aut in os infusa, cruciatum adferat, parsque tormenti sit censenda, his verbis: “Tradunt philosophi, quod naturale sit cuivis dolenti, sive homini sive bruto, quod calor et Spiritus tempore doloris ad interiora, hoc est ad cor, se recipiant, seque interius conservent et nocitura repellant, sicut cives tempore oppressionis et obsidionis retrahunt se ab exterioribus, et recurrunt quantum possunt ad interiora: ut docet D. Thom. lib. 2, quaest. 44, art. 1. Atqui hinc est quod doloris seu tristitiae effectus sit, aggravare animum ita ut ad exteriora libere progredi non possit: D. Thom. lib. 2, quaest. 37, art. 2. Itaque quod aqua frigida in tergum suspensi effusa, cruciatum adferat, id accidit, quod calor circa cor intensissimus diffundatur ad proximas corporis partes, hoc est in tergum, cui calido aqua frigida affusa fortius agit in contrarium resistens, hoc est in tergum calidum, sicut aqua calefacta magis patitur a frigido: D. Thom. d. quaest. 37, art. 1. Sicut et glacies a solis calore citius, quam nix, liquescit, quod glacies fortius, quam nix resistat; et manus frigida in aquam calidam imposita maximum dolorem percipiat. Spiritus ex ore appensi est calidissimus, redditque faciem et linguam calidissimam, quo fit quod aqua frigida effusa, linguae cruciatum adferat; vel (quod probabilius est) dolor ideo intenditur, quia ut aqua calida, ita et frigida inimica est corpori, potissimum autem nervis, et partibus nervosis. Et tradunt anathomici nervos a capite per spinam dorsi seu vertebram, in reliquas corporis partes diffundi; ideoque in tergo, seu fonti et origini, hoc est capiti seu cerebro, vicinis, maximam sentiendi vim habere, potissimum tempore torturae, quo nervi extenuantur et extenduntur, quo fit ut aqua frigida ad tergum suspensi rei effusa, ceu novum cruciatus genus, dolorem augeat et intendat.” Unde patet mihi merito suspectum fuisse, si effunderetur | ante appensionem, vel diu post depositionem corpere iam refrigerato: d. vers. ut his iudices obvient.

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Magnus, Description of the Kingdoms of the North Book 2, chapter on the punishment of untrustworthy slaves), say that among the people of the North it is the kind of torture appropriate for slaves, Later on they explain, learnedly and in accordance with the principles of natural philosophy, why cold water poured on the back or into the mouth of a prisoner who has been strung up causes excruciating pain and should be thought of as part of the torture. This is what they say. ‘Natural philosophers tell us that it is natural in the case of anyone who is in pain, whether we are talking about a human being or an animal, for his [vital] spirits to retreat to his internal parts, (that is, the heart), while the pain lasts, and to remain there inside and drive off what will hurt them, just as citizens under pressure from a siege retreat from the outskirts and run back as much as they can to the interior. (See St Thomas [Aquinas] Book 2, question 44, article 1.) Anyway, this is why the effect of pain (or grief) weighs heavily upon the mind in such a way that it cannot make its way unhindered to the outside. (St Thomas, Book 2, question 37, article 2.) Consequently, cold water poured on the back of someone who is hanging [from the strappado] causes excruciating pain. The intense heat round the heart is dispersed to the nearest part of the body, that is, to the back, and when cold water has been poured on it, the water reacts strongly with the heat and puts up resistance to it, (that is, to the hot back), just as hot water undergoes a greater reaction [from contact] with cold. (St Thomas, question 37, article 1), and just as ice melts more quickly than snow from the heat of the sun because ice puts up a stronger resistance than snow and a cold hand put in hot water feels intense pain. The breath coming from the mouth of someone who has been strung up is very hot and makes his face and mouth very hot. When cold water is poured on them, it causes the tongue excruciating pain or, (which is more likely), the pain is therefore spread because, like hot water, cold water is also inimical to the body, most especially to the sinews and the parts of the body which contain them. Anatomists tell us that sinews spread from the head via the spine or joints of the back to the rest of the body, and therefore their source and origin, (that is, the head or brain) and its neighbouring parts are extremely sensitive, especially when someone is being tortured, because then the sinews are being stretched and extended. So when cold water is poured on the back of a prisoner who is suspended [on the strappado], a fresh kind of torment increases and spreads the pain.’ So, it is clear to me that it has rightly been under suspicion if pouring the water were to be done before the prisoner was lifted up or a long time after he had been let down and his body was already cold. (Op.cit. at about ‘so that judges may prevent this’.)

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quaestio xxxi An et quando tortura ex primis indiciis repeti possit, maxime in hoc crimine, cum sagae plerumque sint induratae et obstinatae? Duo quaeruntur: An et Quando. Quoad prius non quaeritur, de novis indiciis, constat ex novis urgentioribus et diversis repeti posse, licet sufficienter tortus priora cuncta purgaverit: lib. Repet. D. de quaestio. lib. unius. §1 D. eod. ex quibus locis communiter dd. id colligunt: vide Clarum supra vers. ult. videndum, et Farinac. quaest. 38, n. 77, cum seq. Sed quaeritur an ex primis indiciis, hic illud quoque certum puto, quod si iudex dubius sit an habeat iustam repetendi causam, debere in leniorem partem propendere, et a repetitione abstinere: lib. si de interpretatione. lib. si praes. D. de poen., Clar. supr. vers haec autem omnia, Farinac. supra num. 89. Item si reus non videatur satis robustus, ut corpus in tormenta durare possit, quia persona debilis est; cavendam enim ne si repetat, enormiter laedatur vel moriatur: text. in d. §1 Gandin. de quaest. n. 4 et n. 20, Guido de Suzar. in Tractat. de indic. n. 3, et 57, Paris. supr. n. 5, Farinac. supr. n. 82. Contra certum quoque, si reus in quaestione legitime confessus, revocet postea extra tormenta suam confessionem, ex iisdem indiciis posse repeti. Nam alioqui ad manum esset, sic se supplicio eripere: Bald. in lib. Bonae fidei n. 5, cap. de reb. cred., Marsil. in d. lib. repeti. n. 11, et § quoniam n. 3, Farinac. n. 91, Binsfeld. in d. lib. 7, q. 1, concl. 14, deinde lib. 5, sect. 9, vers. quoad iterationem. Cessantibus his casibus adhuc puto posse repeti, quando iudici videbitur, quia res ab arbitrio eius pendet; non quidem pro voluntate tantum, et cum sibi videtur sine ratione, quod merito damnat Farinac., supr. n. 79, 80 et 81. Sed cum hac observatione, ut non repetat si levia tantum sint indicia illa priora, quia

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Question 31 When can torture be repeated after the first pieces of evidence have been given, especially in this crime, since witches [sagae] are for the most part obdurate and stubborn? There are two parts to this question: ‘can’ and ‘when’. As far as the first is concerned, it is agreed that when new evidence is involved, [the torture] can be repeated when the new evidence is somewhat pressing and of a different kind, even though the person has satisfactorily cleared himself of all the previous evidence. (This, scholars gather in general from, ‘to be repeated’, Digest, ‘examinations’ [= 48.18.16 preface] and ‘of one’, paragraph 1, [= ‘examinations’, 48.18.18 preface]. See [Giulio] Claro, op.cit., supra, at about the end ‘one should see’, and Farinacci, question 38, number 77 and what follows.) But if the questions springs from the first evidence, here I think it is also certain that if a judge is unsure whether he has just cause to repeat it, he ought to incline to the side of being more lenient and refrain from repeating it. (‘If concerning interpretation’, Digest, ‘penalties’ [= 48.19.42]; ‘if the presiding officer,’ Digest, ‘penalties’ [= 48.19.32]; [Giulio] Claro, op.cit., supra, at about ‘but all these’; Farinacci, supra, number 89.) Likewise, if the accused does not seem to be strong enough to endure the torture physically because he is a weak individual, [the judge] should take care not to repeat it, in case he is very badly injured or dies. (Text on paragraph 1; [Alberto] Gandino, Examinations, number 4 and number 20; Guido da Suzzara’s treatise on evidence, numbers 3 and 57; Paride [del Pozzo], supra, number 5; Farinacci, supra, number 82.) On the other hand, it is also certain that if the accused has confessed legally during his interrogation and retracts his confession outwith the torture-chamber, it can be repeated on the basis of the same evidence, because otherwise he would be able to rescue himself from torture by doing this. (Baldo on ‘of good faith’, number 5, Codex, ‘things believed’, [= 4.1.3]; [Ippolito] Marsili on ‘to be repeated’, number 11, Digest, ‘examinations’ [= 48.18.16 preface] and paragraph ‘since’, number 3; Farinacci, number 91; [Peter] Binsfeld, Book 7, question 1, conclusion 14 and then Book 5, section 9, at about ‘in regard to repetition.’) Even though these cases are at odds, I still think [the torture] can be repeated when the judge thinks fit, because the situation depends on his decision— not, of course, simply because that is what he wants and because, without giving it rational consideration, he thinks it a good idea. This Farinacci quite rightly condemns, (supra, numbers 79, 80, and 81), but accompanies it with the observation that he should not repeat it if the earlier evidence is merely slight,

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haec quavis tortura censenda sunt expurgata: post Barthol. Mars. et alios in d. lib. unius §1, et in numeros Farinac. numer. 72 et 79. Quod si sint indicia gravia et vehementia, et ea iudex arbitretur nondum satis purgata, poterit eam repetere, donec expurget reus induratus: text. in d. lib. unius §1 et ibi Bart. Angel. in Pract. verb. quod fama publica n. 95, et ibi Augutinus, Marsil. in d. lib. repeti. n. 6. et 10, Cravetta. cons. 287, n. 6, Boss. tit. De tort. n. 42, Clarus supr. n. 45, Grilland. d. cap. 4, n. 10 cum seqq. Binsfeld. d. lib. 1 tit. 5, q. 38, n. 47, cum duobus seqq. et a n. 79 usque 93, et solent ad hoc prudentes iudices a leviore tortura inchoare, et postea repetere graviore et acriore, ex doctrina Bart. sup. et aliorum. Marsil. supr. in d. lib. repet. n. 4, et in d. § quoniam n. 2, Farinac. d. quaest. 38, n. 83, Si tamen inchoasset a graviore, et propter induratum animum rei, et robur corporis, nondum satis indicia expurgata, posset adhuc repeti. Hoc ordinarie observandum, ut ultra tertiam vicem tortura non extendatur Bertazzol. cons. 320, lib. 2, dixi. d. vers. quoad. iterationem; quia censetur se plane reus expurgasse. Haec quoad posterius. Porro in nostro crimine, propter causam in | quaestione positam, poterit iudex facilius usque ad tertiam venire. quaestio xxxii An in iure et legibus fundamentum habeat, quod quidam dicunt torturam non debere repeti, ultra tertiam vicem? Non scio quicquam iurescriptum, ut id receptum sit; sed ex communi Doctorum opinione, in praxim id arbitror, ut aequitati consentaneum, desumptum: id tenuit Castrens. cons. 199, n. 5, lib. 2, Blanc. de indic. n. 14, Cason. d. cap. 14, Marsil. in § occurrit. col. 2, versil. et potest poni. et consil. 8, n. 37, et in d. lib. Repeti n. 15, Clarus d. quaest. 64 n. 32, Cirill. in summ. crimi. § 11, n. 5, Bonacoss. Commun. opin. criminal. p. 1, vers. torquendus debet habere, Grammat. cons.

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because one ought to consider that this has been vindicated as the result of any torture. (Farinacci, numbers 72 and 79, following Bartolo [da Sassoferrato], Marsili, and innumerable others commenting on ‘of one’, paragraph 1.) But if the evidence is weighty and strong, and the judge thinks it has not yet been satisfactorily justified, he will be able to repeat [the torture] until the obdurate prisoner does vindicate it. (Text on ‘of one’, paragraph 1; Bartolo [da Sassoferrato] on the passage; Angelo [Gambiglioni], Practices [of Harmful Magic], at the words ‘which public notoriety’, number 95; [Antonio] Agustín [y Albanell] and Marsili on ‘to be repeated’, numbers 6 and 10; [Aimone] Cravetta, advice 287, number 6; [Egidio] Bossi under the heading ‘torture’, number 42; [Giulio] Claro, supra, number 45; [Paolo] Grillando, op.cit., chapter 4, number 10 and what follows, and from number 79 to number 93.) For this purpose, experienced judges usually begin with fairly light torture and later repeat it with torture which is more severe and more difficult to bear. (See what Bartolo and the others say supra; Marsili, supra, ‘to be repeated’, number 4 and paragraph ‘since’, number 2; and Farinacci, question 38, number 83.) If, however, he began with more serious torture and, because of the prisoner’s obstinacy and physical strength, the evidence was still not satisfactorily justified, it could still be repeated. (One ought to note that under normal circumstances the torture should not be extended beyond a third time. See [Bartolomeo] Bertazzoli Book 2, advice 320; and I said, at the words ‘with regard to repetition’, that the prisoner is clearly considered to have cleared himself.) This is what I have to say with respect to the second part of the question: in the crime we are dealing with, because of the reason posited in the question, a judge will easily be able to reach the point of ordering a third torture session. Question 32 Is there a basis in natural justice and statutory law for certain people’s saying that torture should not be repeated more than three times? I do not know any written law which says that this is received practice but, based on common scholarly opinion, I think that in practice it is done as something which is consistent with justice. (See [Alfonso] de Castro held this view, Book 2, advice 199, number 5; [Marco Antonio] Bianchi, Evidence, number 14; [Francesco] Casoni, op.cit., chapter 14; [Ippolito] Marsili on ‘it happens’, column 2 at the line ‘and he can be put’, and advice 8, number 37, and on ‘to be repeated’, number 15; [Giulio] Claro, question 64, number 32; Cyrillus on the greatest crime, paragraph 11, number 3; [Ippolito] Bonacossa, Common Opinions on Criminal Cases Part 1, at about ‘the person to be tortured should have’;

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21, n. 7, et vot. 6, n. 17, Bossius tit. De tortur. n. 44, Carrer. tit. De indiciis. n. 194, et seq. Bertazzol. cons. 145, n. 2, Farinac. Quaest. 38, a n. 32, Binsfeld. d. concl. 14. Probatur a simili, quia sit tria onera tutelarum excusant tutorem, lib. tria onera D. de excus. tut.; item repetitio de dando ad trinam restringitur, ne haeres nimium gravetur, lib. Fideicommissa § si quis decem. D. de leg. 3, nam teste philosopho tria sunt omnia, et torturis certus aliquis terminus erat praefigendus. Bossius sup. dicit se a nullis bonis iudicibus, sed a solis carnificibus vidisse hunc numerum transgredi. Si tamen post tertiam vicem iudex aliquis reperiret nova indicia urgentissima, putem in rigore posse ulterius tendere. Nam ista consuetudo non plus ligat, quam faceret ius scriptum; et posset intelligi de omnibus indiciis quae tertiam vicem praecedunt, quomodo enim censebuntur expurgata, quae prius ignorabantur? Fateor hoc dictum novum, sed non quia novum caret optima ratione, ut ostensum, et confirmatur prox. quaest. 33. quaestio xxxiii An illae tres vices sint intelligendae de uno die, vel de tribus diebus interpolatis? Quod non nisi de tribus diebus interpolatis, patet ita ut inter singulas quaestiones dies viginti quatuor horarum intercedat, ut terror et dolor praecedens resideat, et novus metus ac cruciatus gravior formidabiliorque efficiatur: Dixi d. vers. quoad iterationem, et tenuit post citatos prox. quaestione Farinac. d. quaest. 38, n. 103. Nec ullius memini, qui scripserit uno die ter reperi torturam posse. Nisi quod Baiard. ad Clarum s. videatur insinuare, quod commune illud dictum Pauli Castrens. et aliorum fallat in atrociotibus. Equidem limitatio aequitate non caret, et in nostro crimine non raro foret necessaria, et probatur a simili; sic enim in atrocioribus sceleribus plusquam tres ictus in qualibet tortura dari posse docuit Carrer. Tract. de indic. et tortur. fol. 163; certa enim reg. in huiusmodi tradi non potest: vide supra quaest. 24. et 25.

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[Tommaso] Grammatico, advice 21, number 7 and verdict 6, number 17; [Egidio] Bossi under the heading ‘torture’, number 44; [Lodovico] Carerio, heading ‘evidence’, number 194 and what follows; [Bartolomeo] Bertazzoli, advice 45, number 2; Farincacci, question 38, from number 32; [Peter] Binsfeld, op.cit, conclusion 14.) It is proved from a similar instance, because in the case to which I am referring, three burdens of guardianship excuse the guardian [from further burdens], (‘three burdens’, Digest, ‘justified excuses’ [= 27.1.5].) Likewise, repetition involving giving up to three times is restricted so that the heir is not too badly incommoded, (‘trusts’, paragraph ‘if someone [leaves] ten [gold pieces,’ Digest, ‘legacies and trusts,’ 3 [= 32.11.18]), because, as the Philosopher [Aristotle] bears witness, everything consists of threes and some fixed end should be put to tortures. Bossi, supra, says he has not seen any good judges exceed this number, only butchers. But if a judge were to find very pressing fresh evidence after the third time, I think he could go further in severity, because this custom does not bind him to a greater extent than the law does. This could also be understood of any evidence which precedes the third time, because how will evidence they did not know about before be thought to clear [the accused]? I acknowledge that this is a new idea, but not that its newness lacks very good reason, as I have shown and as is confirmed by the next question, number 33. Question 33 Should one interpret three occasions as referring to a single day or to three days with an interval between them? This clearly means three days, with an interval of twenty-four hours between each interrogation, so that the earlier fear and pain may remain and fresh, and more serious and more frightening fear and torment may take effect. (I said this earlier at ‘with respect to repetition’ and Farinacci, following the authorities cited in the next question, thought so too: question 38, number 103.) I do not recall anyone who has written that torture can be repeated three times on a single day, apart from something which [Giambattista] Baiardi seems to introduce into Claro [loc.cit.] supra—that the common opinion of Pietro di Castro and others is mistaken in the case of more dreadful crimes. Putting a limit, in fact, does not lack fairness, and in the crime we are discussing it would not infrequently be necessary. This is proved by something similar, because [Lodovico] Carerio tells us that in the case of more dreadful crimes any torture can last for longer than three minutes, (Treatise on Evidence and Torture, folio 163). A firm rule, then, cannot be given in this case. (See supra, questions 24 and 25.)

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quaestio xxxiv Quid si reus tot delicta commisisset, quod examen uno die absolvi non posset?

463

Ratio dictat, et necessitas veritatis indagandae ad iustitiae administrationem exigit, de iis | quae supersunt alio die examen institui. Ideo si quis de quinque diversis criminibus foret delatus, et ex indiciis gravibus suspectus, et de tribus tantum delictis tres quaestiones et examina consumpta, de reliquis toties torquendus erit, donec examen de iis fuerit perfectum et absolutum. Ita dd. Friburgenses, qui probant, quia de omnibus debet examinari, et non fuit examinatus de prioribus, confirmant a simili, sicut reus sufficienter, hoc est bis aut ter tortus, atque contra se crimen confessus, quarto aut quinto torqueri potest ad detegendum socios, quia ratione sociorum numquam fuit tortus: Binsfeld. d. lib. 7 concl. 13. Ita ratione alterius delicti, de quo numquam est tortus, repeti potest quaestio, et quidem toties, donec fuerit de omnibus examinatus. Si quis consequentiam negaret, probo: quia plus interest reip. scire crimen huius rei, quam socios ipsius criminis, nam et novi criminis novos seu alios socios est detecturus. Deinde non est maior ratio cur torqueri possit de uno crimine, quam de alio, immo si prius esset examinatus de levioribus, foret maior ratio eum examinari de gravioribus reliquis. Denique propter solemnitatem illam numeri, quae est mere iuris positivi, non decet iudicem, quidquam relinquere indiscussum, aut indiscrete, ac negligenter, praecipitanterve procedere.

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Question 34 What [does one do] if the accused has committed so many offences that his examination could not be completed in a single day? Reason dictates, and the need to investigate the truth in order to administer justice demands, that one set aside another day to examine what is left over, and therefore if anyone were to have been charged with five different crimes, was under suspicion because of weighty evidence, and three sessions of interrogation and examination had been used up on only three of the offences, he ought to be tortured in connection with the rest as often as it takes to complete and finish investigation of them. This is what the scholars from Freiburg say and, as proof, because he ought to be interrogated about all of them, and was not interrogated about earlier [offences], they confirm it by means of a parallel case—that of a prisoner who has been tortured sufficiently, (that is, twice or three times), and has confessed to being guilty of the crime. He can be tortured a fourth or fifth time in order to get him to disclose the identity of his associates, because he has never been tortured on the subject of his associates, (Binsfeld Book 7, conclusion 13.) So, when it comes to a second offence concerning which he has never been tortured, his interrogation can be repeated, and repeated as often [as it takes], until he has been interrogated about all of them. Suppose anyone were to deny this conclusion. I prove it because it is more in the interests of the state to know this accused’s crime than it is to know his actual criminal associates, since he is going to disclose the associates—recent or not—of the recent crime in any case. Secondly, it is not a particularly good idea for him for him to be tortured about one crime than about another, especially if he were interrogated about less important things first. It would make better sense for him to be interrogated about the more serious things which remain [to be investigated.] Finally, because the number [three], which is merely that of manmade law, is the one which people usually use, it is not fitting for a judge to leave anything unconsidered and to proceed without due care, without due heed, and with undue haste.

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quaestio xxxv An consuetudines locorum, quoad modum torturae simpliciter sequendae sint, cum magna sit differentia personarum, indiciorum, criminum, ita quod non semper uno et eodem modo possit procedi, et casus, causae et genera tormentorum sive lege, sive consuetudine nequeant determinari? Fori consuetudo vim legis obtinet: Cin. et Bald. in lib. 1 ad fin. cap. quae sit longa consuetudo. Marsil., singu. 118, Afflict. decis. 135, n. 3, et decis. 233, n. 5, Felin in cap. 2 De rescript.: ideo consuetudines locorum, usus et stylus curiarum sequendus iudicibus, lib. 3 § fin. D. de test. cap. quam gravi. de crimi. fals., Barth. et alii in lib. fin cap. de iniur. et in lib. iurisperitos. D. de excusat. Etiam in gravioribus et attocioribus: Clarus lib. 5 §1. n. 6, Menoch. De arbit. cas. 474, n. 62, Mascard. concl. 1317, n. 47, Farinac. quaest. 43, n. 144, Bursat. cons. 20, n. 67, et cons. 69, n. 25, et ideo sic in praesenti tenuerunt dd. Patavini. Sed dd. Friburgenses fatentur iudices a novis et inusitatis in provincia torquendi modi abstinere debere, et in hoc crimine consuetis et solitis uti (citant Binsfeld. Farinac. et alios); si tamen modus torturae in provincia receptus esset admodum remissus, et pro criminis gravitate et personae qualitate non satis acerbus, tunc is qui est consuetudine generali, aut legum interpretatione in aliis provinciis approbatus, sequendus foret. Quemadmodum enim grassantibus delictis supplicia exacerbanda sunt: lib. aut facta. § fin. D. de poen. Ita et quaestionum modi, lege aut consuetudine permissi, sunt intendendi. Vera haec sunt, nec dubito ex iusta causa mutari posse; sed a quibus, an ab omnibus iudicibus? Non arbitror. De iudicibus inferioribus, qui in statuta iurant, sequor sententiam dd. Patavinorum, nec puto illos arbitratu suo consuetudines et statuta, quibus subsunt, mutare vel transgredi posse, oc|currente necessitate, Principem consulant. Summos vero iudices, qui iudicant auctoritare suprema, nec iusiurandum

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Question 35 Should one follow local custom undeviatingly, as far as method of torture is concerned, since there are great differences between persons, evidence, and crimes, and therefore it is not always possible to proceed according to one and the same method, and the occasions of and reasons for and types of torture cannot be determined either by law or by custom? Regular court practice acquires the force of law. (See Cina [da Pistoia] and Baldo on ‘what kind of thing long-established custom is’, Codex [= 8.52]; Marsili, Individual Cases, 118; [Matteo d’] Afflitto, decision 135, number 3 and decision 233, number 5; [Maria Sandeo] Felino in chapter 2 of his rescript.) Therefore, judges should follow local customs, usages, and court procedures, (Book 3, last paragraph on Digest, ‘witnesses’ [= 22.5.24]; the chapter ‘how serious’ on the crime of false coining; Bartolomeo [da Sassoferrato] and others on the end of Codex, ‘injurious actions’ [= 9.35], and ‘legal experts’, Digest, ‘justified excuses’ [= 27.1.30. preface]), even in more serious and dreadful cases, ([Giulio] Claro Book 5, number 6, paragraph 1; [Giacomo] Menochio, Cases etc., case 474, number 62; [Giuseppe] Mascardi, conclusion 1317, number47; Farinacci, question 43, number 144; [Francesco] Borsati, advice 20, number 67 and advice 69, number 25.) So, this is the opinion of the scholars from Padua in the case under discussion. The scholars from Freiburg, however, maintain that judges ought to refrain from novelties and unusual [practices] when it comes to the method of torture used in their territory, and that in the case of this crime, people should use customary and usual methods. (They cite Binsfeld, Farinacci, and others.) But if it were accepted that the method used in the method of torture in their territory was far too lax and not harsh enough for the seriousness of the crime and the character of the offender, then they should employ the method approved by general custom, or the interpretation of the laws approved by other territories because, just as torture should be increased in the case of offences involving robbery, (end of paragraph ‘or deeds’, Digest, ‘penalties’ [= 48.19.16. preface]), so the methods of interrogation permitted by law or custom should be extended. This is true and I have no doubt [the method] can be changed for a good reason—but by whom? By every judge? I think not. When it comes to judges in the lower courts who take an oath to uphold the statutes, I follow the opinion of the scholars from Padua, and I do not think that these judges can change them at will or go beyond the customs and statutes to which they are subject. If the necessity to do so arises, they should consult their prince. On the other hand, I think that, since judges in the higher

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illud praestant, quoniam astringuntur sola aequitate, et ordinationibus Principum (si quas habent sancitas) puto, non quidem pro libito statuta illa et consuetudines transgredi posse (vix id fiat sine gravi scandalo), sed posse prudenti arbitrio illas moderari, et interpretari pro exigentia casus occurrentis. Simili distinctione aliqui dd. utuntur in quaest. an iudex contra privatam scientiam ex allegatis et probatis iudicare teneatur? Certum est plus debere licere supremis illis, quam infimis. In Germania sequendae constit. Carolinae, cum congrua peritorum interpretatione. quaestio xxxvi An etiam iudicibus inferioribus a superiore modus torturae praescribi possit? Si quem praescribit iustus non est, nec legibus, nec rationi consentaneus, v.g. ut debilem supra vires, vel robustum sine ullis indiciis aut inauditum torqueat et similia, nequit dubitari id nec ipsi licere, nec inferiorem teneri parere. Nam ius divinum et naturale, cui Princeps subest, vetat ullum indebite laedi, ideo laudantur a dd. qui talibus mandatis noluerunt obtemperare, ut afflictus et alii. Et hominem novi, qui anno 1587. Luxiburgi, maluit Praesu. Praetorio milit. dignitatem relinquere, quam torquere quendam de quo indicia sufficientia non habebat. Quod asserui tenent Isern. in. cap. 1, de pact. tenen. Grammat. cons. 45, n. 35, et voto. 32, n. 8, Clarus d. quaest. 64, n. 13, Roland. cons. 12, n. 47, lib. 3, Farinac. quaest. 37, n. 74. Et tunc sic tortus ex confessione sua damnari non posset, quia indebite extorta. Gigas d. tit. Quomodo et per quos q. 1, n. 32, Ant. Gomes. d. tom. 3 Rub. De tortur. n. 25, Carrer. in 2, p. § circa sextum n. 5, Bursat. cons. 201, n. 87, Farinac. d. q. 38, n. 78. Iudex etiam sindicatui subiaceret. Lad. de Imola cons. 184.

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courts, who give judgement with the highest authority and do not take the oath I mentioned, since they are restricted only by justice and princely ordinances, (provided these have the princes’ sanction), can go beyond those statutes and customs—not, of course, because they feel like it, (that could scarcely happen without serious scandal)—and can modify them after careful consideration, and interpret them as the case they are dealing with demands. Some scholars use a similar distinction in relation to the question, is a judge bound to give judgement contrary to his personal knowledge, in the light of what has been alleged and proven? It is certain that this should be more permissible to judges in the highest courts than to those in the lowest. In Germany the Carolina Code should be followed, along with its appropriate interpretation by experienced [judges]. Question 36 Can the method of torture be prescribed by [a judge] from a higher court to judges in the lower courts? If the method he prescribes is not just, and is not in accord with the laws or with reason—for example, that it tortures someone too weak to withstand it, or someone who is strong, but against whom there is no evidence, or the method is unheard of, and so forth—there can be no doubt that he is not permitted to do this, and that a judge in a lower court is not obliged to obey him. This is because divine and natural law, to which the prince is subject, forbids anyone to be harmed without just cause. This is why scholars such as [Matteo d’] Afflitto and others praise those who have been unwilling to conform to such instructions. I, too, knew a man who, in 1587 in Luxembourg, preferred to relinquish his post to the Bishop’s bodyguard rather than torture someone about whom there was insufficient evidence [to warrant it]. (What I have said is the opinion of [Andrea da] Isernia in chapter 1 of Agreements to be Kept; [Tommaso] Grammatico, advice 45, number 35 and verdict 32, number 8; [Giulio] Claro, question 64, number 12; Rolando [della Valle] Book 2, question 12, number 47; Farinacci, question 37, number74.) Under those circumstances, someone who has been tortured this way cannot be found guilty as a result of his confession because the confession has been extorted without just cause. ([Girolamo] Giganti, heading, ‘how and by whom’, question 1, number 32; Antonio Gómez Volume 3, heading ‘torture’, number 25; [Lodovico] Carerio Part 2, paragraph ‘round about the number six’, 5; [Francesco] Borsati, sdvice 201, number 87; Farinacci, question 38, number 78). The judge would also be subject to a tribunal, (Alessandro [Tartagni] de Imola (?), advice 184.)

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Sed si praescribant iusta, v.g. tale vel tale genus tormenti, vel modum et temperamentum aequitati consentaneum, non dubito quin sibi subditis iudicibus possint praescribere: hoc de Principe diserte docent Bald. in cons. 427, n. 9, lib. 5, et Roman. cons. 451, et sic toto tit. De quaestion. D. et C; videmus leges hac de relatas, et habemus, text. in lib. Quaestionis modum D. De quaest.: favet ratio, quia inferiores isti iudices ut plurimum sunt idiotae, simplices, et rudes, et indigent instructione; maxime in casu individuo. In genere, et ut pro regula omnium casuum id fiat, vix arbitror expedire nisi cum addito, ut si qua nascatur specialis causa dubitandi, superiorem consulant. Id dico propter varietatem circumstantiarum, quae in quaestionibus plurimi faciendae. quaestio xxxvii An sit danda copia indiciorum et processus informativi, in criminibus atrocioribus exceptis? Vel an sufficiat indicia a iudice reo proponi, eumque incontinenti cum suis defensionibus audiri, cum isto modo melius veritas haberi possit?

464

Clarissimi dd. Patavini ad hanc q. accurate admodum et docte responderunt, in hanc | sententiam; iure scripto decisum esse, ut reis detur indiciorum copia, ne opprimantur, aut defensionis facultas eis tollatur: ex text. in lib. unius § cogniturum D. de quaestionibus. et lib. Desertorem § si ad diem D. de re milit. lib. Defensionis facultas cap. de iur. fisc., cap. qualiter et quando de accusat. clem. Pastoralis de re iudic. unde id infiniti dd. decidunt, quos habes apud Clar. quaest. 49, Roland. cons. 12, n. 42, libro 3, Rimin. Iun. cons. 98, n. 59, lib. 1, et Farinac. quaest. 39, n. 1. Quod procedit etiam in crimine laesae Maeiestat.: d.

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If, however, they prescribe things which are just—such and such a kind of torture, or a method and balanced mixture [of methods] consistent with justice—I have no doubt that they can prescribe them to judges who are subject to their authority. (Baldo says this clearly in relation to the prince in Book 5, advice 427, number 9, as does [Lodovico Pontano] ‘Romano’, advice 451.)350 We also see laws related to this in the whole section entitled ‘examination’ in the Digest and the Codex, and we have a text in ‘the method of interrogation’, Digest, ‘examinations’ [= 48.18.7]. Reason is in favour of this, because judges in the lower courts are very frequently stupid, ingenuous, and unqualified, and lack guidance, especially when it comes to an individual case. Generally speaking, and so that this can be used as a rule to cover every case, I think [prescription from a higher court] is not particularly advantageous unless one adds that, if a particular reason for doubt arises, they should consult a judge in a higher court. I say this because of the variation in attendant circumstances which take place during a very large number of interrogations. Question 37 Should a copy of the evidence and information about the trial be given in the worst cases of crimes which fall outwith the normal legal rules, or is it sufficient for the judge to tell the accused what the evidence is, and for the accused and those who are defending him to be given a hearing at once, because this can be a better way of getting at the truth? The very honourable scholars from Padua have replied most carefully and learnedly to this question with the following opinion. It is clearly expressed in written law that a copy of the evidence be given to accused persons so that they are not taken by surprise or deprived of the ability to defend themselves. (Text ‘of one’, paragraph ‘about to find out’, Digest, ‘examinations’ [= 48.18.18. preface]; ‘deserter’, paragraph ‘if on the day’, Digest, ‘military matters’ [= 49.16.3.7 and 49.16.13.6]; ‘the ability to defend’, Codex, ‘fiscal law’ [= 10.1.7. preface]; chapter ‘how and when’ on clemency for the accused, Clement [v], Pastoralis [Cura], on judicial procedure.) A very large number of scholars base their decision on this. You have them in [Giulio] Claro, question 49; Rolando [della Valle] Book 3, advice 12, number 42; Riminaldi the younger Book 1, advice 98, number 59; and Farinacci, question 39, number 1. This is also the procedure in the

350

Lodovico Pontano, ‘Romano’ (c.1409–c.1439) wrote a collection of legal advice (‘Consilia’) which was published in 1555.

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clem. Pastoralis Boss. de indic. numer. 78, Roland. supr. n. 59, cum seqq. Osascus decis. 79, n. 12, Personal. tractat. de indic. n. 22, et in crimine asassinii, Carrer. tit. De indic. et tortur. § circa quintum, n. 15, Hieron. Laurent. decis. Avinion, 15, et Sodomiae, Farinac. supr. n. 111, et parricidii ac veneni, Grammat. vol. 30, n. 2 et haeresis. Bald. cons. 95, vol. 1, Boss. De indic. ante n. 78, et tit. De haeret. n. 9, Paris. cons. 2, n. 155, lib. 4, Roland. d. cons. 12, n. 61, Personal. d. n. 22, Vulpell. cons. 21, n. 3, denique in omnibus atrocioribus et quantumvis enormibus, Marsil. § diligenter. n. 157, Gramm. vol. 34, in fin., Carrer. supr. quae est communis sententia iuxta Farinac. d. q. 39, n. 41, et nullibi in iure contrarium reperiri affirmavit Ioann. Maria Monticella, regu. crimen. 4, n. 3, et sane videtur esse iuris naturalis; et procederet etiamsi reus malae opinionis et famae argueretur, Farinac. ibid. n. 47, et subesset timor subornationis testium ad defensionem, propter rei potentiam, ut plene post alios Farinac. n. 70 et id quamvis reus non adferat quales defensiones velit instituere: idem n. 75; et si iudex ante datam copiam indiciorum et decretas defensiones ulterius procederet, et torqueret, confessio reum non premeret, foretque processus totus nullus, per d. Clement. pastoralis, Farinac. n. 84. Quae iure ordinario certa putaverim; et propterea ubi non est alia consuetudo, vel Principis ordinatio, sic esse iudicibus observandum, ut securius procedant. Sed quia in quibusdam provinciis consuetudo est, ut indicia tantum reo proponantur, et reus in continenti cum suis defensionibus audiatur, quam praxim aiunt in Bavariae ducatu observari, et de Mediolanensi testatur Clarus, d.

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crime of treason, (Clement, Pastoralis; [Egidio] Bossi, Evidence, number 78; Rolando [della Valle], op.cit., supra, number 59 and what follows; [Ottaviano Cacherano d’] Osasco, decision 79, number 12; [Francesco] Personalis, Treatise on Evidence, number 22), and in the crime of assassination, ([Lodovico] Carerio, heading ‘evidence and torture’, paragraph ‘at about the number five’, number 15; Jérôme des Laurens, Decisions of the High Court of Avignon, 15),351 and in the case of sodomy, (Farinacci, op.cit., supra, number 111), and of parricide and poisoning, ([Tommaso] Grammatico Volume 30, number 2), and heresy, (Baldo Volume 1, advice 95; [Egidio] Bossi, Evidence, before number 78 and the heading ‘heretics’, number 9; Paride [del Pozzo] Book 4, advice 2, number 155; Rolando [della Valle], advice 12, number 61; [Francesco] Personali, op.cit., number 22; [Ottaviano] Volpelli, advice 21, number 3), and finally in all the more atrocious crimes, however dreadful, ([Ippolito] Marsili, paragraph ‘carefully’, number 157; Grammatico at the end of Volume 34; Carerio, as above.) According to Farinacci, (questions 39 and 41), this is the common opinion, and Giovanni Maria Monticelli maintains that one finds nothing contrary to it in law, Regulation of Criminal Cases 4, number 3.352 It certainly seems to be in accord with natural law and would be [the correct] procedure even if it were argued that the accused was badly thought of and had a bad reputation, (Farinacci, ibid., number 47), there was a fear that witnesses for the defence would be suborned because the accused had the ability to do this, (as Farinacci, following others, clearly says in number 70); and, in spite of the fact that the accused could not produce the kind of defence he wanted to provide, (Farinacci, number 75), and the judge was proceeding with the trial before he had given the accused a copy of the evidence and the agreed defence documents, and was having him tortured, a confession would not sink the accused, and the entire trial would be null and void, (Clement’s Pastoralis and Farinacci, number 84.) I should think this is certain, according to ordinary law, and when there is no other customary practice or princely ordinance judges should take note of what I have said so that they can proceed without further worry. But in a number of territories, it is the custom simply to put the evidence in front of the accused and for the accused to be given an immediate hearing with what he has to say in his defence. This, (they say), is the practice in the Duchy of Bavaria, and Claro testifies that it is done in Milan as well, (Book 5, para-

351 352

Jérôme des Laurens was Principal of the University of Avignon from 1551 until 1600. His Decisiones Rotae Avenionis appeared in 1589. There is little or no information about Monticelli except that he belonged to the sixteenth century and published a book, (although not under the title given by Del Río), Golden Compendium of Witnesses on Civil and Criminal Matters, Venice 1575.

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lib. 5 §1 n. 10, in fin., non ausim hanc praxim damnare, quam etiam esse licitam tenent dd. Friburgenses, quando iudex intelligit subesse periculum, ne per talem communicationem debita processus expeditio frustretur, eo quod advocati velint minutias (ut solent) discutere; vel, ut ferme fit, reus inde pertinacior ad negandum efficeretur. Probatur haec sententia, quia fatentur qui contra sentiunt Principem et qui statuendi habet arbitrium sic ordinare posse, quia hoc non est omnino tollere defensionem, sed tantum immutare ordinem iuris positivi, et modum defensionis ac solemnia eius, quibus omnibus Princeps est superior: Afflict. decis. 391, n. 4, et post alios Farinac. d. quaest. 39, n. 23 et 26, et sic servari venetiis in Decemvirum tribunali, scribunt Gigas: in tit. quomodo et qualiter quaest. 19, et Decian. lib. 7, criminal. cap. 42. Fatentur iidem licere iudici si illi videatur, defensiones in quibusdam restringere, veluti ne possit reus colloqui nisi cum suis advocatis et procuratoribus, vel etiam non nisi praesente aliquo ministro publico: Ioseph. Ludovic., commun. opini. conclus. 38. Item restringere tempus ad faciendas defensiones et decernere, quod loco copiae exhibeantur advocatis origina|lia indicia per eos videnda: Farinac. n. 112, cum seqq. Unde fit argumentum validum, si haec de quibus quaeritur sunt tantum iuris positivi, quia ad solemnia et modos defensionis spectant, quae statuta sunt iure positivo, et non ad defensionem simpliciter, quae est iuris naturalis; item si quod detur in scripto, vel dicatur viva voce; et quod brevior vel prolixior terminus tempusque reo ad defensionem assignetur, sunt etiam iuris positivi; sane, cum consuetudo vim legis obtineat; poterunt per illam haec omnia mutari, maxime quando illa fuit a Principe tolerata, ut in casu nostro. Item cum iudex in his criminibus sit liber a regulis iuris positivi communis (ut saepe dictum) non esse illi quod proponitur, si expedire iudicet, illicitum. Denique reddant differentiae rationem, cur quod in thesi ponitur iudici non liceat, et quae ipsi de modo mutando, et tempore restringendo concedunt, liceant? Non puto posse dari, nisi forte quod hic maius praeiudicium rei sit, quod negaverim.

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graph 1, number 10 at the end.) I should not venture to condemn this practice, and the scholars from Freiburg also maintain that when the judge perceives there is danger at hand, this is legal, so that due expedition of the trial may not be frustrated by his having to communicate [the documents] to the accused because his advocates want to discuss the ‘minutiae’, as they usually call them: or, (and this hardly ever happens), so that this may not make the accused more stubborn in his denials. This opinion is proved, because those who think the opposite acknowledge that the prince and the person who has the authority to determine the matter can arrange things this way, and because this does not remove the defence altogether, but merely changes the judicial procedure of man-made law, the mode of defence, and the usual ways of conducting it. The prince’s authority is superior to all these. ([Matteo d’] Afflitto, decision 391, number 4 and, following others, Farinacci, question 39, numbers 23 and 26). [Girolamo] Giganti, (heading ‘how and in what way’, question 19), and [Tiberio] Deciani, (Criminal Practice Book 7, chapter 42), write that this is observed by the Council of Ten in Venice. They also indicate that it is permissible for a judge, should he wish it, to restrict certain people’s defence—so that the accused cannot speak to anyone except his advocates and proctors, for example, or unless some public official be present as well, (Giuseppe Ludovisi, ‘common opinion’, conclusion 38). Likewise, he can restrict the time allowed for making a defence, and decide to show the advocates the originals of the documentary evidence so that they can see them instead of a copy, (Farinacci, number 112 and what follows.) Consequently, the argument becomes a strong one if one’s questions about these points relate simply to man-made law because it is concerned with customary practices and the methods of defence, which are things established by man-made law, and do not simply relate to defence, which belongs to natural law. The same can be said if the kind of thing given in writing, or communicated viva voce, because a shorter or longer limit and time is assigned the accused for his defence. These, too, belong to man-made law. Certainly, since regular court practice derives its force from law, it will be able to change all this, most especially when the prince has given it his support, as in the case we are dealing with. Likewise, since in these crimes the judge is free from the rules of common man-made law, (as has often been said), what is being proposed here is not illegal for him, if he judges it expedient. Finally, distinctions explain why it may not be permissible for a judge to do what is set out in the proposition and what he is allowed to do in regard to changing the method and restricting the time [allowed the defence]. I do not think [this information] can be given unless, by chance, because this is more prejudicial to the accused in this case—something I should deny.

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quaestio xxxviii An sint concedendi advocati in atrocioribus criminibus, cum soleant ex hoc rei magis indurari, et instigari ad negandum? Quod non sint concedendi, videtur primo probari rarione, quia videntur sic indicia retardari. Secundo quia etiam in causa haeresis videntur negari posse, quod Simancas admittit. Tertio quia probatur claro textu in lib. per omnes. 6, cap. de defens. civitat., ex quo illud multi asserunt: Barbat. Tract. de praestant. Cardinal. 1 p. q. 9, allegans pro ea Baldum. Angel. in Pract. vers. vestem etiam caelestem. n. 12, Marsil. in pract. § diligenter. n. 164. Quarto, hoc pertinet ad modum defensionis, ut per se vel per alium; modus autem subest arbr. iudicis ut dictum, q. 37. Quinto ius scriptum in aliquibus criminibus reis advocatos denegavit, ut in crimine laesae maiestatis divinae per haeresim: cap. fin. De haeret. in 6, et humanae, lib. quisquis § denique cap. ad leg. Iul. Maiesta. Barth. in Extravag. ad reprimendum in gloss. sine strepitu, Gigas tit. qualiter in crimin. laesae Maiestat. proced. quaest. 4, item furibus insignibus et grassatoribus seu latronibus viarum: lib. Per omnes cap. de defens. civitat. Mars. supr. et lib. 1, n. 20, de quaest. Roland. cons. 12, n. 62, lib. 3. Ex his videtur aliquid probabilitatis prima facie haec opinio habere, sed re vera non est secura. Omnino tenendum, etiam in exceptis criminibus non posse denegari reis advocatum, nec ratio addita sufficit ad denegandum. Hanc unanimiter tenuerunt in suis consiliis dd. Ingolstadienses anni 1590, et rursus anni 1601. Friburgenses, Paravini, et Bononienses, et est recepta praxi inquisitorum in haeresi, cui nostrum crimen exaequatur, et communi dd. calculo: Sprenger. part. 3 Mallei malef. Clarus § haeres. n. 17, etiam si rei non petant. Eimericus in director. inquisit. tit. de defens. reor. et ibi in commu. Penna, Repertor. inquisit. in verb.

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Question 38 Should advocates be appointed in cases involving the more dreadful crimes, since that means the accused are usually more obdurate and feel encouraged to deny [the charges]? That they should not be appointed seems to be proved (i) by reason, since this appears to mean that evidence is held back; (ii) because this seems to be denied in the case of heresy, too, as [Diego de] Simancas says; (iii) because it is proved in a well-known text, ‘throughout every region’, Codex, ‘the defenders of cities’, 6 [= 1.55.6], and many people say the same, based on this text: [Andreas de] Barbatia, Treatise on the Pre-Eminence of Cardinals Part 1, question 9, adducing Baldo in support;353 Angelo in his Practices, at the words ‘heavenly clothing, too’, number 12. [Ippolito] Marsili, Practices, paragraph ‘carefully’, number 164. (iv) This relates to the mode of defence, made either personally or through someone else. But the mode [of defence] is subject to the judge’s decision, as has been said, (question 37.) (v) Written law has denied accused persons advocates in the case of a number of crimes, such as that of treason against God through heresy, (last chapter of the Decretal on heresy), and human treason, (‘anyone’, paragraph ‘finally’, Codex, ‘Lex Julia on treason’ [= 9.8.5 preface and 9.8.5.2]; Bartolo [da Sassoferrato] in the supplement to ‘repressing’ in the gloss ‘without a loud noise’; [Girolamo] Giganti, heading ‘how to proceed in the crime of treason’, question 4; likewise against notable thieves, footpads, and highway robbers, ‘throughout all regions’, Codex, ‘the defenders of cities’; Marsili loc.cit., supra and Examinations Book 1, number 20; Rolando [della Valle] Book 3, advice 2, number 62.) From these, one sees that, prima facie, this opinion has some degree of qualification for approval, but in fact it is not without problems. ‘It is to be taken entirely for granted that in crimes which fall outwith the normal legal rules the accused cannot be denied an advocate.’ The scholars from Ingolstadt, Freiburg, Padua, and Bologna held this opinion unanimously in their advice of 1590 and again in 1601, and it has been accepted in practice by inquisitors, and by the common vote of scholars, in the case of heresy, to which the crime we are considering equates. ([Jakob] Sprenger, Hammer of Women Who Work Harmful Magic Part 3; [Giulio] Claro, number 17, paragraph ‘heresy’; [Nicolas] Eymeric, ‘even if the accused do not ask’, Handbook for Inquisitors, 353

Andreas de Barbatia (c.1410–1479). His treatise was published in Bologna in 1487. If the following ‘Angelo’ refers to Angelo Gambiglioni, it is not clear to which of his books Del RÍo is referring, since he did not produce one with the title ‘Practice’.

744

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advocatus, Humbertus in Praxi Iudic. eod. verbo. Simanc. Cathol. instit. tit. 5, n. 2, Boss. de indic. contra tortur. n. 78, in fin. Roland. cons. 12, n. 6, lib. 3, et alii passim. Item probatur ratione. Iure naturali cautum, ut qui per se nequit, possit se per alium defendere; sagae plerumque sunt illitteratae, nec se norunt | defendere ergo debent per alium defendi, alioqui illis indirecte tolleretur defensio, quae nulli tollenda. Confirmatur, quia iudex ex officio tenetur curare ut indefensi defendantur: lib. si non defendantur D. de poenit. Item est conforme Carolinae constitutioni, art. 47, ubi addita ratio, quoniam alii ex simplicitate, alii ex terrore nequeunt suas defensiones proponere; et art. 14, vetatur ne ad carcerem aditus iis praecludatur, quorum opera ad defensionem suam rei uti cupiunt. Si dicas hoc statui in criminibus non exceptis contra, quoniam in iis quae iure naturali reis debita sunt nullum discrimen est exceptorum et non exceptorum criminum. Ad argumenta in contrarium facilis est responsio. Ad primum, negatur retardari, nam occurri potest huic retardationi primo si statuatur advocatis, ut cum reo numquam soli sint, sed semper cum eo agant praesente iudice, fiscali, vel notario, ut sic omnis subornatio instigatio et induratio ad negandum impediatur: Farinac. d. q. 39, n. 14 et n. 112, et seqq. Item poterit cogi advocatus ut sub iuramento promittat se reum ad negandum delictum non instigaturum aut subornaturum, ut iubet Carolina constit. ordinat. 88, et non usurum nisi iustis defensionibus, et cum reum viderint criminosum esse, se cessaturum a defensione, Decian. in Tract. crimin. tom. 1, lib. 5, cap. 37, Baiard. ad Clar. § haeresis. n. 22, et clarissime cautum Instruction. inquisitor, quas referunt Simincas et Penna. sup. Deinde praesupponitur advocatum fore virum probum, gnarum

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heading ‘the defence of the accused’; Umberto [Locati] on the same word in his Judicial Practice;354 [Diego de] Simancas, Catholic Institutions, chapter 5, number 2; [Egidio] Bossi, Evidence, against torture, at the end of number 78; Rolando [della Valle] Book 3, advice 12, number 6; and others passim.) Likewise, it is proved by reason. It is provided for by natural law so that someone who cannot mount his own defence can be defended by someone else. For the most part, witches [sagae] are uneducated and do not know how to defend themselves, and therefore ought to be defended by someone else, otherwise a defence which should not be taken away from anyone would be taken away from them indirectly. This is confirmed, because a judge is obliged by his office to make sure that those with a defence are defended, (‘if they are not defended’, Digest, ‘penalties’ [= 48.19.19].) Likewise, it is conformable to article 47 of the Carolina Constitution, where there is an additional reason—that some people because of simple-mindedness, and others because of fear, cannot mount their own defence, and it is forbidden by article 14 to stop someone, whose service the accused wish to make use of for their own defence, from coming to them in prison. If you say that this is decreed in the case of crimes which do not fall outwith the normal legal rules, the opposite is the case, since when it comes to what accused persons are owed under natural law, no distinction is made between crimes which fall outwith the normal legal rules and those which do not. Replying to the arguments against [this proposition] is easy. To the first, that evidence is kept back, one denies that this can happen if, in the first place, advocates are instructed that they can never be alone with the accused but must always deal with him in the presence of a judge, a procurator fiscal, or a notary. This way, any kind of abetting [the accused] and inciting him to be stubborn in his denying [the charge] is hampered, (Farinacci, question 39, number 14 and number 112 and what follows.) Likewise, the advocate will not be able to be forced to promise, under oath, that he will not incite or suborn the accused to deny the offence, (as the Carolina Code decrees in ordinance 88), and that he will not make use of defence-arguments unless they are just, and that when he sees the accused is guilty he will stop defending him, ([Tiberio] Deciani in his treatise on criminal practice, Volume 1, Book 5, chapter 37; [Giambattista] Baiardi in his additions to [Giulio] Claro, paragraph ‘heresy’, number 22; and, very clearly, the caution of instructions to inquisitors, to which [Diego de] Simancas and [Francisco] Peña refer.) Secondly, it is presupposed

354

Umberto Locati (1503–1587) was Bishop of Bagnoregio. He published Legal Practice in Venice in 1583.

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officii sui, qui nolit in officio suo delinquere; delinqueret autem si instrueret reum ad tacendam veritatem, et non leviter peccaret: Abb. et alii in cap. 1. De test. cogn. D. Thom. 2. 2, q. 69, art. 1 et 2, gloss. in cap. 1, De confess. in 6, Ias. in lib. cum proponas. 2, cap. De pact. Quod si iudex postea deprehendat advocatum tricari, dolose procedere, vel aliquid frustratorie proponere, potest iterum exigere iusiurandum; immo si vehementer praesumat de dolo advocati, potest illius propositionem reiicere, nec curare appellationem, et ultra procedere: Sic post. Innoc. Host. et alios concludit Conrad. Brun. De haeret. in cap. de cautelis. vers. contra improbe petentes. Sane numquam concessione advocati adeo iudicia retardabuntur, ut cum tanto reorum prae iudicio ipsis negari possit, quod iure naturali debetur. Ad secundum, sufficit quod in praxi numquam denegentur, nec admodum probabile est eos denegari posse, nisi in casu mox dicendo in respons. ad supra. Ad tertium argumentum, respondetur dupliciter primo dd. illos mihi videri niti illo textu non bene intellecto. Textus enim agit de patrociniis hoc est defensionibus potentium ambitiosis, illegitimis, extraiudicialibus, et vel violentis, vel dolosis, qui tali patrocinio causa fuerunt ut scelera citius, crebrius, audaciusque committerentur; quod illic in d. 1. per omnes, acute vidit Accurs. Non vero agit de patrociniis advocatorum, in iudiciis admitti solitis, nec argumentum ab illis ad istos posset procedere, nisi constaret istos dolose procedere; tunc autem eos etiam reiici posse dixi. Secundo Responsorium, ut infra ad supra. In quarto argumento falsa est maior, quia istud non peninet ad modum defensionis, sed directe pertinet ad defensionem ipsam, cui per accidens est,

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that the advocate will be a man of probity, knows his duty, and is unwilling to be derelict in it. But he would be derelict in it, and not a little at fault, if he instructed the accused to keep silent about the truth, (Nicolò de’ Tudeschi (Abbas) and others in chapter 1 on the cognition of witnesses; St Thomas [Aquinas] 2.2, question 69, articles 1 and 2; gloss on chapter 1 on confessions, 6 in Giasone [del Maino] on ‘when you propose’, Codex, ‘agreements’ [= 2.3.16]), and if the judge later rebukes the advocate for causing difficulties, being crafty in the way he makes his case, or making false claims, he can make him swear an oath a second time; and indeed, if he has a strong suspicion that the advocate is being deceitful, he can reject his statement and not bother to call him or proceed any further with the case. (This is the conclusion of Konrad Braun, following Innocent and Hostius, in Heretics, chapter ‘precautions’, at the words ‘against those who make improper requests’.)355 Certainly, advocates will never be allowed to hold back evidence in such a way that what the accused are owed by natural law can be denied them in a way which is so prejudicial to them. To the second [argument] it is enough to say that they are never denied [an advocate] in practice, and it is not particularly likely they can be denied one, except in a case I shall come to in a moment in answer to the above. To the third my answer is twofold. First, I think the scholars I mentioned are relying on a text they have not understood very well. The text is dealing with the legal assistance given to defendants in a trial, that is with ways of defending the powerful, which are vainglorious, illegal, extrajudicial, and either violent or deceitful, and those who have used this kind of legal assistance have been the reason for crimes’ being committed sooner, more frequently, and more audaciously. (This is something which Accursius gave acute consideration in ‘throughout all the regions’, op.cit., supra, 1.) The text, however, is not dealing with the legal defence which is usually mounted by advocates’ being given a hearing in the courts, and it would not be possible, either, for evidence to make its way from those advocates to the courts, unless it were agreed that [the advocates] were conducting their defence in a crafty, deceitful way in which case, [as] I have said, it could be thrown out. Secondly, my short response is ‘as below, so above.’356 The major premise of the fourth argument is false because it is not relevant to the mode of defence, but pertains directly to the defence itself to which it belongs by chance, the result being that the defence is made either by the

355 356

Konrad Braun (c.1495–1563) was Professor of Law in the University of Tübingen. He published his Six Books on Heretics in General in 1549. That is, ‘what I am going to say later applies to what I have said earlier.’

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ut per se vel per alium fiat. Ius enim naturale | simpliciter vult non tolli defensionem, tolleretur autem illi nequit seipsum defendere, si per alium non sineretur. Non tolleretur autem, licet non sineretur se defendere scripto, cum possit verbo; vel non sineretur tridui spacio differre, qui potest statim. Unde patet differentia casus propositi in quaest. 37, ab eo qui proponitur in ista quaestione. Ad quintum, respondetur in criminibus istis iurescripto tantum denegari advocatos, quando notorium est reum esse haereticum, rebellem vel conspiratorem in Principem, assassinum, aut insignem furem vel latronem et huiusmodi; sed antequam constat esse talem, advocatus conceditur. Sic leges illas exponunt, et in praxi obtinere testantur: dd. Mantua Benavid. sing. 15, Roland. d. cons. 12, n. 79, lib. 3, Iul. Clar. in § haresis. n. 17, Farinac. quaest. 39, n. 109, et 167. quaestio xxxix An confrontatio sagarum, quae ut plurimum pronae sunt ad revocandum, consulta videatur? Parum movet me quod Sagae pronae sint ad revocandum, nam non omnes tales, et forte pauciores; neque de occultis istis nostrum est iudicare, cap. sicut est, de Simon. cap. erubescant. 32, quaest. 5. Constat ordinarie in huiusmodi, stylum curiae sequendum, Menoch. cas. 474, Mascard. conclus. 1317, n. 47, Farinac. quaest. 43, n. 144. Sed nec stylus ubique idem, nec iste a iure naturali, sed positivo descendit; quemadmodum et illud quod reus qui de se confessus alios nominavit, debet in praesentia nominati cum iuramento asserere sic esse, alias nominatio non operetur: Boer. decis 319, n. 4, Clarus quaest. 2, n. 12, vers. quaero numquid, et Vulpell. cons. 30, n. 7, et cons. 83, n. 8, aut illud quod aliis magis arridet, ut relicto iuramento; reus de se confessus, et qui alium in quaestione nominavit, in ratificatione de se, et aliis, debeat iterum, leviter tamen, torqueri, et in praesentia nominati confirmare nominationem. Farinac. supr. sive illud

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accused himself or by someone else. The meaning of natural law is straightforward: defence must not be taken away [from the accused]. But it would be taken away from someone who cannot defend himself if he were not allowed to be defended by someone else. It would not be taken away, however, even if he were not allowed to defend himself in writing, because he can do so verbally; or if someone who can defend himself immediately were not allowed to defer [the trial] for three days. Consequently, the difference between the case put forward in question 37 and the one put forward here is obvious. My answer to the fifth argument is that they are denied advocates by the written law in these crimes only when the accused is well known to be a heretic, a rebel or conspirator against his prince, an assassin, or a notorious thief or brigand—someone of that kind. On the other hand, before it is agreed he is such an individual, he is granted an advocate. This is how scholars explain the laws and testify that this is how the laws work in practice. (See [Marco] Mantova Benavides, Individual Cases, 15; Rolando [della Valle] Book 3, advice 12, number 79; Giulio Claro in number 17, paragraph ‘heresy’; Farinacci, question 39, numbers 109 and 167.) Question 39 Does a confrontation of witches [sagarum], who in most cases are prone to retract [what they have said], seem to be a good idea? That witches are prone to retract [what they have said] causes me little concern, because they are not all like that—perhaps rather few of them are—and it is not for me to make a judgement on these dissemblers. (Chapter ‘just as it is’; De Simone, chapter ‘let them blush’, 32, question 5.) It is agreed that in the ordinary way where this is concerned, the customary practice of the court should be followed. ([Giacomo] Menochio, case 474; [Giuseppe] Mascardi, conclusion 1317, number 47; Farinacci, question 43, number 144.) But customary practice is not the same everywhere, nor does it come from natural law, but from manmade law and, just as after an accused has confessed what he has done and has named other people, he ought to declare, on oath, in the presence of the person he has named, that what he has said is the truth—otherwise his naming names is useless. (See [Nicolas] Bohier, decision 319, number 4; Claro, question 2, number 12 at about ‘I ask whether’; and [Ottaviano] Volpelli, advice 30, number 7 and advice 83, number 8); or, if he does so without taking an oath, (something which pleases others even more), an accused who has confessed what he has done, and has named someone else under interrogation, ought to be tortured lightly once again in order to ratify what he has said about him-

750

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quod quando in mutuis delationibus inter se dissentiunt, ut postea simul de hoc dissidio interrogantur; invicem redarguere permittantur, quae omnia ex consuetudine potius, quam iure scripto manarunt, nec ordinarie imperatae iudicibus sunt. Ideo (ut optimi Bononienses inquiunt) circa has agendum prudens iudex arbitrabitur, si namque ex una parte adsit qualitas, vel praerogativa dignitatis, auctoritatis vel imperii in aliam partem; vel una iudicio et sermone praevaleat, adeo ut dubium esse possit ne contra veritatem una trahat alteram in suam sententiam; numquam confrontatio talis permittenda, si nihil istorum adesset, permittendam videri: Chartar. d. lib. 3, cap. 1, n. 92. In facto igitur hoc consistit, et circumstantiis consideratis decidendum: Etiam in violenta, hoc est quam invitis iudex imperat, confrontatione: casus in quibus consulitur legite apud Clarum, q. 45, n. 14, et ibi Baiard. in addition., et in his ipsis casibus non admittenda, nisi praecedant considerationes exquisitissimae, et causae gravissimae, ut de haeresis crimine docet Penna: ad 3. part. Directorii Inquis. comm. 33, n. 101, ubi de hoc prudenter egit. Idem censeo de quodam genere confrontationis, quod aliquando iudices decernunt, quod vocatur confrontatio ad cortinam. | Et minus habet periculi: de quo Antonius Columba. In forma procedendi extraordinar. in controvers. crimin. ab arb. 220. In confrontatione spontanea, quando paratus est reus alios nondum captos societatis coarguere et convincere; puto aliud dicendum, ut scripsi: lib. 5, sect. 10, circa fin; nempe hanc numquam admittendam, nisi praecesserint indicia talia, ut propterea nominati citari possint; et iam citati, si non apte obiectiones rei nominantis, et constanter accusantis, solverint; queant in carcerem com-

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self and others and confirm his naming names in the presence of the person he has named, (Farinacci, supra). When they disagree among themselves about something while they make accusations and counter-accusations, and are later questioned together about this dissension, they should be allowed to contradict each other. All this has flowed from custom rather than written law, and judges are not, in the ordinary run of things, under orders to let it happen. Therefore, (as the scholars from Bologna put it very well), what will an experienced judge think needs to be done about these women? If one side has the status or prerogative of rank, and authority or control over the other, or if one side can get the upper hand because of the speech it makes in court, or because of its greater facility at speaking, to such an extent that one cannot be sure one side will not drag the other to its point of view, contrary to the truth, then such a confrontation should never be permitted. If none of these conditions obtains at all, then one may think it can be permitted, ([Flaminio] Cartari Book 3, chapter 1, number 92.) This, then, is the situation in fact, and what is to be done about it should be decided after consideration of the attendant circumstances, ‘even in the case of a violent confrontation’—that is, one which a judge orders, even if [the individuals concerned] are unwilling to take part in it. (Read the situations in which one asks for advice in [Giulio] Claro, question 45, number 14 and [Giambattista] Baiardi’s additions to the passage.) [Francisco] Peña, too, tells us what should not be allowed to happen in these very cases, unless very carefully considered reflections and very serious reasons, such as those involved in the crime of heresy, take place beforehand, (Inquisitors’ Handbook Part 3, comment 33, number 10, where he dealt with this in a skilful, learned fashion.) I am of the same opinion when it comes to a certain kind of confrontation which judges sometimes order. It is called ‘confrontation at the cauldron’ and is less risky. (See Antoine Colombain, Form of Proceeding Irregularly in Criminal Disputes, judgement 220.)357 In a ‘voluntary’ confrontation, when the accused is prepared to refute other members of the community who have not yet been arrested, and win the argument, I think one should take a different line, as I said in Book 5, towards the end of section 10, and of course such a confrontation should never be allowed unless there is preliminary evidence of such a kind that those who have been named can be cited in the meantime. If those who have already been cited do not provide suitable answers to the objections of the accused who names them and is resolute in accusing them, they can be thrown

357

Antoine Colombain (floruit sixteenth century) published his Forma Procedendi Extraordinarie in Controversiis Criminalibus in Antwerp in 1539.

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pingi; fieret enim alio quin iniuria talibus denunciatis, hoc seqq. dd. Friburgenses, et bene addunt, si socius in praesentia et confrontatione suam nominationem retractet, tamquam testem varium et inconstantem denuo torqueri posse: Farinac. a n. 116, usque 150. quaestio xl An dictum Binsfeldii trium vel quatuor foeminarum pro unius viri denunciatione exigi, debeat observari in torris imperii? Respondeo negative, tum quia privati Doctoris dictum est; tum quia contrarium ubique praxis videtur recepisse: lege tradita superius ad q. decimamtertiam. quaestio xli Quid sentiendum de praxi Germaniae, quae denunciationes de choreis, et sagarum conventibus, hactenus pro veris, et sufficientibus, et non illusoriis accepit? Non Germaniae solius praxis est, sed Galliae quoque, Hispaniae, Italiae ac Belgii, et est | optime fundata. Qui pro illusionibus habent, ipsi ab Alciato, Ponzinibioque cum paucis aliis delusi; et magna pars Wieriana farina, non purae fidei polline, sunt conspersi: lege quae de hac re scripsi, lib. 2, Disquisit. Mag. q. 16 et libro 5, sess. 16. Ubi in ultima editione Moguntina anni 1603; fusissime et nervosissime hoc confirmavi, et spero me Lectori veritatis amanti satisfecisse. Consideratis itaque cunctis, quae et in d. lib. 5 Disquisitionum, et in responsione hac quadragenaria scripsi, statuo Principem optime de republ. meriturum et iustitiae praeclare consulturum, si in suo territorio praecise faceret statutum, quo primum caveret, ad quot denunciationes tortura in hoc crimine posset adhiberi, et licet duae de iure sufficiant, tamen tres ad minimum requirendas, sine ulla distinctione virorum et foeminarum. 2. Quod non attendatur ad contritionem, nisi forte aliqua sit notorie incontrita, eo quod nolit confiteri,

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into prison, (because otherwise a wrong would be done to those who had had charges laid against them.) The scholars from Freiburg also quite properly add that if an associate retracts a name he has given in the person’s presence during their confrontation, he can be tortured again as an inconsistent and capricious witness, (Farinacci, from number 116 to number 150.) Question 40 Should Binsfeld’s dictum, that a charge needs to be brought by three or four women for every man who brings one, be complied with in the territories of the Empire? My answer is ‘no’, because it is the dictum of an individual scholar and because the contrary practice seems to have been adopted everywhere. Read what I said earlier in relation to [question] thirteen. Question 41 What should one think about the practice in Germany which, up till now, has accepted that charges involving dances and witches’ [sagarum] meetings are true, are capable of being proved beyond reasonable doubt, and are not illusory? It is not the practice in Germany alone. It is also that of France, Spain, Italy, and the Spanish Netherlands, and has a very solid foundation. Those who consider [these things] to be illusions are themselves deluded, by [Andrea] Alciato, [Gianfrancesco] Ponzinibio, and a few others. Most of them have been sprinkled with [Johann] Weyer’s dust-ridden flour rather than with the unadulterated flour of the Faith. Read what I have written on this subject in Investigations into Magic Book 2, question 16 and Book 5, section 16. I covered this at great length and with great energy in the final Mainz edition of 1603, and I hope I have satisfied the reader who loves the truth. Everything I have written in Book 5 of Investigations and in my reply to these forty questions considered, I establish that the prince will deserve very well of his state, and will have an outstanding regard for justice, if he were to issue a statute, tailored to his own territory, whereby he would decree (i) how many denunciations it would take for torture to be used in this crime, without any distinction between men and women. (A minimum of three should be required, even though the law says two are enough); (ii) that one give no heed to contrition unless by chance it happens that someone is notoriously lacking

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aut Eucharistiam sumere. 3. Quod non requirantur aliae circumstantiae, nisi quod sagae carceratae, seorsim tamen positae et examinatae, atque interrogatae in genere, viderint N et N praesentes in tali congregatione nocturna sagarum; nullis admissis defensionibus, nisi quae fundamentum habeant in iure naturali fundatum; ratio, quia in criminibus exceptis, iudici quo ad processum remissae sint solemnitates iuris civilis. 4. Cum de persona semel denunciata, possent alii socii interrogari in specie; eiusmodi autem interrogationes speciales admodum sunt periculosae; quod duae denunciationes debeant praecedere, ut in specie de persona denunciata, possit interrogari. Quae eo magis placeret expresse statui, ut iudicis arbitrio, quam paucissima committentur. Haec salvo meliore iudicio mihi de his xl quaestionibus vedebantur Graecii Styrae, iv Octob. 1602, nunc eadem auxi et recensui Salmanticae, xxiv Iulii, 1604. Martinus Del Rio Societatis iesu ll. licentiatus et S. Theol. Doctor.

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in contrition, since she is unwilling to go to confession or receive the Eucharist; (iii) that other circumstances are not required other than that the witches [sagae] have been put in prison, kept apart, examined separately, and interrogated in general terms whether they saw N and N present at such and such a nocturnal meeting of witches [sagarum]; that no defence be given a hearing, except those which have a sound basis in natural law, the reason being that, in crimes which fall outwith the normal legal rules, as far as procedure is concerned, the way the civil law is applied has been handed over to the judge; (iv) that when a charge has once been made against someone, other associates could be interrogated. (Specific interrogations of this kind, however, are very risky, because two denunciations ought to come first, so that people can be interrogated in particular terms about the person charged.) I have clearly established that these would be very desirable, so that as little as possible need be left to the judge’s decision. This is what I thought about these forty questions, (saving better second thoughts), at Graz on 4th October 1602. Now I have expanded and re-thought it at Salamanca, 24th July 1604. Martín del Río of the Society of Jesus, Licentiate of Laws and Doctor of Sacred Theology.

Bibliography References to sources without specific quotation are given as names and dates only. Del Río may have noted these either during his extensive reading or taken them from collections of extracts or encyclopaedias.

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Index to Book 5 abjure/abjuration 32, 153, 155, 259, 261, 263, 265, 281, 293, 477, 479 accomplice 31, 32, 75, 89, 101, 103, 105, 107, 109, 111, 123, 125, 127, 139, 153, 177, 179, 181, 183, 185, 187, 191, 193, 199, 223, 241, 249, 251, 255, 335, 345, 349, 441, 443, 445, 449, 473, 493, 515, 517, 519, 523, 527, 531, 539, 551, 553, 559, 561, 575, 577, 581, 585, 587, 589, 591, 595, 539, 567, 659, 677, 697 accusation 30, 75, 77, 79, 81, 93, 99, 107, 127, 191, 197, 199, 211, 213, 253, 255, 473, 557, 563, 599, 623, 637, 695, 751 acquittal 33, 269, 271, 273, 313 angel 331, 415, 421, 423, 431n216 apostasy 34, 35, 69, 157, 339, 351, 357, 369, 375, 379, 381, 383, 407, 437, 449, 617, 629 apparition 16, 405, 413, 415 Aquinas, St Thomas 71, 209, 211, 243, 297, 301, 303, 305, 329, 335, 385, 427, 435, 529, 593, 723, 747 arrest 7–8, 31, 32, 81, 89, 93, 95, 115, 123, 139, 141, 151, 153, 155, 177, 193, 195, 197, 199, 201, 205, 209, 211, 253, 261, 263, 271, 307n152, 309, 313, 321, 373, 377, 387, 445, 473, 499, 501, 503, 505, 507, 521, 533, 541, 585, 751 astrology 5, 16, 19, 20, 28, 491 Augustine of Hippo 243, 327, 329, 331, 379, 387, 395, 397, 399, 441 pseudo-Augustine 401, 409, 411, 417, 421, 437 Binsfeld, Peter 16, 39, 99, 101, 111, 123, 155, 175, 177, 193, 225, 307n152, 351, 453, 531, 543, 553, 563, 581, 621, 649, 689, 707, 753 Bodin, Jean 16, 38, 173n64, 175, 185, 241, 243, 389, 391, 497, 657 books (of magic) 34, 113, 341, 439, 465sq. burial 34, 329, 469, 471 Canon Episcopi 34, 155, 157, 305, 325, 389, 395, 397, 399, 403, 405, 437, 439, 441, 443, 445, 447, 455, 457, 459, 463 characters (magical) 229, 277, 287, 289, 291

Church Catholic 1, 18, 19, 25, 36, 41, 159, 161, 203, 233, 237, 263, 281, 295, 355, 367, 387, 401, 403, 405, 451, 453, 455, 539, 711, 719 building 4, 6n10, 11, 15, 32, 41, 113, 177, 201, 365, 397, 495, 511, 513, 635n308 Claro, Giulio 67n6, 79, 81, 97, 99, 103, 107, 127, 131, 133, 149, 165, 193, 199, 221, 237, 243, 249, 267, 295, 311, 335, 541, 547, 555, 589, 591, 595, 597, 649, 651, 707, 713 confession judicial 16, 32, 33, 97, 1–3, 1–7, 111, 123, 153, 155, 185, 217, 221, 223, 227, 235, 245, 247, 249, 251, 255, 257, 221, 223, 227, 235, 245, 247, 249, 251, 255, 257, 295, 297, 305, 307, 309, 311, 313, 315, 317, 319, 321, 335, 361, 377, 385, 429, 439, 463, 469, 475, 483, 501, 503, 519, 565, 579, 673, 685, 725, 735, 739 sacramental 34–35, 161, 187, 297n142, 337, 467, 575, 577, 581, 755 confessor 19, 30, 34–36 passim, 65, 101, 143, 189, 287, 309, 313, 577, 589, 695 conjuring-tricks 20, 57, 61, 323, 329, 409, 413, 477, 489, 601, 603, 627 Crespet, Pierre 16, 38, 151, 153n49, 211, 283, 347, 407, 443 cure 2, 20, 26, 35, 45, 379, 479, 533 D’Arc, St Jeanne 485, 487, 493, 497 Del Río, Martín (whereabouts) Antwerp 2–7 passim Bordeaux 8, 9 Brussels 7, 15, 151 Burgos 6–8 passim Douai 4, 9, 10 Graz 13, 14 León 8 Leuven 4, 5, 9, 10, 11, 15 Madrid 6, 7, 41 Mainz 9 Paris 4, 5, 8 Salamanca 5, 6, 8, 14, 40 Tournai 10, 11, 41 Valladolid 8, 14, 15, 44

770 denunciation 30, 75, 77, 101, 103, 105, 125, 191, 515, 517, 519, 531, 537, 549, 559, 561, 581, 583, 591, 644, 637, 685, 687, 689, 691, 753, 755 Devil 12, 13, 19, 22, 24–27 passim, 32, 34, 35, 38, 47, 49, 69, 75, 153, 155, 177, 179, 207, 209, 225, 227, 229, 231, 233, 291–305, 315, 323, 325, 327, 329, 335, 337, 347, 349, 351, 357, 361, 363, 365, 377, 387, 403, 405, 407, 413, 417, 419, 431, 433, 439, 443, 445, 449, 455, 479, 481, 497, 505, 509, 579, 603, 605, 609, 711 see also Satan divination 26–29 passim, 33, 34, 67, 87, 91, 203, 269, 279, 285, 289, 291, 293, 353n170, 379, 403, 405, 473, 475, 495, 621 dreams 10, 11, 16, 28, 321, 331, 333, 413, 415, 417, 419, 463 Erasmus 3, 121, 405, 483 Eucharist 36, 453, 457, 467sq., 685, 755 evidence (judicial) 31–33 passim, 40, 77, 79, 81, 83, 85, 93, 95, 97, 99, 105, 107, 109, 123, 125, 127, 129, 131, 133, 135, 137, 139, 141, 143, 145, 147, 149, 151, 155, 161, 163, 165, 167, 169, 171, 173, 175, 177, 179, 181, 183, 185, 191, 193, 195, 197, 199, 211, 215, 217, 219, 221, 233, 247, 253, 257, 259, 269, 297, 307, 309, 311, 327, 331, 345, 349, 377, 397, 417, 425, 461, 471, 503, 505, 515, 517, 519, 521, 523, 525, 527, 529, 535, 537, 539, 541, 543, 545, 547, 549, 553, 555, 557, 559, 565, 571, 573, 577, 581, 583, 585, 587, 589, 591, 593, 595, 597, 599, 601, 607, 609, 611, 615, 627, 629, 637, 639, 641, 643, 645, 647, 649, 651, 655, 657, 659, 661, 663, 669, 671, 673, 675, 679, 681, 683, 685, 687, 689, 691, 693, 695, 697, 699, 701, 703, 705, 709, 713, 715, 717, 719, 721, 725, 727, 729, 731, 735, 737, 739, 741, 745, 747, 751 evil eye 16, 23, 24, 32, 38, 153, 205, 207, 319, 351, 363, 365, 367, 369, 447, 449, 505, 6907, 639 examination (judicial) 16, 41, 127, 163, 213, 513, 595, 597, 599, 623, 625, 651, 659, 671, 731

index to book 5 Farinacci, Prospero 30, 39, 67, 69, 71, 73, 75, 81, 83, 87, 89, 93, 95, 97, 99, 103, 105, 107, 109, 111, 127, 131, 133, 137, 141, 145, 147, 165, 167, 171, 193, 197, 199, 204, 215, 217, 221, 271, 293, 559, 567, 591, 595, 597, 629, 663, 669, 685, 687, 689, 705, 721, 725, 729, 739 fascinatio see evil eye Fathers of the Church 37, 233, 301, 303, 331, 333, 355, 395, 403, 421, 429, 611 God 1, 15, 23, 25–29 passim, 35, 42n44, 48, 55, 59, 69, 85, 91, 151, 153, 157, 177, 193, 209, 225, 233, 235, 237, 239, 265, 273, 275, 281, 283, 291, 311, 313, 321, 327, 329, 331, 349, 351, 355, 357, 359, 361, 365, 367, 371, 375, 381, 387, 389, 405, 407, 409, 411, 415, 423, 425, 427, 431, 433, 435, 441, 445, 449, 451, 457, 485, 509, 511, 531, 533, 579, 605, 619, 639, 681, 697, 711, 715 Gödelmann, Johann 16, 36, 39, 48, 99, 175, 199, 255, 295, 311, 317 Grillando, Paolo 19n36, 121, 175, 209, 211, 241, 281, 287, 289, 291, 311, 345, 719 heresy 8, 17, 32, 33, 35, 41, 48, 69, 71, 75, 77, 81, 89, 91, 93, 97, 153, 157, 159, 161, 175, 181, 187, 189, 193, 195, 201, 259, 261, 265, 273, 275, 277, 279, 281, 283, 285, 287, 289, 293, 295, 313, 339, 351, 367, 371, 403, 405, 409, 429, 431, 441, 447, 453, 465, 467, 469, 471, 473, 505, 507, 561, 563, 567, 577, 595, 629, 643, 647, 677, 681, 685, 697, 743, 751 heretics 20, 25, 26, 31, 33, 34, 36, 39, 91, 93, 151, 157, 159, 177, 187, 189, 195, 201, 235, 257, 261, 263, 275, 281, 283, 285, 293, 299, 303, 311, 325, 327, 365, 367, 371, 381, 383, 387, 389, 403, 405, 413, 429, 441, 443, 451, 453, 455, 459, 463, 511, 513, 563, 577, 631, 637, 643, 697, 749 Herodias 305, 395, 405, 407, 409, 411, 415, 417, 435, 437, 455, 457, 461, 463 homage 263, 371, 479

index to book 5 idolatry 35, 355, 371, 409, 437, 441, 445, 449, 617, 619 images magical 24, 26, 281, 483, 485n239 mental 20, 25, 335, 343, 409, 411, 413, 607 physical and non-magical 4, 237, 289 Imagination 11, 20, 21, 23, 33, 277, 305, 315, 333, 335, 413, 421, 423, 427, 429, 431, 445, 509, 603, 605, 607 Incantation 20, 26, 34, 123, 285, 291, 303, 373, 375, 379, 381, 383, 395, 449, 477, 481, 495, 675 Jacquier, Nicolas 16, 38n39, 153, 155, 265, 343, 391, 441, 447, 459 Jesuit 1, 4, 8–16 passim, 18, 36–39 passim, 44–49 passim, 155, 201n79, 341n165, 343 judge ecclesiastical 67, 83, 85, 153, 155, 181, 203, 261, 273, 353, 379, 453 secular/civil 11, 17, 25, 29–36 passim, 41, 65, but thereafter on almost every page lamia see witch Lipsius, Justus 5, 10, 12, 39, 42, 43, 45, 46, 477 Loos, Cornelius 16, 39, 151, 307, 313, 447, 507, 511 magia see magic magus/maga see magician magic 5, 8, 11, 15, 16, 19, 38, 41, 44, 81, 83, 161, 179, 195, 277n136, 283, 405, 483, 561, 583, 629, 643 demonic 9, 11, 12, 21, 719 divinatory 203, 281, 283, 289, 291, 293, 295, 303, 333, 381, 403, 405, 474, 477 harmful 12, 17, 23, 26, 29–31 passim, 34– 37 passim, 43, 44, 49, 67n7, 71n12, 99, 103, 113, 123, 129, 133, 149, 151, 155, 165, 173, 175, 187, 191, 193, 197, 199, 201, 203, 205, 207, 211, 225, 227, 229, 231, 233, 237, 239, 253, 257, 259, 261, 263, 285, 291, 323, 329, 351, 353, 365, 379, 387, 393, 395, 423, 449, 467, 487, 493, 509, 599, 607, 617, 619, 621, 675, 681, 691, 707 instrumental 10, 20, 229, 251, 261, 277, 287, 349, 357

771 natural 38, 479n232 poisonous 6, 24, 61, 71n12, 87, 89, 105, 201, 285, 341, 375, 507, 515, 617, 619, 621, 623 magician 5, 22, 31, 33, 42n44, 47, 159, 173, 211, 277, 279, 281, 283, 287, 291, 321, 357, 373, 379, 383, 389, 407, 445, 465, 477, 479, 485, 487, 493, 503, 507, 509, 511, 583, 605, 621 maleficium/malefice see harmful magic mark 12, 28, 31, 177, 179, 289, 363, 477 Medea 10, 37, 61, 341, 373, 407 Michaeëlis, Sébastien 16, 38, 155, 179, 327, 361, 481 miracles 29, 329, 331, 389 Netherlands (Spanish) 2–12 passim, 15, 18, 44, 46, 113, 289, 307, 369, 469, 753 ointment 113, 205, 209, 213, 231, 251n121, 349, 363, 479, 603, 605, 607 pact 13, 20, 21, 24, 27, 29, 33, 36, 75, 91, 227, 229, 273, 275, 277, 279, 281, 283, 295, 297, 311, 327, 347, 353, 357, 371, 373, 375, 377, 379, 387, 441, 509 Ponzinibio, Gianfrancesco 39, 255, 315, 421, 437, 443, 615, 617, 753 praestigium see conjuring-tricks prayer 19, 26, 36, 37, 213, 233, 235, 265, 291, 359, 375, 475 prison/imprisonment 7, 32, 35, 73, 87, 111, 119, 127, 129, 139, 141, 143, 151, 155, 183, 191, 193, 195, 199, 201, 203, 205, 207, 209, 229, 231, 239, 247, 251, 263, 287, 289, 307n152, 359, 381, 383, 421, 469, 501, 513, 541, 579, 581, 593, 651, 745, 753, 755 prisoner 713, 715, 717, 719, 721, 723, 727, 731 recant/recantation 31, 32, 39, 185, 187, 261, 397n152, 507, 513 relics 26, 237, 281, 289n143, 711 reputation (of accused/witness) 31, 33, 35, 45, 77, 81, 109, 111, 125, 129, 131, 133, 135, 137, 139, 143, 159, 161, 163, 167, 169, 171, 175, 177, 181, 183, 191, 223, 257, 267, 287, 335, 349, 365, 545, 583, 587, 589, 591, 593, 595, 597, 599, 739 Rosweyde, Heribert 3, 5, 11–14 passim, 43

772 Sabbat 12, 16, 21, 33, 153n50, 339, 353, 363n180, 477, 479, 495 sacrilege 26, 69, 311, 339, 365, 441, 449, 575 saga see wise-woman Satan 10, 15, 19, 22, 45, 117n35, 207, 337, 349, 357, 363, 405, 407, 413, 421, 443, 451, 457, 461, 479, 481 see also Devil Scaliger, Joseph 14, 36, 48, 489 Seneca 7, 10, 37, 46, 373, 407, 473, 481n233, 611 sortilegium see divinatory magic spirits evil 409, 411, 413, 415, 417, 431, 435, 437, 439, 441, 451, 457, 463, 473, 475, 481, 495, 497, 503, 505, 509, 511, 533, 605, 607, 609, 611, 711 physical 413, 415, 417, 419, 421, 423, 425, 723 Sprenger, Jakob 30, 175, 213, 221, 229, 231, 235, 239, 245, 247, 249, 251, 259, 261, 263, 267, 269, 271, 273, 345 superstition 19, 23, 24, 28, 32, 36, 37, 41, 45, 48, 177, 212, 233, 277, 291, 393, 509, 719 torture (judicial) 6, 31, 32, 33, 35, 83, 99. (Hereafter, ‘torture’ is one of the major topics of discussion on most pages.) touch 12, 20, 97, 205, 231, 259, 325, 343, 365, 487 trial 5, 6, 12, 14, 16–18 passim, 30, 32, 47, 71n12, 83, 85, 87, 133, 137, 141, 153, 169, 201, 207, 273, 293, 307, 337, 357, 365, 385, 407, 429, 469, 471, 473, 503, 537, 539, 541, 545, 561, 579, 595, 599, 631, 635, 663, 667, 669, 739, 741, 747, 749 Trithemius 297, 399, 605, 607, 609

index to book 5 Vaulx, Jean del 11, 12, 71, 209, 337, 385, 481, 483 veneficium see poisonous magic visions 213, 261, 317, 419, 421, 423, 425, 427, 433 voice 20, 115, 265, 355, 487 Weyer, Johann 19, 30, 33, 151, 157, 285, 307, 313, 315, 383, 437, 443, 445, 447, 453, 513, 619, 753 wise-woman 9, 121, 123, 245, 387, 483, 607 witch 11, 12, 14, 16, 22, 23, 29, 31, 33, 34, 35, 38, 46, 47, 77, 89, 119, 123, 129, 133, 145, 159, 161, 177, 179, 181, 187n68, 210, 229, 233, 237, 253, 255, 257, 259, 273, 281n140, 285, 295, 305, 309, 311, 313, 315, 317, 321, 323, 325, 327, 329, 331, 335, 337, 341, 343, 345, 349, 351, 355, 359, 361, 383, 385, 399, 407, 417, 425, 427, 429, 439, 441, 443, 449, 451, 453, 455, 457, 459, 461, 463, 473, 475, 477, 479, 481, 483, 487, 489, 495, 497, 499, 505, 507, 529, 531, 533, 539, 561, 575, 577, 597, 603, 605, 607, 609, 611, 613, 615, 617, 619, 621, 623, 629, 639, 647, 675, 697, 705, 711, 719, 725, 745, 749, 753, 755 witchcraft 10, 15–17 passim, 33, 47, 48, 147, 175, 177, 481, 489, 497, 613 witness 31, 35, 79, 81, 95, 97, 99, 109, 115, 123, 125, 127, 129, 131, 133, 135, 137, 141, 147, 163, 167, 171, 179 sq., 189, 191, 199, 223, 231, 239, 319, 335, 349, 361, 473, 483, 511, 513, 519, 523, 527, 545, 547, 549, 551, 557, 559, 563, 565, 567, 569, 571, 573, 599, 617, 629, 637, 641 sq., 647, 651, 653 sq., 661, 663, 671, 675, 677, 679, 681, 683, 695, 703, 739, 753