What Course the Advocate should Adopt when the Names of the Witnesses are not Revealed to him. Ths Sixth Action

        BUT it may be asked: What, then, should the Advocate acting a Procurator for the accused do, when the names of the witnesses are withheld from both himself and his client, although the accused earnestly desires that they should be made known? We answer that he should obtain information from the Judge on every point of the accusation, which must be given to him at his request, only the names of the witnesses being suppressed; and with this information he should approach the accused and, if the matter involves a very grave charge, exhort him to exercise all the patience which he can.
        And if the accused again and again insists that she should know the names of the witnesses against her, he can answer her as follows: You can guess from the charges which are made against you who are the witnesses. For the child or beast of so and so has been bewitched; or to such a woman or man, because they refused to lend you something for which you asked, you said, "You shall know that it would have been better to have agreed to my request," and they bear witness that in consequence of your words the person was suddenly taken ill; and facts are stronger evidence than words. And you know that you have a bad reputation, and have for a long time been suspected of casting spells upon and injuring many men. And talking in this manner, he may finally induce her to enter a plea that they had borne witness against her from motives of hatred; or to say, "I confess that I did say so, but not with any intent to do harm."
        Therefore the Advocate must first lay before the Judge and his assessors this plea of personal enmity, and the Judge must inquire into it. And if it should be found to be a case of mortal enmity, as that there has been some attempted or accomplished murder committed by the husbands or kindred of the parties, or that someone of one party has been charged with a crime by someone of the other party, so that he fell into the hands of public justice, or that serious wounds have resulted from quarrels and brawls between them; then the upright and careful Judge will consult with his assessors whether the accused of the deponent was the aggravating party. For if, for example, the husband or friends of the accused have unjustly oppressed the friends of the deponent, then if there is no evidence of the fact that children or animals or men have been bewitched, and if there are no other witnesses, and the accused is not even commonly suspected of witchcraft, in that case it is presumed that the depositions were laid against her from motives of vengeance, and she is to be discharged as innocent and freely dismissed, after having been duly cautioned against seeking to avenge herself, in the manner which is usually used by Judges.
        The following case may be put. Katharina’s child, or she herself, is bewitched, or she has suffered much loss of her cattle; and she suspects the accused because her husband or brothers had previously brought on an unjust accusation against her own husband or brother. Here the cause of enmity is twofold on the part of the deponent, having its root both in her own bewitchment and in the unjust accusation brought against her husband or brother. Then ought her deposition to be rejected or not? From one point of view it seems that it should, because she is actuated by enmity; from another point of view it should not, because there is the evidence of the fact in her bewitchment.
        We answer that if in this case there are no other deponents, and the accused is not even under common suspicion, then her depositions cannot be allowed, but must be rejected; but if the accused is rendered suspect, and if the disease is not due to natural causes but to witchcraft (and we shall show later how this can be distinguished), she is to be subjected to a canonical purgation.
        If it be asked further whether the other deponents must bear witness to the evidence of the fact as experienced by themselves or others, or only to the public reputation of the accused; we answer that, if they give evidence of the fact, so much the better. But if they only give evidence as to her general character, and the matter stands so, then, although the Judge must reject that deponent on the grounds of personal enmity, yet he shall take the evidence of the fact, and of her bad reputation given by the other witnesses, as proof that the accused must be strongly suspect, and on these grounds he can sentence her to a threefold punishment: namely, to a canonical purgation because of her reputation; or to an abjuration, because of the suspicion under which she rests, and there are various forms of abjuration for various degrees of suspicion, as will be shown in the fourth method of passing sentence; or, because of the evidence of the fact, and if she confesses her crime and is penitent, she shall not be handed over to the secular branch for capital punishment, but be sentenced by the ecclesiastical Judge to imprisonment for life. But notwithstanding the fact that she has been sentenced to imprisonment for life by the ecclesiastical Judge, the secular Judge can, on account of the temporal injuries which she has committed, deliver her to be burned. But all these matters will be made clear later when we deal with the sixth method of passing sentence.
        To sum up: Let the Judge first take care not to lend too easy belief to the Advocate when he pleads mortal enmity on behalf of the accused; for in these cases it is very seldom that anyone bears witness without enmity, because witches are always hated by everybody. Secondly, let him take note that there are four ways by which a witch can be convicted, namely, by witnesses, by direct evidence of the fact, and by her own confession. And if she is detained on account of a general report, she can be convicted by the evidence of witnesses; if on account of definite suspicion, the direct or indirect evidence of the facts can convict her, and by reason of these the suspicion may be judged to be either light or strong or grave. All this is when she does not confess; but when she does, the case can proceeds as has been said.
        Thirdly, let the Judge make use of all the foregoing circumstances to meet the plea of the Advocate, whether the accused is charged only by reason of a general report, or whether there are also certain evidences to support the charge by which she incurs slight or strong suspicion; and then he will be able to answer the Advocate’s allegation of personal enmity, which is the first line of defence which he may assume.
        But when the Advocate assumes the second line of defence, admitting that the accused has used such words against the deponent as, "You shall soon know what is going to happen to you," or "You will wish soon enough that you had lent or sold me what I asked for," or some such words; and submits that, although the deponent afterwards experienced some injury either to this person or his property, yet it does not follow from this that the accused was the cause of it as a witch, for illnesses may be due to various different causes. Also he submits that it is a common habit of women to quarrel together with such words, etc.
        The Judge ought to answer such allegations in the following manner. If the illness is due to natural causes, then the excuse is good. But the evidence indicates the contrary; for it cannot be cured by any natural remedy; or in the opinion of the physicians the illness is due to witchcraft, or is what is in common speech called a Night-scathe. Again, perhaps other enchantresses are of the opinion that it is due to witchcraft. Or because it came suddenly, without any previous sickening, whereas natural diseases generally develop gradually. Or perhaps because the plaintiff had found certain instruments of witchcraft under his bed or in his clothes or elsewhere, and when these were removed he was suddenly restored to health, as often happens, as we showed in the Second Part of this work where we treated of remedies. And by some such answer as this the Judge can easily meet this allegation, and show that the illness was due rather to witchcraft than to any natural causes, and that the accused must be suspected of causing such witchcraft, by reason of her threatening words. In the same way, if someone said, "I wish your barn would be burned down," and this should afterwards happen, it would engender a grave suspicion that the person who had used that threat had caused the barn to be set on fire, even if another person, and not he himself, had actually set light to it.

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Question XII

Part III, Second Head, Question XI
was transcribed by Christie Rice.

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