Malleus Maleficarum Part 3

Question II

Of the Number of Witnesses

        Since we have said that in the second method the evidence of the witnesses is to be written down, it is necessary to know how many witnesses there should be, and of what condition. The question is whether a Judge may lawfully convict any person of the heresy of witchcraft on the evidence of two legitimate witnesses whose evidence is entirely concordant, or whether more than two are necessary. And we say that the evidence of witnesses is not entirely concordant when it is only partially so; that is, when two witnesses differ in their accounts, but agree in the substance or effect: as when one says "She bewitched my cow," and the other says, "She bewitched my child," but they agree as to the fact of witchcraft.
        But here we are concerned with the case of two witnesses being in entire, not partial, agreement. And the answer is that, although two witnesses seem to be enough to satisfy the rigour of law (for the rule is that that which is sworn to by two or three is taken for the truth); yet in a charge of this kind two witnesses do not seem sufficient to ensure an equitable judgement, on account of the heinousness of the crime in question. For the proof of an accusation ought to be clearer than daylight; and especially ought this to be so in the case of the grave charge of heresy.
        But it may be said that very little proof is required in a charge of this nature, since it takes very little argument to expose a person's guilt; for it is said in the Canon de Haereticis, lib. II, that a man makes himself a heretic if in the least of his opinions he wanders from the teaching and the path of the Catholic religion. We answer that this is true enough with reference to the presumption that a person is a heretic, but not as regards a condemnation. For in a charge of this sort the usual order of judicial procedure is cut short, since the defendant does not see the witnesses take the oath, nor are they made known to him, because this might expose them to grave danger; therefore, according to the statute, the prisoner is not permitted to know who are his accusers. But the Judge himself must by virtue of his office, inquire into any personal enmity felt by the witnesses towards the prisoner; and such witnesses cannot be allowed, as will be shown later. And when the witnesses give confused evidence on account of something lying on their conscience, the Judge is empowered to put them through a second interrogatory. For the less opportunity the prisoner has to defend himself, the more carefully and diligently should the Judge conduct his inquiry.
        Therefore, although there are two legitimate and concordant witnesses against a person, even so I do not allow that this would be sufficient warrant for a Judge to condemn a person on so great a charge; but if the prisoner is the subject of an evil report, a period should be set for his purgation; and if he is under strong suspicion on account of the evidence of two witnesses, the Judge should make him abjure the heresy, or question him, or defer his sentence. For it does not seem just to condemn a man of good name on so great a charge on the evidence of only two witnesses, though the case is otherwise with a person of bad reputation. This matter is fully dealt with in the Canon Law of heretics, where it is set down that the Bishop shall cause three or more men of good standing to give evidence on oath to speak the truth as to whether they have any knowledge of the existence of heretics in such a parish.
        Again it may be asked whether the Judge can justly condemn a person of such heresy only on the evidence of witnesses who in some respects differ in their evidence, or merely on the strength of a general accusation. We answer that he cannot do so on either of the above grounds. Especially since the proofs of a charge ought, as we have said, to be clearer than daylight; and in this particular charge no one is to be condemned on merely presumptive evidence. Therefore in the case of a prisoner who is the subject of a general accusation, a period of purgation shall be set for him; and in the case of one who is under strong suspicion arising from the evidence of witnesses, he shall be made to abjure his heresy. But when, in spite of certain discrepancies, the witnesses agree in the main facts, then the matter shall rest with the Judge's discretion; and indirectly the question arises how often the witnesses can be examined.