The jurist whom I mentioned, and whose name I spare, rejects Scribonius’s first statement about the devil sustaining witches; for he thinks that here there is no deed, no ministry, and no operation at all of the demon, but only of almighty God, who accomplishes it through his good ministering angels. How much less secure a road he has entered in this matter will soon be shown. But this was prudently added by him in these words:
Although often a market-gardener may have spoken aptly, yet it will matter much whether Davus or a hero speaks. Therefore, lest I seem to have written these things more from knowledge or depth of understanding than from the weight of experience and Christian charity, I profess that the whole depends on the authority of holy Mother Church, and that I wish to defend determinately, much less obstinately, nothing which is opposed to her in any respect.
[margin: The Catholic jurist refers ahead to his number 238, where he attributes the cold-water proof to good ministering angels, and back to number 239 in connection with his submission to Church authority]
I gladly embrace this salutary clause, and I congratulate him on this mind. I hope that when he sees the Church’s judgment clearly expressed in the ancient canons, and when he has weighed and sifted more carefully both the weakness of his own reasons and the force and weight of the common opinion, he will join himself to it. Certainly it belongs to a prudent man to follow the common path of Catholic theologians and jurists rather than to embrace the little reasonings of recent men and innovators, which at first sight present some show of sharpness. And among men of sincere judgment there is greater authority in a practice handed down by the supreme pontiffs and recorded in the writings of the most learned men of all Europe, than in the opinion of a few petty skirmishers who follow the view of the common people, a dangerous experiment and usurpation.
In this treatment I profess no especially refined learning or depth of understanding, but, according to the slowness of my own talent and my inexperience in writing, I promise zeal for truth, diligence, and some light. I hope my opponent, who wants others to bear kindly with him though he dissents from almost everyone, will not take it ill if I do not agree with him alone, so that I may agree and think with so many most renowned and learned men.
First, as for his supposing that most judges today use this proof: I know that this is not true, unless perhaps he is speaking only of Germany. For in Italy and Spain, where the authority of the canons is unimpaired, no one at all now uses it. In France and Belgium either no one at all uses it, or so few that no account should be taken of them; and they are only the more unlearned and rural judges. In Germany itself, all the more learned have begun to disapprove this practice; and those very men who have not yet abandoned it do it with scruple, anxiety, and fear of error, as is clear from the letter of the Westphalians sent to Godelmann and inserted in his works. Many also, as those German jurists whom I cited in question 4, last section, testify, say that in many places it is already gradually falling into disuse. In this sense, therefore, the title of that work is true: “Most judges use this proof today.” With this premise made:
The opinion of that writer, so that I may place it all before the eyes no less faithfully than briefly, is in sum this:
When sufficient indications for arrest are present, then the person ought to be arrested; this is certain. But when stronger presumptions against the imprisoned person, even appearances of the deed, should accrue, such as could commonly be sufficient for torture, then they are not immediately to be subjected to questioning, but for the firmer strength of the preceding indications this proof by water is first to be applied; not so that the accused may be convicted by this proof, but so that the way to torture may be prepared and secured, and a record may be made with so much greater confidence.
[margin: The summary of the jurist’s procedural rule is marked by Del Rio from the jurist’s number 24]
Consider, reader, two things according to this opinion. First, the author concedes that this proof is not to be applied in order to inflict a penalty or punishment, but only for torture. Next, as to torture, judges are not to use it as a supplement when there are not sufficient indications according to ordinary law, but only for the strengthening of preceding indications otherwise valid enough for torture; and this only so that the judge may thus proceed to torture with more confidence. From this it is first clear how slight and how unnecessary this proof is for judicial inquiry. For it would be useful only for torture, and that only when indications sufficient for torture are already present. If they are sufficient, then it is not a matter of necessity, but only of more abundant caution and, as it were, curiosity.
Again, if it is a sign certainly sent by God, why should it not be applied to condemnation also, in the same way as to torture? For example, so that the judge may condemn with more confidence. Indeed, the need for this proof would seem greater when a witch, sufficiently convicted by testimonies, has evaded torture by enduring it, than in the case in which the adversary requires the proof. Thus, if this proof had not been forbidden at all times, it would seem that it should rather be used then.
I also do not understand what he adds: that many women, arrested on lighter indications, after a general inquiry had been made and no supporting indications had followed either before or after the proof by water, were dismissed and restored by those same judges, after canonical purgation had been imposed and a solemn oath had first been taken. So they say at number 28. It was good that they dismissed them; it was not good that they then conducted the proof. For if there were only so many indications as were sufficient for arrest, according to their very own opinion they had no right to compel them to this proof. For they assert that this proof has place only when, in addition to those earlier indications for arrest, other stronger presumptions have accrued and arisen, such as would commonly suffice for torture, as they themselves said at number 24.
Next, if this is a lawful kind of proof, there should by no means have been recourse to canonical purgation. Tell me, then: either they were submerged or they were not. If they were submerged, why do you not release them as innocent? Why do you drive them to further things? Is she not sufficiently purged who has been purged with God as judge? Certainly the condition of vulgar purgations of this kind was always that the judge should show himself favorable to the one whom the outcome had favored, and should absolve the one whom either water or fire had absolved. If they floated, why did you still need testimonies? Surely only because you knew that your proof was uncertain in every direction. Therefore this is not a miracle of God if it is uncertain and doubtful. You betray your cause by your own prejudgment.
But they add experiments of certain innocent persons, who, when they wished to submit to the proof of their own accord, sank, and thus confessed that their relations and kinsfolk, whom they saw to be unable to be submerged, were truly guilty of the fault. Indeed, they even offered themselves as accusers and avengers. They narrate a single example in these words:
[margin: The jurist’s examples are marked from his numbers 19 and 30; Del Rio’s response to the old-woman example is marked from number 31]
Conversely it happened that a certain old woman, leaning on a reed staff, who many years before had been accused and arrested for witchcraft together with her husband and sister, those two having been executed, while she, because at that time lighter presumptions operated against her than against the others, and because she was likewise pregnant and near childbirth, had been relegated into exile, where, against the magistrate’s prohibition repeated again and again under penalty, she had returned to her province and dwelling, was arrested and adjudged to the water for submersion in this year 1594 and handed over to the executioner. With such power she repeatedly lifted herself visibly out of the waters, sometimes even up to the shoulders, and, as it were, bubbled up and leapt out, that although the executioner repeatedly submerged and thrust her down with a pole, she could scarcely be contained under the waters. And there was then much talk among many that, unless she had been pressed down with such force by the executioner’s pole and detained in the waters, she would have swum out and escaped with greater ease and swiftness than was possible for a human being.
The writer, relying on this indication, does not at all doubt that she was a witch and should have been burned rather than submerged. Here again I hesitate. If she should have been burned, then he wants the indication to suffice for death, and he contradicts his own position, in which he judged that it should be used only for torture. Likewise, if the executioner could hold and sink her under the waters with a pole, then God does not accomplish this through his good ministering angels, nor does he keep and repel witches from the waters, as he himself will later say at number 238. For whose human strength can overcome that of angels? If angels were driving her out, how could it happen that the executioner, with a pole and with the angels striving against him, could submerge her and suffocate her in the waters?
Therefore there was no reason for that writer to doubt and meditate so much about this species of fact; rather, he could have concluded in a few words: this effect does not flow from natural force, nor should it be thought to flow from God, for the will of God and the efficacy of his ministers would not be made void in this one witch. It remains that the force of swimming out is external, and from that one who delights in the death and deception of human beings, whose attempts, however, God for the most part allows to be overcome by the ministers of justice. I see here the demon trying to stand by the agreements made and driving the witch out of the waves; I see him conquered by the executioner’s pole. How can that happen? Surely the finger of God is here, giving victory to the executioner because he is carrying out the judgment of God. If he had meditated on these and similar things, most true as they are, he would not have fled to that rule by which he thinks all difficulties are decided and exhausted:
Judges, when indications preceding are present which by law suffice for torture, can, as a supplement of fuller and lawful proof, make the proof by water without wounding conscience, in such a way that, by a clear and strict command to the lictor, with a sufficient interval interposed, it may be sufficiently apparent to them and to all bystanders from the floating or submersion of the accused.
[margin: Del Rio cites the jurist’s number 24, numbers 32-34, and number 35 with following numbers around the old-woman example and the rule about using water as a supplement to proof before torture]
He adds also other cautions about the manner. First, this interval should be one and somewhat wider, distinguished and tempered at least by the judgment of the judge alone and not of the executioner; and the judge ought to be watchful that all fraud, collusion, trickery, negligence, or entanglement be absent. This caution is good, if the thing itself were lawful. For all those unskilled in sinking and swimming, and also those who are skilled, when they are submerged, before they are suffocated by the waters, are ordinarily lifted several times above the waters by head and sometimes by shoulders, while human nature attempts its own preservation as far as it can. Therefore it must be carefully seen that nothing of this kind happens here which may be ascribed to magic or to a miracle. For this reason I suspect the author adds that the judge ought to look with every care into what should be attributed to nature and what to a miraculous indication.
But all cautions are in vain, nor will any human prudence ever be able to make holy what, because it is illicit, ought to have been avoided. Nor are we now disputing what the judge must do in order to exercise this judgment cautiously and circumspectly, but whether it is lawful for him to exercise it in any manner at all.
As for what he afterward requires at number 38, that the judge not approach this experiment unless very strong indications, and more than sufficient for torture, have first preceded: this conflicts with what he said at numbers 24 and 35, that stronger presumptions are sufficient which would commonly suffice for torture. If those which suffice for torture do suffice, why does he now require more than sufficient indications? If more than sufficient indications have preceded, what need is there for this proof? For just as, for condemnation, when the accused has been lawfully convicted, or when by the notoriety of the fact itself the matter is clearer than the noonday light, this proof would be superfluous, so also it will be superfluous for torture when sufficient indications for it are held. For superfluous inquiries are not permitted to judges, as will be taught in the following book.
[margin: Chapter 2, de probationibus, is cited where Del Rio says superfluous inquiries are not permitted to judges]
As for what he adds at number 39, that there is a difference between witches and other criminals, and that in witches, because of the difficulty of proving, greater license is granted to judges so that this proof by water may be admitted, while in other crimes it is not admitted, but canonical and ordinary purgations suffice; likewise, that this is peculiar in witchcraft, that although Panormitanus, whom other old doctors followed, judged that in purgation by cold water floating was a proof of innocence, nevertheless in the crime of witchcraft alone the contrary must be noted: this, since it is said gratuitously, could gratuitously be denied, and from the words of St. Bernard already cited, sermon 66 on the Song of Songs, at the end, where the same thing is attributed to heresy and hypocrisy, it appears false.
Yet this is now by no means to be neglected by us. For from it the vanity either of the proof or of its defense can become clear. If this proof were instituted for condemnation after torture, perhaps what is alleged about the difficulty of proof in this crime would have some relevance. For the entire difficulty which is peculiar to this crime and occurs to judges arises from the fact that witches very often elude torments through sleep or lack of pain. Before torments, however, for indications which suffice for torments, you will find far more points of weight against witches than against adulterers or those guilty of abominable lust. For there are more accomplices of witches, and this crime is not committed more secretly than those which I have mentioned, in which there is only one person conscious of the deed, and the secrets of the bedchamber are sought, things which, as is commonly said, are hidden even from the sun and the other stars.
Since, then, the author wishes this proof to be put forward only before torture, there is no reason for him to introduce anything peculiar to it in this crime of witches. Moreover, in that he not only excepts this crime from the other crimes, but also attaches to it a certain contrary condition from outside, namely that although other criminals, justly accused, sink, nevertheless in this crime witches cannot sink, certainly if this happened by reason of the crime, it would follow that they should sink when, accused of another crime, theft for example, they were thrown into the waters according to that old rite of which Panormitanus treated, if they were guilty. Therefore I ask: will they sink or not?
If he says that they will sink, the contrary is clear from the woman whom he narrated at number 30: she was not sunk by the force of her own weight, but by the violence of the pole pressing her down; and nevertheless he said she was a witch and said she had been condemned because she had violated the mandate of exile twice, and so not on account of witchcraft. For they would not have condemned her to the waters by reason of witchcraft where it is the custom to be sent to the stake according to the laws of the Empire.
If he says that they will not sink, then it now follows with certainty that this floating was not introduced by God merely to direct the judge in the trial of that crime about which there is dispute. For then the question would not be whether she was guilty of witchcraft, nor would the judge be inquiring into that, but whether she was guilty of theft, let us say, or adultery. In these crimes the judge would then be deceived by this proof. For while he is inquiring about theft, if she is not submerged because she is a witch, he will surely absolve one who is truly guilty of theft because she has not been submerged, and therefore must be judged free of theft. Nor does it matter that from this he will take an indication of witchcraft. For what if no other indications have concurred, since, although she is a witch, no suspicion about her was being entertained? Certainly it will be the judge’s duty to dismiss her, although by a miracle God has taught that she is a witch. If he does not dismiss her, he will be an unjust judge, who does not dismiss one guilty of theft after she has been purged by divine judgment. You see into how many goads of conscience those men cast themselves who follow these superstitions of novelties and vulgar opinions.
Now let us see by what arguments he defends his proof, and I shall try to answer each in order. They are contained in chapter 2 and afterward throughout chapter 4, where he adds one very long excursus in which he narrates and describes God’s providence as most sweetly ruling all things, as providing most excellently for mortals so that the demon may not deceive them, and as laboring through the guardian angels even of each and all of the elements to perform this proof through the one who presides over the element of water.
In setting these things forth he heaps up many things not certain and not proved. And although they were all certain and proved, they would nevertheless not press us. Let it be so, then: God prevents the demon from oppressing us, as he wishes and could do. Does it follow that he harms no one? Where is Job? God prevents him from deceiving us, and especially judges and magistrates, at his whim. Does it follow that he never deceives anyone, and never any people? Where is Ahab, deceived by the mouth of false prophets? Where is Susanna, condemned on a false charge? Finally, what he says at number 223, that the cause of fewer miracles today is the inconstancy and lukewarmness of faith, is indeed one cause; but there is another better one, namely that, once the faith has now been established, there is less or no necessity for them.
And what he adds at number 226, that all works of created things, whether good or evil, are to be attributed to God, is not Catholic unless it is sanely explained. For faith forbids evils of fault, or works by which human beings sin, to be attributed to God insofar as they are evil. But I think he understood this only of the natural act, not of the moral act.
His first argument for this proof is, among many other things, that this too depends on the judge’s discretion: that he may be able to use at his discretion those proofs which he judges should be applied, and may believe them insofar as he judges something to have been proved by them, as Emperor Hadrian held. I answer: proofs are discretionary for the judge only to the extent that he uses them according to the prescription of the laws, so that he assumes none which are prohibited in law, such as this proof under discussion; and none which he either thinks offend God or ought to think offend God, as I shall later show this one does. As for what is often tossed about concerning the judge’s discretionary license in criminal matters, I shall later, in the following book, confine it within its proper limits from the sanctions of the jurists, and I shall teach that licentious insolence, abusing will in place of reason, must be restrained and moderated with reins, like an unbridled animal.
[margin: Roman-law marginalia around the first argument include Emperor Hadrian, Digest De testibus, law 3, section eiusdem, and the judge’s discretion in proofs; Del Rio treats such discretion as bounded by legal prescription and divine offense. The margin also cites the argument from law necnon, law 28, section eis, at the words sed si leges non prohibeant, Digest, Ex quibus causis maiores in integrum restitui, and law relegati, Digest De poenis]
The second argument presupposes that this purgation is not prohibited by canon law in the crime of witchcraft. This is because canon law does not expressly say that it is not lawful to use this proof in this crime, and things which are not expressly prohibited are not prohibited from standing; also because, as the offense increases, the mode of penalty and torments ought to increase. From this foundation he argues thus: We see this crime increasing daily; therefore it is lawful for a judge to discover new, not-prohibited kinds of inquiring into truth. He proves this by many general sayings of the doctors.
I answer: the presupposed foundation is empty and false. For in this way one could prove that in the crime of witchcraft, for uncovering the truth, even a duel could be assigned to the judge by the prince. For neither is a duel, in the crime of witchcraft, prohibited by law with express mention made of witchcraft. In this same way he could infer the same thing about the proof of glowing iron. But since in these cases it is clear that an inference of this kind must not be made, it is sufficiently clear that this cannot be said about the proof of cold water either.
Just as, therefore, a duel cannot be conducted for the proof of witchcraft simply because duel has been generally forbidden, so too this proof cannot be applied because of the same general prohibition. For laws prohibiting some purgation do not ordinarily add that it is not lawful to use it in this or that crime; they simply forbid its use. For one who prohibits generally prohibits it in every matter. One who forbids stealing forbids stealing gold, silver, and iron. One who forbids trial by glowing iron forbids trial in every case in which the reason of the prohibition applies. Therefore the canon which forbids the judge to use the proof of cold water forbids him to use it in every crime.
For there is no crime in which the reason for the prohibition does not apply equally. Here the reason is that this kind of proof is superstitious, uncertain, and joined with tempting God, as the canons themselves indicate, cited above in question 4, section 3, at the end, and section 4. By them such purgations by cold water are expressly annulled; litigants are forbidden to furnish them, and judges are forbidden to demand them. And all the doctors, both theologians and jurists, without exception, have taken this as a general prohibition. They have not thought that any crime should be excepted by them, nor even dreamed, down to this day, that witchcraft should be excepted, because they saw that the reason for the prohibition is equal in witchcraft and in other crimes.
[margin: Marginal canon-law references against cold-water and vulgar purgation include chapter Menna at the end, 2 question 5; chapter in libro namque at the end, 2 question 5; chapter consuluisti, 2 question 5; chapter ex tuarum, De purgatione canonica; chapter sententiam sanguinis, De clericis vel monachis saecularibus. The main-text authority list immediately following gives the theological and juristic subcitations]
The theologians and jurists have spoken generally and without exception of any crime, for they add none: St. Thomas in II-II, question 95, article 8, reply to objection 3, and Cajetan there; St. Antoninus; Binsfeld; Peter Thyraeus in his book on the demon-possessed, second edition; Peter Gregory in book 48 of the Syntagma, chapter 19; Abbas in the chapter licet, at the end, ne clerici vel monachi; Matthew de Afflictis on book 2 of the Constitutions of the Kingdom, title 31; Turrecremata on the said chapter consuluisti; Abbas and Ancaranus on the final chapter de purgatione vulgari, where he speaks well; Andrew Alciato in the Compendium of Judicial Procedure; Jodocus Damhouder in his criminal practice, chapter 43; Navarrus, Manual, chapter 11, number 39; Nicolas Remy, book 3 of the Demonolatry, chapter 9; Andreas Gail, book 2, On the Public Peace, chapter 7, number 24, where, as Ancaranus also expressly adds, he says that it is a mortal sin; John Althusius in his admonition to judges; Joachim Beust, Borcholt, Venatorius, and others cited by Godelmann in the said chapter 4, numbers 23 and 27, who adds that this common opinion of the doctors is also approved by all the juridical faculties of the academies of Germany.
Certainly, since the canons speak so expressly and are understood generally by all the doctors, for the adversaries do not bring forward for themselves even one Catholic theologian or one jurist, Cujas only mentions the ancient custom in the Feuds and does not praise or approve it. Is it not quite rash and ill-considered to depart from the common consensus of the academies and doctors, founded on the mind and words of the canons, on account of petty reasons? Therefore they vainly flatter themselves with this escape. For the prohibition of the canons is sufficiently expressed, because a negation is of a malignant nature and destroys universally whatever follows it. The mode of penalty increases with the offense when that mode is not contrary to the laws; that this proof is contrary to them has now been made plain. With this line broken, produce another.
The third argument is like the following ones, all of which have many words but little force. I shall reduce them analytically to their own enthymemes or syllogisms. For in this way the force of the arguments is best understood, and all disguise is removed. The sum of the third argument, then, is this: judges can and ought to apply that penalty which the accused fear most, and by which they themselves and others, terrified by the example, will be more effectively deterred from the offense. Of this kind, as to female malefactors, are fire and water. Therefore judges should use these elements especially in this crime.
I answer first: if this argument had any force, it would also prove the same concerning glowing iron, about which nevertheless even the adversary himself does not assert this. But if he does assert it, then he plainly opposes all the doctors, the canons, and others too; what sort of modesty that is, let him see. If it had any force, it would prove this not only in witches, but also in murderers and in other crimes, which nevertheless the adversary denies in other cases. For the torment of fire is most to be feared by a robber as much as by a witch.
Moreover I ask: why do witches fear water more than cords and the rack? Because, he will say, they can resist those, but not this? God, he says, does not permit it. How do you know? By experience. Thus the beginning is always begged. Secondly I answer: the major proposition is absolutely false, if it is a universal proposition. For judges cannot apply penalties which are not supported by the laws or by legitimate customs. This use of cold water, however, is a tempting of God and is contrary to law, and therefore its use is a corruption, not a custom. If he denies that the proposition is universal, the syllogism collapses because it sins in its form.
[margin: The third argument’s margin points back to canon-law authorities against glowing iron and vulgar purgation: chapter Menna at the end; chapter consuluisti; chapter ex tuarum; chapter sententiam; and the final chapter De purgatione vulgari]
The fourth argument: For investigating truth, judges ought to use the mode which favors public utility more. This proof is such a mode. Therefore it must be used. The minor is proved because it tends to the preservation of public utility, to the salvation and reconciliation of the human race, and to the yield of all the fruits of the earth.
I answer: the minor is false, and its proof assumes what had to be proved. For the question is not whether witches who are true witches, and whom the judge knows to be such, should be punished; nor whether the judge can use any lawful methods whatsoever. The affirmative part of these is established. The question is whether this method is lawful. This is where that writer is deceived, because he thinks that for some act to be lawful and good it is enough if by it one tends toward a good end. Is it not good to give health to the sick? Certainly, if you look at the end. But if you confer it through maleficium, or if someone tends toward it through fornication or another sin, the act will be evil and lethal. Why? Was it not tending toward a good end? Yes, but through a means that was not good. I assert the same here: these judges tend toward a good end, but they sin because they do so through bad means, namely superstition and the tempting of God. Besides, this argument too labors under the same defect as the preceding one: by proving more than it intends, it proves nothing. For a judge would tend toward the same end through duel or through purgation by glowing iron, and yet that is not lawful for him.
Fifth. It is established by experience that witches especially fear and detest the proof by water, because they know that they will be detected in this way. Therefore it is likely that, once convicted by such an indication, they will not dare to undergo the rack, or at least will not deny on the rack what they openly did before all in the waters.
I answer that this consequence has no force. Next, if they especially detest this proof, how are they accustomed to offer themselves to it so frequently? Likewise, whence do they know for certain that they will be detected in this way, unless because they are conscious of such a pact? If they are conscious of a pact, then this happens by the demon’s operation, which the adversary denies. Finally, I would rather believe that they would then more willingly undergo the rack and bear torments more stubbornly, so that by endurance they may wash away the preceding indication of the water. For in this way they would make empty that attempt of the wicked judge.
Sixth. The indications from deposition and denunciation by associates and accomplices are uncertain and fallacious. Therefore the judge can add this proof to strengthen them. The antecedent is proved both because the more powerful malefactors are accustomed to cover themselves with masks, because the devil can display the faces of innocents at meetings, and because such meetings are uncertain and imaginary.
I answer, first, that not all meetings are imaginary and uncertain, as I taught above in book 2, and not all are always present in masks, as I also taught there. Nor is the devil permitted by God in this crime to display innocents, as I also taught in the same book 2. Thus the antecedent is false. But if I were to concede it and now hold it as confessed, nevertheless that inference would not follow. For those indications can be strengthened by other lawful indications, about which the following book will treat. And, if there were no other lawful indications, it would be better that a guilty accused person be absolved than that he be condemned from prohibited indications and by an illegitimate proof, as Pope Stephen witnesses. Finally, this argument would also prove the same of every vulgar purgation.
[margin: Argument 6 concerns accomplice testimony, masked gatherings, and Del Rio’s Book II discussion; the margin cites Pope Stephen in the chapter consuluisti]
The seventh argument is drawn from the words of Binsfeld, against his meaning, I will not say calumniously, but certainly not altogether candidly twisted and woven together. In those words that learned and pious man exhorts judges to punish this maleficium, and proves that in this crime more is to be given to the testimony of accomplices than in other crimes. From these the adversary concludes that this proof must therefore be received, because this proof is more certain than those testimonies.
I answer: it is not more certain but less certain, because no human being is as mendacious as the devil, on whose pact this proof rests. Nor does it matter whether it is more certain or not. For the reason of these proofs is very different. Proof by testimonies rests on divine, natural, and positive law; this proof, as has already often been said and must be proved in the following section, is contrary to every law.
The eighth argument, with Binsfeld as witness, is that an indication of homicide taken from a corpse bleeding in the presence of the killer seems to be ascribed to divine miracle alone. Therefore one should think similarly about witches who float. I answer: what I think about the antecedent I have indicated more than once in this work. But let it be granted that it should be ascribed to miracle: is the reason of this proof the same? You say so; you do not prove it. I, who deny it, will give the difference. In that shedding of blood there is no underlying cause of suspicion concerning a pact with the demon; nothing superstitious is mixed there; a sign is not there sought from God, and therefore God is not tempted either. The following section will teach that all these things are found in the proof by cold water.
The ninth argument, he says, is unconquerable if it is diligently considered. Attend then, I beg you, reader, with me, and prepare the grass which we, defeated, may offer to the victor. But what is this? Have the mountains given birth? Certainly I find nothing here from number 65 up to number 70 that has the force of an argument except this: Judges cannot be harmed or impeded by malefactors in those things which pertain to judgment and its order. From the beginning of the world the demon has always tried, and still tries, everything so that malefactors may not be punished and so that he may snatch his beloved ones away from judges. Therefore he once persuaded people that everything witches confess was the dream of deluded minds, and thus for a long time he achieved this, that by impunity and contempt for judges the number of guilty persons grew wonderfully.
For the same reason both witches and the demon would most eagerly wish to harm and exterminate all judges. They cannot do so because God does not allow it, whose power is infinite while the demon’s is finite. Therefore, if God so greatly shows his power in the defense and protection of judges in this crime, why will God not plainly wish and work the same thing around the execution of this proof by water, which is, as it were, an index and minister for revealing and recognizing the truth of this maleficial heresy? Thus he concludes from the premises which I have narrated. Briefly, he says this: God shows his power in protecting judges against the snares of demons and malefactors. Therefore he also wishes to show it in detecting their crime.
I answer: what if I deny the consequence and say that the argument proceeds from merely particular cases? God does this; therefore he also wills that. If you say that the consequence is proved because, just as it is fitting for God to protect judges lest they be harmed, so it is fitting for him to direct them lest they be deceived, I answer: they are never deceived when they have used modes and means approved by law. For a judge is not deceived who absolves a guilty person whom the acts show to be innocent, or do not show to be guilty. Never to be deceived belongs to God alone, nor does this belong to human judgments. Moreover, God often wills that many crimes be punished in full in the following age, and therefore he allows them to lie hidden here. But is it better provided for the republic if they are detected? Certainly. But is God always bound to do what is more useful for each republic? What if he wishes to punish them? I could also say that that utility of the republic yields to divine honor, and that divine honor often requires certain crimes to be kept for expiation by the last future judgment.
Would I not prove the same thing by the same argument about thieves and assassins? God shows his power in protecting judges and other ministers of justice, so that sometimes with a small number they seize more numerous and fiercer men and avoid their swords. Therefore he will also wish to extend this providence of his to the detection of their crime. Finally, these judgments do not always proceed without any impediment or injury to judges or ministers of justice, as I taught in book 3. Behold how, with a light hand and a short sickle, once the hempen rope of this so invincible ram has been cut, the machine has been disarmed.
The tenth: a consultory lot is permitted when four conditions concur. This proof is a kind of consultory lot, and those four conditions are found in it. For it is not done in ecclesiastical elections, but it is done in spiritual matters and in matters pertaining to the salvation of the soul; it is done with reverence and from necessity, because other proofs are lacking. Therefore the judge will be able to use it.
I answer: this lot is not consultory but divinatory. For a consultory lot asks what should be done or judged, and this about the future. A divinatory lot asks what will happen, or what past hidden thing has been done. In this proof, however, the inquiry is not about the future, nor about what must be done, but only about the past, or about a fault and commission that is not open. Therefore this would be a divinatory lot. This proof is therefore prohibited, as the other divinatory lots are. Indeed, consultory lots too are prohibited today, nor does God permit us to investigate his will through extraordinary means not approved by ecclesiastical law or Sacred Scripture. See what I said above, chapter 2, question 7, section 4. Nor are those four conditions present here, for necessity is lacking.
[margin: Arguments 8-10 concern Binsfeld on corpse-bleeding before a killer, the jurist’s numbers 65-70 on God’s protection of judges, and consultory versus divinatory lots; Del Rio points back to chapter 2, question 7, section 4, and to the canon-law text in chapter sortes, 26 question 2]
The eleventh argument is this. The author of the Malleus maleficarum, from Scotus, says that it is lawful, without mortal sin, to use vain and superstitious remedies for removing maleficium, provided they are done without another maleficium and every pact with the demon, even an implicit one, is absent, because this is to destroy the works of the devil, which is praiseworthy. Hubertinus and Goffredus think that maleficia can be destroyed by the same art by which they were made. The emperor too, in the law eorum, in the Code, De maleficis et mathematicis, permits maleficia which are directed toward a good end, namely toward the health of human beings, and so forth. Therefore, since in this proof every pact is absent, and maleficium too is absent, the judge will be able to use it, even if something superstitious were mixed in.
I answer, first, that here the question is not about destroying a maleficium, but only about proving that a maleficium has been committed. Consequently, here the work of the devil is not destroyed, but only indicated. Next, the pact is not absent here. As for that imperial constitution also, unless you say that it speaks only by way of tolerance and not by way of approval, it is unjust and contrary to divine law, because divine law has forbidden every maleficium. For evils must not be done so that good things may come. As for the opinion of Hubertinus, Goffredus, and, as it seems, the Malleus maleficarum, we shall refute it copiously in book 6. Insofar as it concerns the destruction of a maleficium by maleficium, it is certainly erroneous; insofar as it concerns destruction by merely superstitious means, it is at least rash, because superstition is always in vice and sin, and must never be called lawful. Nor did Scotus say anything else than that it is lawful to destroy maleficia by taking away the sign. Scotus does not say that it is lawful to use superstitious and vain remedies. But more will be said about this matter elsewhere, in book 6.
[margin: The eleventh argument cites the author of the Malleus maleficarum drawing on Scotus; Hubertinus and Goffredus on destroying maleficia by the same art by which they were made; Codex, De maleficis et mathematicis, law eorum. The margin adds the Paris condemned articles 5 and 6; Thomas Aquinas, II-II q.95 and IV Sentences d.34 q.un.; Del Rio’s Book I, chapter 1; the same Paris article 5; Leviticus 19 and 20; canon Admonent, 26 q.2; canon Nec mirum, 26 q.5]
The twelfth argument is this: all things that are done by human beings are to be judged from their intention in such a way that, if the intention is good and free of deceit, the action is free of sin. For sins are not sins if they are not voluntary. Therefore, if a judge, thinking this to be lawful for him, uses this remedy with a good intention and without deceit in order to find the truth, he sins either not at all or only a little.
It is confirmed, first, because to err in matters that do not pertain to faith is either no sin or only a small sin. The argument is confirmed, secondly, because, according to Menochius, judges have a twofold discretion: one bound and tied down, the other free and full. This latter can be called a grant made by a man or by law, by which a judge, setting aside law, equity, and reason, but led by his own appetite and yet alien to deceit, may establish whatever he pleases. It is confirmed, thirdly, both because without this kind of proof witches will easily elude judgments, and experience teaches that they are not made better by any canonical purgation, and because one single way of establishing something certain is taken away from judges, and so they are entangled in innumerable troubles and scruples. From all these points, from number 82 down to 91, he concludes that scarcely any guilt, whether of a neglected law or canon, or of a violated religion, is to be feared for the judge who, led by his own appetite but alien to deceit, and using that full discretion, seeks to know the truth by this proof.
[margin: The twelfth argument cites Menochius, De arbitrariis iudicum quaestionibus, question 6, on judicial discretion. The margin to Del Rio’s reply cites Gregory, Moralia, book 26, chapter 16; Thomas Aquinas, I-II q.74; Acts 3:17; Thomas Aquinas with Bartolome Medina on I-II q.74 a.5 and q.76 a.2; scholastic material on II Sentences d.22; Gregorio de Valencia, disputation 2, question 3, point 6, and question 5; Bartolome Medina on I-II q.74 a.2]
I answer: many things occur here that must be discussed, of which one part has already been explained, and another part will be explained more fully in the following book. First of all, that rule, if it is to be consonant with theological doctrine, must of course be understood of sin whose reason is taken from intention alone. For since sin is threefold, of weakness, malice, and ignorance, that which is committed from ignorance can be committed with a good intention and yet be sin, as is certain to happen when ignorance is vincible. For then a good intention does not altogether excuse the person who does what he ought to have known was not lawful for him. This is more certain than that it now needs to be proved by me.
Only what is done from wholly invincible ignorance lacks every sin, because it is considered altogether involuntary. Vincible ignorance merely lessens sin; affected ignorance increases it, for it makes the sin one of malice. Therefore one must consider in what manner the judge is ignorant that it is not lawful for him to use this proof. If he expressly refused to know and learn this, then he directly affected ignorance. But if, while noticing, or while easily able to notice, that he could learn it, he nevertheless neglected the offered occasion of learning, then he is laboring under ignorance indirectly affected. And just as the former is expressly, and in reality, counted as a sin of malice, so the latter falls implicitly and interpretatively into the same category. He will sin in this way as often as, directly or indirectly, when an occasion of learning again offers itself, he either expressly refuses to learn or neglects to do so.
These things apply to judges, because they are bound to learn this. By the very fact that they are judges, they are bound to know the things which the office of judging requires; and those who are less learned are bound to seek counsel from learned and pious men. Therefore, when they neglect this, they cannot be excused by sluggish ignorance, since by the very easy business of consulting academic faculties they can learn it. But if someone should nevertheless contend that this matter is difficult to know, though in my judgment it is easy to know because it has been sufficiently decided by the supreme pontiffs, and if a judge had applied some diligence in order to know it, but not all the diligence which, because of the difficulty of the matter and his own status, he could and was bound to apply, the ignorance will still be vincible, and therefore joined with sin, because such ignorance does not remove voluntariness. But when someone is to be said to have applied sufficient diligence belongs to another, longer disputation. For us it is enough to have overthrown that foundation on which the adversary was relying, namely that a good intention alone suffices to keep someone from sinning by doing what he ought not to have done.
[margin: The margin cites Vitoria, Relection on the Indians, no. 9; Vega, book 6 on the Council of Trent, chapter 18; Soto on IV Sentences, distinction 5, article 2, single question; Banez, II-II q.10 a.2, dubium 10; Valencia, preceding point 1; Angelus on II Sentences d.22 q.2 a.2]
To the first confirmation I answer that it remains sound, because even to err in those things which pertain to morals and the precepts of the Decalogue can be mortal, if someone errs through ignorance of things which he was bound under mortal sin to know. Judges are bound in this way to know those things which concern their office and contain grave prejudice, as in our case. Since every voluntary error about any matters whatever is always sin, according to the more common and truer opinion against Durandus, it follows that the more dangerous the error is and the greater the harm it brings, the more serious the sin of error will be. Here, however, the harm is very great, because it fosters superstition, tempts God, and inflicts a very grave injury on one’s neighbor.
To the second confirmation I answer: judges who use such free and full discretion are not judges but tyrants, since in their heart is that saying:
Thus I will; thus I command; let will stand in place of reason.
They command rather than know, and therefore they reign rather than judge. Was such a loose grant ever made by any man or by any law, that it should be lawful for the judge to avoid deceit alone, but otherwise to set aside law, equity, and reason, follow his own appetite, and thus establish in judgment whatever he pleases? Good God, to what have such judgments fallen? Is this license to be granted by Christian people? Whoever removes law and equity, does he not take away justice, which is supported either by benign equity or by strict law? What is equitable and good belongs to natural law. You take this away if you allow the judge to depart at once from equity, from the good, and from law. That king of Israel was speaking truly when he said that judges judge not the judgments of man, but of God. It is the part of man to follow the judgment of reason, which distinguishes us from beasts, and, with reasoning going before, to command human affections. Since these often strive against the prescription of the law, he did not wish judges to follow human judgment, but divine judgment, because the laws of judging had been received by the judges from God. Therefore whoever judged according to those laws remembered that he was judging God’s judgment. The adversaries do not even embrace a human judgment, but the judgment of beasts. It belongs to man never to set reason aside; it belongs to beasts to follow appetite. Therefore those who permit a judge, with reason set aside, to be led by his own appetite, do they not place a beast, not a man, on the tribunal of judgment?
No, no. Whoever judges with the laws held in contempt will be judged by God. Are you a prince, and do you have authority to make law? Obey the just laws which you have made, not from fear of the penalty which you have fixed, for no one will exact that from you, but from fear of divine law and of the law of nature, and from love of honesty, propriety, and praise. There is no prince who is absolved from God’s law or from the law of nature, or who can transgress this law and this equity without sin in judging. Inferior judges under a prince, those supreme ones who immediately act in the prince’s place, so long as they do not aim against the mind of the law, can weaken the proper force of the words by extension or restriction. Other judges lower than these, from whom an ordinary appeal is usually available, at least in civil matters, are bound even by the words of the law. If they judge contrary to them, they must be considered to sin according to the common opinion of the theologians.
Those words of St. Augustine are worthy of note: “In those temporal laws, although human beings judge concerning them when they establish them, nevertheless, when they have been established and confirmed, it will not be lawful for judges to judge concerning them, but according to them.” St. Gregory also writes that divine and human laws are to be turned over by judges, and that when they have turned them over, they must judge according to what has been established for them. And he adds the example of Moses, who always brought the complaints of the people into the tabernacle of the Lord, and proposed judgments according as the Lord commanded him. “Namely,” he says, “instructing us to give sentence not from our own heart, but from the divine command.” The judges of Israel were bound to follow this command of God, since they are ordered to judge according to the law given to them by God through Moses; indeed the same necessity lay upon the king himself. Certainly Asconius testifies that among the Romans judges were accustomed to swear an oath upon the laws, and that a solemn formula was first recited to them. But nothing has ever been judged more pernicious, nothing more dangerous, than if a judge is allowed to indulge his own affection. Appetite separated from reason is no better than passion and affection. Therefore let such fullness of discretion be far from the minds of those who fear God; let it be far from Christian benches of judgment, such as was proposed in the second confirmation.
[margin: The margin cites Thomas Aquinas, I-II q.96; Medina and Banez with Aragon on the same legal-obedience material; Cajetan, Summa, s.v. Iudex; Navarrus, Manual, chapter 25, nos. 5 and 13; Augustine, On True Religion, chapter 31; Gregory’s canon-law example at chapter Summopere, 11 q.3; Deuteronomy 17:10 and Deuteronomy 17:19]
To the third confirmation I answer: it is better that a hundred guilty witches be absolved than that one innocent woman be condemned or brought into danger through such a proof. It is better for them to be absolved without the judge’s sin, when he has tried all lawful things, than for the truth to be discovered and the crime punished with sin and superstition. What will it profit you, O judge, if you free the province from criminals but bring loss upon your own soul? What does it profit you to take good counsel for others if, by sin, you have taken bad counsel for yourself? But she will become worse if she is dismissed. That will not harm you, but her; she will obtain her own Nemesis.
As for what is added about scruples, I would gladly say, “They trembled where there was no fear.” Let this error once be removed from their minds, and their erroneous conscience will cease. Let them be taught to fear superstition. Let them be taught how grave a sin it is to tempt God. Let them be taught that it is a mortal sin not to obey the Church, which has universally forbidden vulgar purgations. I do not think that I am mistaken in this matter. I believe that one of the chief reasons why they do not attain the truth by canonical and civil means is that they trust in this superstitious proof, and distrust the rest, that is, justice and God, and therefore they approach those means more negligently. Does this not deserve to be deceived and mocked?
[margin: The margin cites Navarrus on mortal sin in connection with disobedience to the Church’s universal prohibition of vulgar purgations; the remaining subreference is abbreviated in the source]
The last argument is taken from the words of St. Bernard, on the Song of Songs, sermon 66, at the end. From his narrative they infer that this custom was miraculous and established in usage in the ancient Church. But I answer that the words of St. Bernard do not prove this, and that St. Bernard lived long after the incursions and dominions of the Lombards and barbarians in Italy and Gaul, namely after the year 1100, so that an authority older than he must be sought in a matter which Pope Stephen condemned before Bernard, Lucius III at the time of Bernard, and Honorius III soon after Bernard. Nor does Blessed Bernard approve or praise this custom, nor does he teach that it was an ecclesiastical custom, but only that it was the custom of certain private persons. It must also be noted that the heretics of whom he speaks were the Apostolics and the Poor of Lyons, also called those of Barulo. Bernard’s words are these:
It has been proved that they choose to die rather than be converted. Very often the faithful, laying hands upon some of them, dragged them into the midst. When questioned about the faith, since they denied absolutely everything, in their own fashion, concerning the things of which they seemed suspect, they were examined by the judgment of water and were found liars. And when they could no longer deny it, since they had been discovered by the water not receiving them, they took the bit, as it is said, between their teeth, and not so much confessed as professed their impiety, as miserably as freely, openly overthrowing piety and ready to undergo death for it. Those who stood by were no less ready to inflict it. And so the people, rushing upon them, gave the heretics new martyrs of their own perfidy. We approve the zeal, but we do not recommend the deed.
These are his words. From them it is clear that this was an action of the crowd, and that this deed is not approved by Bernard. How would he approve it, being both skilled in and most observant of the canons? If you say that Bernard is speaking only of the hasty death inflicted on them, and condemns that, not the indication of the water, I answer that St. Bernard must necessarily be understood of both. For if that examination was lawful, then the death which followed from it was also lawful. For after guilt had been detected in that way, people were accustomed immediately to hand them over to punishment. Next, St. Bernard does not approve that examination, but only narrates what was commonly done, when this proof still flourished in fact in a cause of heresy, with princes dissembling and not sufficiently ready to obey canonical decrees, which most people, because of the barbarity of the age, did not know. I have answered the arguments of that Catholic writer and have received the spears he hurled. Now, in turn, I shall cast the darts of the common and true opinion.
[margin: Bernard, sermon 66 on the Song of Songs, at the end; Del Rio’s chronology compares Pope Stephen before Bernard, Lucius III around Bernard’s time, and Honorius III soon after Bernard. The heretical groups named in the main text are the Apostolics, the Poor of Lyons, and those called of Barulo]