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Women s Human Rights The International and
Comparative Law Casebook 1st Edition Susan Deller
Ross Digital Instant Download
Author(s): Susan Deller Ross
ISBN(s): 9780812200027, 0812200020
Edition: 1
File Details: PDF, 42.08 MB
Year: 2009
Language: english
Women's Human Rights
Pennsylvania Studies In Human Rights
Bert B. Lockwood, Jr., Series Editor

A complete list of books in the series is available from the publisher.

Women's Human Rights
The International and Comparative Law Casebook

Susan Deller Ross

PENN

University of Pennsylvania Press

Philadelphia
Copyright© 2008 University of Pennsylvania Press

All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of
this book may be reproduced in any form by any means without written permission from the publisher.

Published by
University of Pennsylvania Press
Philadelphia, Pennsylvania 19104-4112

Printed in the United States of America on acid-free paper

10 9 8 7 6 5 4 3 2 1
Library of Congress Cataloging-in-Publication Data
Ross, Susan Deller
Women's human rights: The international and comparative law casebook/ Susan Deller Ross
p. cm.-(Pennsylvania studies in human rights)
ISBN: 978-0-8122-2091-9
Includes bibliographical references and index.
1. Sex discrimination against women-Law and legislation. 2. Women (International law).
3. Women's rights-International cooperation. 4. Human rights. I. Title
K3243.R67 2008
341.4'858-dc22 2008018607
To the Global Advocates for
Women's Human Rights
Summary of Contents

Table of Contents Xl

Preface xxix
Using This Book. xxxiii
Acknowledgments XXXV

Chapter 1. Women's Status and CEDAW 1

I. Women's Human Rights: An Introduction. 2
II. Women's Status Around the World 11
Ill. The Convention on the Elimination of All Forms of Discrimination
Against Women 15
IV. Case Study: Afghanistan 24

Chapter 2. Equality Doctrines and Gender Discrimination: The Evolving

Jurisprudence of the UN Human Rights Committee and the
U.S. Supreme Court 54
I. Early International Sources of Women's Human Rights 54
II. The UN Human Rights Committee: Its Role and Function 56
III. Equality Doctrines, Gender, and the United States Supreme Court: A
Comparative Standard 67

Chapter 3. The Interrelationship of the ICCPR and the ICESCR; and the
Human Rights Committee's Evolving Equal Protection
Doctrine 91
I. The International Covenant on Economic, Social and Cultural Rights
(ICESCR) 91
viii Summary of Contents

II. Applying Equal Protection to Different Sex-Based Statutes 103

III. Case Study: Philippine Family Law 112

Chapter 4. Conflicting Human Rights Under lntemational Law: Freedom

of Religion Versus Women's Equality Rights 115
I. A Comparison of Religious Fundamentalist Norms in Five Religions 115
II. The UN Charter and Universal Declaration of Human Rights 134
III. Religious Freedom and Women's Rights Under the ICCPR and
CEDAW 145

IV. A Comparative View of How the Conflict Between Religious Freedom

and Women's Rights Is Resolved Under the U.S. Constitution 147

Chapter 5. Enforcing Women's Intemational Human Rights Under

Regional Treaties: The American Convention on Human Rights
and the African Charter on Human and Peoples' Rights 153

I. Introduction to the American Convention on Human Rights 153

II. A Challenge to Costa Rica's Gender-Based Nationality Law 154
III. Case Study: Costa Rican Nationality Law Revisited in a Costa Rican
Court 163
IV. Other Women's Issues in the American System 164
V. Introduction to the African Charter on Human and Peoples' Rights 167
VI. The Relevance to Women of the African Charter on Human and
Peoples' Rights 168

Chapter 6. Enforcing Women's Intemational Human Rights Under

Regional Treaties: The [European] Convention for the
Protection of Human Rights and Fundamental Freedoms 198
I. Introduction to the European Convention for the Protection of
Human Rights and Fundamental Freedoms 198

II. Using the European Convention 202

Chapter 7. Economic Empowerment and Employment Discrimination:

Europe and the United States Compared 244
I. Women's Economic Empowerment 244
II. The European System 245
III. The United States System 274
 Summary of Contents lx

Chapter 8. The Special Treatment Versus Equal Treatment Debate 285

I. The International Labour Organization 285
II. Special Treatment Versus Equal Treatment in the Context of
Childbirth and Childcare 299

Chapter 9. CEDAW in Practice 326

I. Egypt as Case Study: CEDAW's Effectiveness in Addressing the
Subordination of Women in Marriage 326
II. Strategies for Using CEDAW to Effect Change at Home 352

Chapter 10. Enforcing Women's International Rights at Home:

International Law in Domestic Courts 369
I. The Relationship Between National and International Law: Theory 369
II. Applying the International Right to Equal Treatment Without Regard
to Gender in Domestic Courts 383
III. Applying the International Right Against Slavery and Slave-like
Practices in a Domestic Court 402

Chapter 11. Strategies to Combat Domestic Violence 409

I. Domestic Violence and "Honor" Crimes 409
II. Holding the State Responsible for Private Violence 426
III. International and Regional Law Concerning Domestic Violence 436
IV. Examples of Different State Mechanisms in Action 449

Chapter 12. Strategies for Ending Female Genital Mutilation and

Footbinding: Western Imperialism or Women's Human
Rights? 461
I. Cultural Relativism 461
II. FGM: The Practice; Its Consequences; and Its Prevalence 462
III. Footbinding-Comparing Two Movements 482
IV. Breast Implants: Female Breast Mutilation? 486
V. National Legal Approaches: What Works? 490

Chapter 13. Gender and Polygyny-Religion, Culture, and Equality in

Marriage 512
I. An Introduction to the Practice of Polygyny 512
x Summary of Contents

II. Women's Voices 514

III. Equal Protection Versus Religious Freedom 526
IV. Perspectives on Polygyny 547
V. A Case Study: Uganda 556
VI. Resolving the Polygyny Question 562

Chapter 14. Women's Reproductive Rights 571

I. Introduction 571
II. Abortion: Women's Autonomy Versus Fetal Life 573
III. Sex-Selective Abortion: A Conflict of Interests? 620
IV. Child Marriage and Reproductive Rights 630

Table of Cases 639

Glossary 641
Acronyms and Short Forms 643
Credits and Permissions 645
Index 649
Contents

Preface xxix

Using This Book XXXIll

Acknowledgments XXXV

CHAPTER!
Women's Status and CEDAW
I. Women's Human Rights: An Introduction 1
II. Women's Status Around the World 2
Naomi Neft & Anne D. Levine, Where Women Stand: An International
Report on the Status of Women in 140 Countries, 1997-1998 2
NOTES 10
Women in Politics: An Update
Ancient and Medieval?
ill. The Convention on the Elimination of All Forms of Discrimination
Against Women 11
Elizabeth Evatt, Finding a Voice for Women's Rights: The Early Days of
CEDAW 12
NOTES 15
CEDAW Improvements
The Complaints Procedure
Declarations Versus Treaties
Convention on the Elimination ofAll Forms ofDiscrimination Against Women 15
NOTES 21
Gaps in CEDAW Coverage?
International Treaties
International Law Terms
CEDAW Ratifications and Reservations
xii Contents

IV. Case Study: Mghanistan 24

Wali M. Rahimi, Status of Women: Afghanistan 24
NOTES 30
Afghan Marriage, Divorce, and Inheritance Laws
Civil Code Governing Marriage and Divorce
The Current Situation of Women in Afghanistan
Physicians for Human Rights, The Taliban 's War on Women: A Health and
Human Rights Crisis in Afghanistan 32
NOTES 50
Afghanistan Ratifies CEDAW and Adopts a New Constitution
A CEDAW Roleplay
The Status of Women in Post-Taliban Afghanistan
Is International Human Rights Law Effective?
Human Rights Groups and Reports

CHAPTER2
Equality Doctrines and Gender Discrimination:
The Evolving Jurisprudence of the UN Human Rights
Committee and the U.S. Supreme Court
I. Early Intemational Sources of Women's Human Rights 54
A. The Charter of the United Nations 55
B. The Universal Declaration of Human Rights (UDHR) and the
Intemational Bill of Rights 55
II. The UN Human Rights Committee: Its Role and Function
A. The Intemational Covenant on Civil and Political Rights and Its
Optional Protocol 56
B. The Committee's Equality Jurisprudence: Challenges to Gender-Based
State Limitations on Women's Roles 57
1. Gender-Based Right to Sue Conceming Matrimonial Property 57
Ato del Avellanal v. Peru 57
NOTES 59
A Switch in Articles
Denying Wives the Right to Sue
The Committee's Approach
Exhaustion of Remedies and the Decision on Admissibility
2. Gender-Based Nationality Laws 60
Shirin Aumeruddy-Cziffra and 19 Other Mauritian Women v.
Mauritius 60
NOTES 65
A Gender-Neutral Hypothetical
ANew Test
Who Is the Victim of Sex Discrimination-the Foreign
Husband or the Citizen Wife?
 Contents xlll

CEDAW's Article 9
State Responses to Committee Views
III. Equality Doctrines, Gender, and the United States Supreme Court: A
Comparative Standard 67
United States v. Virginia 67
NOTES 88
Sex-Segregated Schools
The Bitter Fight to the End
The Four Tests: Rational Basis; Intermediate Review; Skeptical
Scrutiny; Strict Scrutiny

CHAPTER3
The Interrelationship of the ICCPR and the ICESCR; and the Human
Rights Committee's Evolving Equal Protection Doctrine
I. The Intemational Covenant on Economic, Social and Cultural Rights
(ICESCR) 91
A. The ICESCR and the ICCPR-Similarities and Differences 91
B. The ICCPR and the ICESCR-Interrelated and Interdependent,
or Stand Alone Covenants? 92
Broeks v. The Netherlands 93
NOTES 101
The Breadwinner Test
Using Article 26 of the ICCPR to Advance Women's Economic
Status
Advancing Women's Equal Right to Housing and Land
The Committee's Test
The Committee's General Comment 18 and the VMITest
CEDAW
Self-Executing Treaties
II. Applying Equal Protection to Different Sex-Based Statutes 103
A. Disability and Surviving Widow Benefits 103
Vos v. The Netherlands 103
NOTES 107
Purpose and Fit
Can One Discrimination justify Another?
The Committee's Test, CEDAW, and VMI
Discrimination Against Men
B. Civic Duty: Challenges to Sex-Based Exclusions from Jury Service 107
Ponsamy Poongavanam v. Mauritius 107
NOTE 109
Women's Absence from juries
C. Civic Duty: Challenges to Gender-Based Exclusions from Taxation 110
JH. W v. The Netherlands 110
NOTES 112
xiv Contents

The Proposed Test

The Effect of Changing the Sex-Based Law to a Gender-
Neutral One
III. Case Study: Philippine Family Law 112
NOTES 113
Questions for Discussion
The Human Rights Committee's General Comment 28 (2000)

CHAPTER4
Conflicting Human Rights Under International Law: Freedom of
Religion Versus Women's Equality Rights
I. A Comparison of Religious Fundamentalist Norms in Five Religions 115
Courtney W. Howland, The Challenge of Religious Fundamentalism to the
Liberty and Equality Rights of Women: An Analysis Under the United
Nations Charter 115
II. The UN Charter and Universal Declaration of Human Rights 134
A. The International Instruments 134
The Charter of the United Nations 134
Universal Declaration of Human Rights 136
NOTES 136
The UN Charter
Article 2 of the UDHR
Article 18
Article 29
B. A Historical Analogy: Race and Religion 137
Courtney W. Howland, The Challenge of Religious Fundamentalism 137
NOTE 139
"Due Recognition" for Religious Rights
C. Lessons from the UN Charter 139
Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) Notwithstanding Security Resolution 276 140
NOTES 141
The Court's Interpretation of the Charter
Intent
Apartheid Policy and Law
Courtney W. Howland, The Challenge of Religious Fundamentalism 142
NOTE 144
Religious Counter Arguments Under the UN Charter
D. A French Case Study: Veils and Polygamy 144
ill. Religious Freedom and Women's Rights Under the ICCPR and
CEDAW 145
A. The International Treaties 145
International Covenant on Civil and Political Rights 145
Vienna Convention on the Law of Treaties 146
 Contents xv

B. The French Case Study-Applying the ICCPR 147

C. CEDAW's Application to the French Case Study 147
IV. A Comparative View of How the Conflict Between Religious Freedom
and Women's Rights Is Resolved Under the U.S. Constitution 147
Equal Employment Opportunity Comm'n v. Fremont Christian School 147
NOTES 151
Free Exercise Today
The French Case Study
Comparing the U.S. Supreme Court to the UN Human Rights
Committee

CHAPTER5
Enforcing Women's Intemational Human Rights Under Regional
Treaties: The American Convention on Human Rights and the
African Charter on Human and Peoples' Rights
I. Introduction to the American Convention on Human Rights 153
II. A Challenge to Costa Rica's Gender-Based Nationality Law 154
Proposed Amendments to the Naturalization Provisions of the Constitution of
Costa Rica 154
NOTE 163
Judicial Standards for National Origin, Place of Birth, Language
and History Tests, and Sex Classifications
III. Case Study: Costa Rican Nationality Law Revisited in a Costa Rican
Court 163
IV. Other Women's Issues in the American System 164
Elizabeth A. H. Abi-Mershed, The Inter-American Commission on Human
Rights: Prospects for the Inter-American Human Rights System to Protect and
Promote the Human Rights of Women 164
V. Introduction to the African Charter on Human and Peoples' Rights 167
VI. The Relevance to Women of the African Charter on Human and
Peoples' Rights 168
A. Two State Courts: Opposing Views on Women's Land Rights 169
Ephrahim v. Pastory and Kaizilege 169
Venia Magaya v. Makayi Shonhiwa Magaya 177
NOTES 185
The Mtermath
The 1997 Administration of Estates Amendment
The Women's Organizations
B. Different Methods for Obtaining Land in Africa: Marriage; Divorce;
Inheritance; State Allocation; and Purchase 187
Florence Butegwa, Using the African Charter on Human and Peoples'
Rights to Secure Women's Access to Land in Africa 187
NOTES 191
xvl Contents

Using the Mrican Charter

CEDAW, the ICCPR, the ICESCR, and Access to Land
C. The Mrican Commission, the Mrican Special Rapporteur, and the
Mrican Protocol on the Rights of Women-Hope for the Future? 191
Julia Harrington, The African Commission on Human and Peoples'
Rights 191
NOTE 196
Protocol to the African Charter on Human and Peoples'
Rights on the Rights of Women in Mrica

CHAPTER6
Enforcing Women's International Human Rights Under Regional
Treaties: The [European] Convention for the Protection of Human
Rights and Fundamental Freedoms
I. Introduction to the European Convention 198
European Court of Human Rights, The Court 198
ll. Using the European Convention 202
A. A Challenge to Gender-Based Immigration Rights in the
United Kingdom 203
Abdulaziz, Cabales and Balkandali v. United Kingdom 203
NOTE 210
The Court Test
B. A Challenge to the Irish Court System: Family Law, Domestic
Violence, and the Right of Access to Court; The State's Positive
Obligation to Ensure Respect for Private or Family Life 210
Airey v. Ireland 210
NOTES 219
Questions
Ireland's Divorce Law.
C. A Challenge to a German Province's Gender-Based Service-or-Tax
Requirement 219
Schmidt v. Germany 219
NOTE 225
The Court's Logic
D. What's in a Name? 225
1. A Challenge to a Gender-Based Swiss Law on Marital Names 225
Burghartz v. Switzerland 225
NOTES 232
A Changed Test?
The Different Conventions
Europe Slowly Advances Toward Equal Rights for All
Switzerland
Names
 Contents xvii

2. An American Father's Attempt to Require Gender-Based

Naming Rules 233
Gubemat v. Deremer 233
NOTE 243
The Sad Postscript to Gubemat v. Deremer

CHAPTER 7
Economic Empowerment and Employment Discrimination:
Europe and the United States Compared
I. Women's Economic Empowerment 244
II. The European System 245
A. The European Communities and the European Union: An Introduction 245
1. History and Institutions 245
2. The Equal Treatment Directive 247
B. Men and Childbirth-Banning Men from Midwifery Jobs 247
Commission of the European Communities v. United Kingdom 247
Opinion of Mrs. Advocate General Rozes, Commission of the
European Communities v. United Kingdom 250
NOTES 252
Privacy and Class
The Reverse-Sex Hypothetical
The Government's Purpose
Should Privacy Justify Employment Discrimination?
A Gender-Neutral Solution?
c. Women and Guns-Banning Women from Jobs Using Guns 252
johnston v. Chief Constable 252
NOTES 261
Nature or Context in Article 2 (2)
The Article 2(3) Test
Women with Guns
Proportionality
Sylvia Paisley, Arms and the Man? johnston v. Chief Constable of the
Royal Ulster Constabulary 261
Federal Republic of Germany (Bundesrepublik Deutschland) v. Kreil 263
NOTES 267
A Change in the Court's Position?
Women in Combat
D. The French Crime of Employing Women for Paid Night Work 268
Public Ministry v. Stoeckel 268
Opinion of the Advocate General, Public Ministry v. Stoeckel 271
NOTES 273
The Women Workers' Majority Vote
xvlll Contents

Pregnant Women's Night Work

France Changes Its Law
III. The United States System 274
A. Introduction 27 4
Introduction to Title VII of the 1964 Civil Rights Act, in Babcock et al.,
Sex Discrimination and the Law 274
The BFOQ Defense: Banning One Sex asJustifiable Facial Discrimination?
in Babcock et al., Sex Discrimination and the Law 276
B. The BFOQ and California's Ban on Women Working More Than
Ten Hours per Day for Pay or Lifting More Than 25 to 50 Pounds
b~ m
Rosenfeld v. Southern Pacific Co. 277
NOTES 281
The Rosenfeld Test and the Weeks Test
The BFOQ Compared to Article 2 (2) of the Equal Treatment
Directive
Applying the Rosenfeld Test to the johnston Case
Title VII and ''Protective" Labor Legislation, in Babcock et al., Sex
Discrimination and the Law 281

CHAPTERS
The Special Treatment Versus Equal Treatment Debate
I. The International Labour Organization 285
A. Introduction 285
B. The ILO and Special Protection for Women Workers 286
Commission of the European Communities, Protective Legislation for
Women in the Member States of the European Community 286
P89 Protocol of 1990 to the Night Work (Women) Convention (Revised),
1948 292
C171 Night Work Convention, 1990 293
Anne Trebilcock, ILO Conventions and Women Workers 295
NOTE 297
Countries Faithful to C89
C. Case Study: Night Work in Suribia 297
II. Special Treatment Versus Equal Treatment in the Context of
Childbirth and Childcare 299
A. The United States Debate 299
Susan Deller Ross, Legal Aspects of Parental Leave: At the Crossroads 299
The Family and Medical Leave Act of 1993 and Its Effect, in Babcock et
al., Sex Discrimination and the Law 303
The Philosophical Split [Between Equal Treatment and Special Treatment
Theorists], in Babcock et al., Sex Discrimination and the Law 306
Nevada Department of Human Resources v. Hibbs 308
 Contents xlx

B. The European Court of Justice Analyzes the Problem of Pregnancy

and Maternity: The Equal Treatment Directive and Its Loopholes
Revisited 314
l. Italy's Female-Only Paid Adoptive Leave 314
Commission of the European Communities v. Italian Republic 314
2. Germany's Female-Only Paid Parental Care Leave (for Infants
Aged 3 to 6 Months) 316
Hofmann v. Barmer Ersatzkasse 316
3. France's Special Breaks for Working Mothers 321
Commission of the European Communities v. France 321
NOTES 324
The Effect of the 2002 Amendment on the ECJ Decisions
A Side Glance at U.S. Law
4. Case Study: Poland's Special Protection for Mothers 324

CHAPTER9
CEDAW in Practice
I. Egypt as Case Study: CEDAW's Effectiveness in Addressing the
Subordination of Women in Marriage 326
A. Women's Human Rights in Egypt: An Overview 326
U.S. Department of State, Bureau of Democracy, Human Rights,
and Labor, Country Reports on Human Rights Practices for 2006:
Egypt 326
NOTES 328
U.S. State Department Human Rights Reports
Progress Since 1993?
B. Egypt's Personal Status Laws: Marriage, Polygamy, and Divorce 329
Dawoud Sudqi El Alami & Doreen Hinchcliffe, Islamic Marriage and
Divorce Laws of the Arab World 329
Egypt Law No. 100 amending certain clauses in the Law of personal
status, 1 July 1985, Annual Review of Population Law (Reed
Boland &Jan Stepan eds.) 330
Dawoud Sudqi El Alami, The Marriage Contract in Islamic Law in the
Shari'ah and Personal Status Laws ofEgypt and Morocco 331
NOTES 333
The First Wife's Concerns
The Evolution of Egyptian Law Concerning Polygamy
C. CEDAW Reporting Process and Issuance of General Recommendations 334
Committee on the Elimination of Discrimination Against Women,
Ways and Means of Expediting the Work of the Committee: Overview of
the Working Methods of the Committee 334
D. Egypt's 1984 Dialogue with the CEDAW Committee Regarding
Its Personal Status and Nationality Laws 336
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j-4 The History of the Inquisition. that may be made to this

Office, did, in the Year of our Lord 1569. publifh a molt fevere Bull
againft all who mould hurt the State, Effecls and Perfonsof the
facred Office of the Inquifnion of heretical Pravity, which it is well
worth while to give here entire. PIUS, Bijhop, Servant of the
Servants of God, for the perpetual Remembrance of the Thing. I Five
are poffc fifed with a daily Care of protesting all other Minifiers of
the Church, which we have received into our Care and Patronage
from the Lord ; how much more necejfary is it that we fhould be
careful, that they who are employed in the f acred Office of the
Inqiiifition of heretical Pravity, may remain free from all Dangers,
under the Protection of the inviolable Authority of this See, and 'that
all Offices for the Exaltation of the Catholick Faith may be difcharged
? Since therefore the Violence of fuch ungodly Perfons grows every
Day Jlronger, who by all evil Arts endeavour to fubvert the aforefaid
Office, and to dijlurb the Minifiers of it in the Difcharge of their Duty,
we are driven by Necejfity more fever ely to curb this their wicked
and ungodly Infolence. We therefore ordain by this general
Confiitution, with the Advice of our Brethren, that whofoever,
whether a private Perfon, or whole City, or People, or Lord, Earl,
Marquis, Duke, or any other ?nore illufirious Perfon, JJoall kill,
wound, drive away, or terrify any one of the Inquifitors, Advocates,
Procurators, Notaries, or other Minifiers of the aforefaid Ojjice, or of
the Bifhops who execute this Office in their Diocefe or Province, or
the Accujer, Denouncer, or Witnefs, at any time produced, or called
out in a Caufe of the Faith ; and whofoever (hall ajfault, invade,
burn, or plunder the Churches, Houfies, or other 'Things, whether
publick or private, of the Office or its Minifiers ; or whofoever /hall
bum, take azvay, or defiroy the Books, Letters, Authorities, Copies,
Regifiers, Protocols, Draughts, Writings, or other Infiruments,
whether publick or private, wherefoever they are placed-, or
whofoever fijall carry them away from the Fire, or plunder, or by any
other Method ; or who Jhall beprejent, though unarmed, at fuch
Fire, Ajfault, or Plunder, with a Defign tofeize, burn, or conceal them
; or who fh all prohibit fuch Effecls and Perfons to be preferved and
defended ; or whofoever fh all break open any J ay I, or other Place
of Cufiody, whether publick or private, ; or /hall take out and caufe
to efcape any Prifoner ; or Jhall forbid any one to be apprehended,
or if apprehended, Jhall refcue, receive, or conceal him, or Jhall fur
nifh him with an Opportunity of efc aping, or Jhall com?nand it, or
who Jhall make any AJfembly or Concourfe, or for thefe Ends fijall
give any Perfons his A jfiftance, or Jhall knowingly otherwife grant
them Help, Counfel or Favour, publickly or privately in any of the
aforefaid, even though no Perfon Jhoidd be killed, no one wounded,
no one delivered, ejeape, or refcued, nothingforced, nothing broken
open, burnt or plundered, altho* no Damage Jhould actually follow
-, he fijall neverthclefs by Authority of this prefent Canon be put
under Anai hema, become giiilty of High Treafon, and be deprived of
Dominion, Dignity, Honour, Fee, and every other temporal and
perpetual Benefice whatfoever, and left to the Pleafure of thefecular
Judge, who Jhall infiicl on him the [elffa?ne Punijhments, which are
by the lawful
 The History of the Inquisition. lawful Confii tut ions
ordained againft condemned Perfons, and fh all have all his Goods
and Effects confifcated, as the Canonical Sanctions have ordered
againji condemned Hereticks ; his Children fhall be liable to their
Fathers Infamy, and incapable of all Inheritance Succeffion, Gift,
Legacy what fo ever, whether from Relations or Strangers, nor ever
be advanced to any Honours whatfoever. Nor fhall any Perfon be
able to purge himfelf, or to propofe or carry any Caufe, who fhall
have committed fo heinous a Crime out of Contempt or Hatred of
this Office, unlefs he can make the contrary to appear by very
evident Proofs, The fame alfo that we have ordained of the
aforefaid, and their Children, we declare fhall alfo take place with
refpecl to all the Clergy, and Presbyters, Seculars and Regulars of all
Orders, even tho1 exempt ; to all who have the Epifcopal, or any
higher Dignity, or whatfoever Privileges they may enjoy ; fo that
they, by Authority of thefe Prefents, Jloallbe deprived of all their
Ecclefiajlical Benefices and Offices, degraded after the Manner of
Hereticks, by the Ecclefiajlical Judge delivered over to the fecular
Power, and fubjetled, as though they were lay Perfons, to the
aforefaid Punifloments. However, we referve to our fives and our
Succeffors, the Caufe s belonging to the Popes, that when the
Matter is enquired into, and related to them, we may proceed
againft them to Depofition and other the beforenamed Penalties, as
the Heinoufnefs of the Crime Jlo all require. And whofoever fhall
attempt to ask Pardon, or otherwise to intercede for fuch Perfons, let
them know they (hall actually incur the fame Penalties, which by the
Jacred Conftilutions are denounced againft the Favourers of
Hereticks. But if any one who is conficus or acceffary to fuch Crimes,
fhall, through a Regard to Religion, or moved with Repentance,
difcover the Matter, before it is otherwife known, he fhall be freed
from Punifhment, But 'tis our Dejire, that this Method of granting all
Abfolutions whatsoever from the aforefaid Crimes, as alfo of Reft
orations and Reftitutions to Reputation and Honour, Jhall be
henceforth obferved, viz. that cur Succeffors fhall grant none of
them till fix Months at Icaft after their Advancement to this fupream
Dignity, nor without Petitions exprefsly made and verified to the
fupream Office of the Inquifition ejlaUifloed here. Decreeing thai all
and every fuch Abfolutions, Reflorations and Reftitutions, which ff j
all henceforward be granted to Petitions not thus verified and
exprefs, ftjallbe of no manner of Advantage to any one ; and that
they ought not to derogate in any Part from thefe Prefents, unlefs
the whole I 'enor of them be infer ted to a Word, and fuch Grace be
granted from the certain Knowledge of the Roman Pontiff, and
figned with his own Hand; and if it Jhould happen that for any
Reafon they be derogated from, fuch Derogations Jhall be of no
Strength and Validity whatfoever. We there» fore command all and
fingular the Patriarchs, Primates, Arch-Bifhops and Bijhops, and
other Prelates of Churches conftituted throughout the whole World,
that by ihcmfelves, or another, or others, they procure thefe prefent
Letters, or Copies of them, to befolemnly publijhed every one in their
Provinces, Cities, Diocefes, and Pjqce's, ' and as far as they are able
to be firmly obferved, by refraining all Contradictors whatfoever by
Ecclefiajlical Cenfures and Penalties without any Appeal, and by
encrca again and again fuch Cenfures and Penalties, and by calling
in, if Need be, the fiftance of the fecular Arm,. All Conftitutions and
Ordinations Apoftolick, and all other Things whatfoever to the
contrary notwithftanding. 'lis alfo our Will, that Copies of theje
Prefents fhall be printed and publijhedr and figned with the Hand of
a publick 55
 56 The History of the Inquisition. publick Notary, and with
the Seal of every Ecclefiajlical Court or Prelate, and that they /hall
every where have the fame Authority, as thefe Prefents would, if
they were exhibited and fhewn. Moreover, we conjure all Princes of
this World, to whom the Power of the fecular Sword is granted for
the Punifhment of evil Men, by that Faith which they have promifed
to defend, fo to inter pofe and act their Parts, either by granting
AJfiftance to the aforefaid Minifters, or by punifhing the Crimes after
the Sentence of the Church, that by their Help the Minifters of fo
great an Office, may happily execute their Tru/l, to the Glory of the
eternal God, and the Encreafe of Religion, whereby they will receive
a moft attiple Reward from God, in the Participation of eternal
Bkffednefs, which he hath prepared for the Defenders of the
aforefaid Faith. Let it therefore be lawful for no Man to infringe, or
rafhly dare to contradicl this Page of our Santlion, Legation, Statute,
Decree, Command, Obteflation and Will. But if any one fi all prefume
thus to do, let him know that he fhall incur the Indignation of
Almighty God, and of his blejfed Apoftles Peter and Paul. Given at St.
Peter'; in Rome, in the Tear of the Incarnation of our Lord,
ClDICLXIX. Ap. i . and Fourth Tear of our Pontificate. p. i. f.13.
According to the Conftitution of this Bull, very grievous Punifhments
are S- H- often inflicted on thofe who violate it. Carena relates from
Farinacius, that a certain Prifoner in the holy Office was hanged for
killing his Keeper, in order to make his Efcape. He adds, That at
Cremona, An. 1614. a certain Jew was hanged for killing another
Jew who had depofed againfl him in the holy Office. And not only
thus, but if the Wound is not mortal, but flight, he fays that he
hathfeenfuch Offenders fometimes condemned for ever to the
Gallies, or at leait for ten Years. This was executed upon a certain
Perfon at Cremona, who had caned a Witnefs for depofing againft
his Brother in the holy Office. His Sentence was publickly read to him
in the great Epifcopal Hall at Cremona, Carena himfelf being prefent.
The fame Carena gives us a Cafe, by which it will appear, that
fometimes thofe who terrify Witneffes, but yet don't obtain their
End, have been difmiffed with a fevere Reprimand, and being put in
mind of the before-mentioned Bull. A certain Sergeant of the holy
Office had a Meffage from the Inquifitor to deliver to a certain
Countryman's Wife: The Woman not being at home, the Sergeant
would leave it with her Husband, upon which the Countryman gave
him feveral hard Names, and follow'd him with Weapons, crying out,
Li fcirro becco torna in dietro a tor il tuo precetto. The Pope
confented that the Caufe fhould be tried before him, July 15 1 62 1.
and the Sentence approved was, that the faid Countryman had
incurred the Penalty of this Conftitution, and that he was to be
condemned to the Gallies for five Years -, with this Addition, That
from the Goodnefs of the Pope he fhould be heard, if he defired the
Grace of Commutation, upon Confideration of the Plainnefs of the
Man, and his conjugal Affe&ion. However, Carena adds a Caution,
that from thefe Inftances 'tis not lawful for the Inquifitors and
Minifters of the holy Office, to make for themfelves a general Rule,
viz. that fuch who terrify the Witneffes ought to be punifhed,
 The History of the Inquisition. 57 punifhed, as above, and
after the fame Manner as thofe who wound them ; for this is not left
to the Pleafure of the Inquifitors or Ordinaries by the Matter of this
Bull, but to the Cardinals, the fupream Inquifitors, to whom it
belongs to declare, whether Criminals have incurred the Penalties of
this Con* ftitution, or not. He gives us another Inftance that
happened at Cremona, An. 1592. A certain Perfon had accufed all
the Witnefles examined againft him in the holy Office, and had
caufed them to be imprifoned by the fecular Judge for fundry Crimes
and Damages which they and their Cattle had occafioned in his
Grounds. The major Part of the Congregation at Cremona thought,
that although the Acculation could not be called formally that
terrifying of which the Bull fpeaks, yet inafmuch as it appeared
flanderous and deceitful, the Criminal fhould be obliged to free the
imprifoned Witnefles from Jayl at his own Expence, and pay them,
when delivered, all their Charges. This takes place, not only when
any Perfon is accufed as an Heretick, §, 17. '« but in all and every
Caufe whatfoever belonging to the holy Office ; be" caufe every
Caufe belonging to this Tribunal, is properly faid to be a Caufe " of
the Faith, and to belong to it, and to infer fome Mark of the Faith, "
either directly or indirectly. And in all Caufes of this holy Office there
is " the fame Reafon for maintaining the Liberty of this Tribunal.
Thus in c' the Year 1635. a certain Neopolit an Soldier had refcued
from the Sbirri a '* certain Blafphemer, taken up in the Name of the
holy Office, for which " he was condemned by Order of the fupream
Tribunal of the City to all " the Penalties of this Conftitution. Altho'
afterwards, through the Fa" vour of the faid fupream Tribunal, the
Punifhment of Death was exchanged " for that of the Gallies for ten
Years. And this was publickly executed at " Cremona, in the Hall of
the holy Office.'* Yea, they extend this Affair fometimes fo far, that
all manner of Offences committed againfl any one that belongs to
the Inquifitors, though they have no Relation to the Faith, are
punifhed in the fame Manner, as though the Office of the Inquifition
had been hindered by them, or the Inquifitor himfelf had received
fome grievous Injury. Reginald Gonfalvius gives us a re-^ i9Ij
markable Inftance of this which happened in the former Age at
Seville. The Bifhop of Terragone, chief Inquifitor at Seville, went one
Summer for his Diverfion to fome pleafant Gardens fituate by the
Sea Side, with all his Inquifitory Family, and walked out, according to
his Cuftom, with his Epifcopal Attendance. A Child of the Gardener,
two or three Years old at mod, accidentally fat playing upon the Side
of a Pond in the Garden, where my Lord Bifhop was taking his
Pleafure. One of the Boys that attended his Lordfhip, fnatch'd out of
the Hand of the Gardener's Child a Reed, with which he was playing,
and made him cry. The Gardener hearing his Child, comes to the
Place, and when he found out the Occafion of his crymg-> was
angry, and bad the Inquifitor's Servant reftore the Reed to him. And
upon his Refufal, and infolently contemning the Countryman, lie
matched it away, and as the Boy held it faff, the Gardener flighcly
hurt his Hand Vol. II. I by
 r8 The History of the Inquisition. by the fliarp Hufk of the
Reed, in pulling it from him. The Wound was far from being mortal,
or from endangering the Lofs of any Part, and fo could not deferve a
fevere Punifhment. 'Twas no more than a Scratch of the Skin, a mere
childilh Wound, as one may imagine by the Caufe of it. However, the
Inquifitor's Boy came to his Mailer , who was walking near the Place,
to complain about his Wound, upon which the Inquifitor orders the
Gardener to be taken up, and thrown into the Inquifitory Jayl, and
kept him there for nine Months in very heavy Irons, by which he
received fuch Damage in his Circumftances, which were at beft but
mean, as the poor Man could not eafily recover •, his Children and
Wife, in the mean while, being ready to perifh for Hunger. And all
becaufe he did not pay Deference enough to the Inquifitor's Boy, as
a Member of the holy Tribunal. At nine Months End they difmifled
him from Jayl, and would have perfuaded him, that they dealt much
more mercifully with him, than his Crime deferved. CHAP. XL Of
Ferfons fufpeBed of Heresy. DireEt A Lthough, in other Cafes, *tis
ufual to diflinguifh between a Sufpicion part. i. u\. and a
Prefumption, a Sufpicion being no other than a Man's Opinion ^a.
55, concerning a Crime, feveral of which Sufpicions muft concur to
form a Pre.56. fumption of it, yet in the Caufe of Herefy they are-
taken for the fame. A Prefumption or Sufpicion therefore in this
Affair is, a probable Guefs of a doubtful Matter, proceeding from the
Nature of the Thing, or the CircumSimanc. ftances of Affairs or
Perfons. Prefumptions arife from a Perfon's Country t. 50. §.8, and
Parents ; but theie are too general. Others arife from his Education,
&c. §. 1 7- and the Manners of thofe with whom he converfes. This
is the Reafon that the Inquifitors, in their firft Examinations, fo
diligently afk the Criminals of what Nation, Country, Family and
Kindred they are, amongft whom they have been educated, who
were their Mafters, Inftructors, Companions and Friends. For thefe
Things, and a thoufand other fuch are ufually confidered in doubtful
Cafes, that from hence they may draw more probable Proofs, They
alfo confider the Sex. A Man may more eafily be prefumed guilty of
Robbery. A Woman of Witchcraft. And farther, they confider the.
Age, Fortune, Difference of Condition, Nature of Mind, and
Inclinations. In the Caufe of Herefy Sufpicion is threefold ; Light,
Vehement and Violent : A light Sufpicion is that which arifes from the
external Signs of Actions and Words, by which fuch a Guefs may be
made, as may imply, not indeed frequently, but feldom, and by
Accident, that he who fays or does fuch Things is an Heretick, This is
inferred by a fmall Confequence. As
 The History of the Inquisition. 5 As if any one fhould argue
thus : He is found to frequent private Conventicles, and in his Life
and Manners departs from the common Converfation of the Faithful ;
therefore he is an Heretick, becaufe Hereticks themfelves are found
to do fuch Things frequently. Such are lightly fufpecled of Herefy.
But the Inquifitors teach, that fuch Perfons ought not eafily to be
proceeded againft in a Caufe of fuch Importance. However,
fometimes the very fpeaking to Hereticks hath not efcaped without
Punifhmenr. Thus Bzovius relates, An. 1234. §.14. Acurfius, the Son
of Aldobrandinus, a Citizen of Florence, incurred the Canon, becaufe,
whilft he dwelt in France, he converfed with Hereticks. For 'twas,
they thought, a Crime for any one fo much as to falute them,
contrary to the Apoftolick Inflitutions. But as he was afterwards
abfolved by Raymond Peniafortius, Penitentiary of the Apoftolick
See, Pope Gregory enjoin'd the Prior, and Friar Robert, and the reft
of the Predicant Friars in Paris, that they mould not any ways moleft
him, or furTer or command him to be molefted. A vehement
Sufpicion, which is alfo called Juris, arifes from fuch external Words
and Deeds, which, when known, infer an Argument frequently
conclufive i and becaufe, as to moft, he who doth or fays fuch
Things is an Heretick ; and is ufually taken for full Proof, if there be
nothing proved to the contrary. Such are thofe, who being called to
anfwer concerning the Faith, do not appear in the Time afligned
them *, fuch who knowingly hinder the Office of the Inquifition -,
who knowingly give their Counfel and Afiiftance and Favour to fuch
Hinderers ; who inftrucl Hereticks when cited to conceal the Truth,
and fpeak falfely j who are any ways excommunicated upon Account
of the Faith ; who knowingly favour, defend, and receive Hereticks ;
who are infamous for Herefy, upon account of their Familiarity with
fuch whom they know to be Hereticks ; who knowingly accompany,
vifit and receive Hereticks. He alfo who gives a Kifs to an Heretick is
vehemently to be fufpected of Herefy, according to the Judgment of
the Synod ofTerragone, according to this Decree: It is likewife
enquired: Whether he who gave a Kifs to one of the Inzabbatati, or
an Heretick, when he believed and knew him to be fuch aPerfon, or
prayed with him, or concealed him, or heard preaching or reading
from him, and believed him to be a good Man, is to be judged of as
a Believer of his Errors ? And we fay that he is not. Ho-wever, let
fuch an one be condemned as a Favourer, or Concealer, and
Benefaclor, and vehemently fuf peeled to believe his Errors-, unlefs
he fhould be fo learned or difcreet, as not to be able to pretend
Ignorance., And this we think proper to leave to the Pleafure of the
prudent Judge. Befides thefe, fuch alfo are vehemently fufpecled,
who are judicially convicted of Perjury, or a Lye, in a Caufe of the
Faith, and who have often done or laid any thing againft the Faith,
and the like, for all the particular Cafes cannot be enumerated. They
who do fuch Things are faid to be vehemently fufpected. Amongft
thefe are reckoned alfo, fuch who knowingly give
EcclefiafticalD.V^.5.. Burial to Hereticks, their Believers, Receivers,
Defenders, and Favourers, i. e. ?"• 4°« who bury them in the
Church-yard, after a Chriftian Manner, with Pfalms"""* 8^ and
Prayers* For he who knowingly buries thofe, whom the Church
perfeI 2 cutes
 6o The History of the Inquisition. cutes and condemns as
Hereticks, or fufpected of Herefy, doth, whatever he may think in his
Mind, feem by Fact to declare and profefs, either that the Church
ought not to deprive fuch Perfons of Burial, or that it is lawful to
pray for Hereticks and their Believers, &c. becaufe he buries them
after the Manner of Catholicks. But whether this Sufpicion be only
light, or vehement, skilful Men muft judge of according to the
Quality of the Perfons. The Punifhment of fuch is Excommunication,
from which they cannot be abfolved without proper Satisfaction,
whether it be Abjuration or Canonical Purgation. Nor can they merit
the Benefit of Abfolution, unlefs they unbury them with their own
Hands, and throw out the Bodies of fuch condemned Perfons from
their Graves. Cap. ^uicunq; in princ. de haeret. lib. 6. The fame
Sufpicion arifes, if any one celebrates the Obfequies of fuch a Perfon
after the Manner of Catholicks, when fuch Heretick or fufpected
Perfon dies any where elfe, at Geneva for Inftance, or any other
Place, where Men live and believe heretically. And finally, if any one
fteals away and prefer ves the Ames, Bones, Garments or the like, of
burned Hereticks. But if anyone finds an Heretick, or a Believer or
Favourer of Hereticks, or any fuch Perfon dead, in thofe Places in
which he cannot eafily accufe them before the lawful Judges, then
he may inter them, but not in holy Ground, that fo their unburied
Bodies may not corrupt the Air ; nor fhall he hereby deferve any
Punifhment, or contract any Sufpicion of Herefy. He muft however
report the Affair to the Judges of the Faith, as foon as he can, that
they may appoint what is needful to be done. Tit. 49. There is alfo
another Kind of fufpected Perfons, viz. thofe who have faid f. I? 3.
any Thing fcandalous or fufpected, as Simancas teaches us. 97/. 49.
*4 No one " ought to preach, who is not examined and approved.
But if any Preacher " thus examined and approved, fhall have faid
any Thing fcandalous or €t fufpected, the Inquifitors muft fummon
him, and immediately compel him, " either publickly to retract it, or
to explain it to the People in a pious and " catholick Senfe ; and he is
moreover to be corrected and admonifhed, not " to dare to preach
fuch Things for the future. But if he preaches any He" refy, he muft
be punifhed according to his Crime, and deprived of the Ofpart. a. ,c
fice of Preaching. J. Royas explains this more fully. Whofoever fhall
fifert. 53. " confefs, or be convicted of Propofitions rafh, injurious,
fcandalous, or the " like, he muft be punifhed in an extraordinary
Manner, and forced to ab" jure, according to the Nature of the
Sufpicion, whether it be light or vehe*' ment. 4 InJtruff.Tolet. cap. 8.
Inftrutt. Madril, An. 1561. c. 53. and 65. " For thefe and the like
Crimes, which are not direct Herefies, Criminals " are feldom
detained in the fecret Prifons of the holy Office, but in Mona" fteries
or private Places. 4 Inftrutt. Hifpal. c. 4. 3 Injlruft. Pinciana. c. 10. "
This is the Cafe, though the Crime be not fully proved ; but
pecuniary " Punifhments inflicted for fuch Offences, muft be
converted to the Uk of " the holy Office." But left the Popifh Doctors
fhould be eafily rendered fufpected of Herefy, and deprived of their
Office by the Inquifitors, they generally make ufe of a certain
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The History ^/& Inquisition, &i certain Proteftation, that by

this Means they may efcape Cenfure, z*>$iman~ ccis teaches. "
Becaufe 'tis dangerous to difpute about Matters of Faith andr//. 55.
M Religion, even though the Truth be fpoken, therefore learned Men,
wife and §• i« " pious, when they treat of thefe Things, do with
Prudence ufually make a ct folemn Proteftation, that they would not
by any Means deviate from the " Catholick Faith, but in all Things,
and always embrace the Doctrine of " the Univerfal Church, and
willingly fubject themfelvesto her Cenfure. Afcer " this they add a
conditional Revocation, to this Senfe : That if it fhall hap" pen that
they have faid or written any Thing againft the Catholick Faith, "
they do from henceforth retract it, and would have all underftand
that it was " faid or written through Unfkilfulnefs or Imprudence, and
not through Ma" lice or Obftinacy." But lead any one fhould eafily
efcape the Cenfure of the Inquifitor by fuch kind of Protections,
Simancas adds thefe Limications. §. 6. tc That fuch Proteftation,
though repeated a thoufand times, doth not ex-$. &. " cufe, when
any one willingly errs againft the Catholick Faith ; or when " through
Ignorance he errs in thofe Things, which he is explicitely re" quired
to know, unlefs poflibly he is able to prove his Ignorance, or fome "
Caufe of his Error. But it will be of great Advantage to him when he
errs §. 9. cc in thofe Things, which are fo difficult, obfcure and
doubtful, that may " fometimes efcape the moft learned Men.
Becaufefuch an Error is fuppo" fed to arife more from Ignorance
than Malice." Sufpicion alfo arifes, that a Perfon thinks ill of fome
Doctrine or Inftkution,/ur. 3. or Order of the Church, or fome other
Thing concerning which he muft«m-M' believe as the Church
believes, viz. concerning the Power of the Pope, and^" 471Prelates,
the holy Religions of the Monks, the Rites of the Sacraments, and
other Things, if he treat them unworthily, injurioufly and difgracefully
; or if he defiles thefe excommunicatory Libels, which are commonly
called CVdulones, by drawing nafty Figures upon them. Such Perfons
Columna Mar films, Arch-Bifhop of Salerno , in a certain Anfwer
contends, do belong to the holy Office, becaufe, by this Action, they
feem to think wrong of the Power of the Prelates, and to contemn
the Cenfures of the Church, and to feoff at and difgrace the Church
which ufesfuch Cenfures. Farther, if any one per- Lucent. lifts in his
Excommunication for two Years, or for one, he is fufpected of He-
'^f1"/
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fa The History of the Inquisition. fed Truth. It arifes from

external Signs of Actions or Words, by which , may be concluded
effectually, and almoft always, that he who fays or doth thefe Things
is an Heretick. As if heretofore any one mould adore Hereticks, or
reverence them after their Manner •, or receive the Conlblation or
Communion from them, or do the like Things belonging to their
Cuftom. Cap. Filii & Accufatus. Extra, de hasret. lib. 6. Such are laid
to be violently fufpedted. A Perfon lightly fufpected, is enjoined
Canonical Purgation, or even a light Abjuration. In this Cafe however
the Proceeding muft be cautious -, becaufe if any one falls into the
like Sufpicion af.er Abjuration, he muft be more grievoufly punifhed.
Cap. Accufatus. In princip. A Perfon accufed or fufpecled of Herefy,
againjl whom there is arifen great and vehement Sufpicion of this
Crime, if in Judgment he abjures his Herefy, and afterwards falls into
the fame Sufpicion, ought to be looked on as a Relapfe by a certain
Conjlruclion of Law, although before bis Abjuration the Cri?ne of
Herefy hath not been proved. But iffuch Sufpicion fh all be light and
moderate, although on this Account he is to be more grievoufly
punifhed, yet he is not to be punifhed as thofe who relapfe into
Herefy. A Perfon vehemently fufpedted is not an Heretick, nor can he
be punifhed as an Heretick. Extra, de prasfumpt. c liter as. §.
Quocirca. where 'tis exprefs•ly faid, Becaufe for the mere Sufpicion,
though vehement^ we would not have him condemned for fo
grievous a Crime. But he muft be commanded to abjure generally
every Herefy, and efpecially that in which he offended, as a Perfon
vehemently fufpected. And this is no light Punifhment. Becaufe if he
afterwards relapfes either into his former Herefy, or any other, or
afibcrates with thofe whom he knows to be Hereticks, or affords
them fuch Favour as is capable of no Excufe, he incurs the Penalty of
the Relapfed. Cap. Accufatus. where we have thefe Words. But as to
the Perfon who offends in one Sort or Seel of Herefy, or errs in one
Article of Faith or Sacrament of the Church, and afterwards /hall
abjure jimply or generally his Herefy ; if after this he offends by
falling into another Sort or Seel of Herefy, or errs in any other Article
or Sacrament, we will that he fhallbe judged as one relapfed into
Herefy. He alfo, concerning whofe Fall into Herefy before Abjuration,
there hath been, or now is a Certainty, who, after fuch Abjuration,
fhall receive, accompany, vifit, or affociate himfelf with Hereticks, or
Jhall make or fend them Prefents or Gifts, or grant them fuch Favour
as cannot be excufed, even though he doth not adore them, to ufe
your Words, is defervedly to be judged as a Relapfe ; fince 'tis not to
be doubted that thefe Aclions are the Confequence of the for?ner
Error he approved. If he doth not confent immediately to abjure at
the Command of his Judge, he is excommunicated ; and if he
continues under Excommunication for a Year, he muft be condemned
as an Heretick, and delivered over to the fecular Arm ; and may in
the mean while be punifhed with fome leffer Punifhment, at the
Pleafure of his Judge, as particularly with a Fine. Simanc. " But this
only takes Place, when the Criminal is vehemently fufpected, t. 46. «
ancl upon account of his Age, or State of Health, or any other Caufe,
can^' ?6' " not be tortured or purged. In fuch a Cafe he is carried
out in publick, " cloathed
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The History of the Inquisition» \% H cloathed with the

penitential Habit, and is folemnly to abjure, and to for*c feit the
third Part of his Effects, more or lefs, at the Pleafure of the Judcre. "
But thefe Penalties muft be applied to the Expences of the Office of
the
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64, The History of the Inquisition. fufpected, and cited to

anlwer concerning the Faith, doth not appear, he becomes
vehemently fufpected, and is excommunicated. And if he abides
under that Excommunication tor a Year, he is violently fufpected, and
condemned as an Heretlck. D'veft. p, 1. qu. %1> Lucerrt. Inq. in
voce Info mia. tiid. CHAP. XII. Of Perfons defamed for Heresy. w H O
they are that are defamed for Herefy, we are taught by the Council
of Tholoufe. Cap. 16. Such ought to be accounted defamed, who are
cried out againjl by publick Report, or of whofe Defamation among ft
good and grave Perfons there is legal Proof before the Bifhop of the
Place. So that to the perfect Proof of fuch Defamation or Infamy for
Herefy, two good and grave Witneffes fuffice. But if they are vile and
infamous, although they are not to be defpifed on this Account, fo as
to flop proceeding to an Inquifition from what they depofe, yet fuch
Defamation is not fully proved by them. They fay alio, that 'tis not
neceflary that the Witneffes fhould hear this Infamy from the fame
prudent and difcreet Perfons •, but 'tis fufficient, though they hear it
from different. And they give this Reafon for it -, becaufe as they are
only to prove Infamy, 'tis fufficient if the Witneffes agree in and
concerning this Matter. Yea, they teach farther, that 'tis not neceflary
that the Witneffes fhould agree as to the Caufes of their own
Knowledge. So that if the Witneffes fhould fay, they know this
Infamy, becaufe they have heard of it, they are not bound to prove
they have heard it ; nor is it required that one Witnefs mould agree
with the other as to Time and Place, and the Caufes of their
Knowledge. Becaufe the Queflion is not about thefe Things, but only
concerning the Fame and Infamy. So that tho' they appear Angular
in what they fay, their Affertion fhall be abided by. When once this
Infamy is proved by Witneffes, they enquire, whether the Perfon
inquifited can prove himfelf to be of good Reputation, and thus put a
Stop to the Inquifition concerning the Truth of the Crime, and take
away the Proof of h.s bad Character. Here the Popiih Doctors greatly
differ. Some fay, that the Proof concerning his good Character, ought
not to be admitted, becaufe it feems to be elufive. For if an hundred
Perfons fhould fay fuch an one hath a bad Character, and a thoufand
that he is of a good one, the Proof of the good one doth not
difcharge him, becaufe he frill remains infamous in the Account of
others, and the Inquifition is to be made in regard of them. Others
fay, that the Report of the greateft Number is to be itood to. Others,
that the Proof is to be admitted, but whether it affects the contrary
Proof depends upon confidering wherein the publick Report agrees,
what is the Quality of the Witneffes and Perfons, according to which
the Judge is to
 The History of the Inquisition. 65 to determine which of the
Proofs is valid. Others fay, that either the Witneffes on both Sides
depofe concerning the Perfon's Character, as to the fame Place and
Time, and then the moft credible Witneffes are to be believed ; or
the Witneffes on both Sides are equally credible, and then the
greateft Number mull determine •, or the Number of them is equal,
and then the moft probable Proof is to take Place, and that Proof is
to be accounted the moft probable, which adds Weight to the Caufe
by any like Prelum ption. The Punifhment of one thus defamed is
Canonical Purgation, and fome other ordinary Penalty. Cap.
Excommunicamus xtaqy Extra, de hasret. §. Ad~ jicimus, when the
Defamat/'on is fully proved. But if it is not fully proved, the Perfon
cannot be compelled to a Canonical Purgation, unlefs there be fuller
Proof, and other Signs and Tokens concur with the Defamation. They
fay 'tis the fame, if the Infamy arifes from Rivals and Enemies. This
is fufficient to give a Beginning to the Inquifition, but not to enjoin
Canonical Purgation, unlefs what they fay be probable. Sometimes
alfo Perfons are defamed for Herefy upon this Account, that they
have lived in Places defamed or fufpected of Herefy, and from
thence have come amongft the Papifts. In this Cafe the Synod of
Saltzbourg, held two Ages ago, hath decreed : The Parijh Priejls
ought alfo to obferve thofe who come from the Countries ofConftit.
6. Hereticks, or Places fufpdtled of Herefy, and to confeder the
Words and Deeds of allcaP- *• fuch, and to take Cognizance of their
Life, Behaviour and Manners ; and if there be any Ground of
Sufpicion, to acquaint the Ordinary with it. Finally, the Council
ofTholoufe hath provided, That the Prelates, Barons, and all other
Lords Cap. 16. of Countries, (hall not have in their Families or
Counfel, Perfons defamed or fufpected of Herefy, in thefe Words :
Neither let them prefume to have or retain in their Family or Counfel,
fuch Perfons, viz. Hereticks, or Believers of Hereticks, or any other
defamed of Herefy, or whom they believe to be fufpetled concerning
it. This they explain, not only of Perfons condemned, and judicially
and legally proved to be infamous and fufpected, but of fuch Perfons
before they have received Sentence. CHAP. XIII. Of Perfons
Relapfed. A Perfon is faid to be relapfed, upon a double Account,
either into Here- 2>;r#£. fy, or the favouring of Herefy. One relapfed
into Herefy is he, who/>.2.?«.58. after he hath been convicted
either by the Evidence of the Fact, or his own ConfefTion, or by a
legal Production of Witneffes, hath publickly abjured his Herefy, and
is convicted of falling into it again. So that though a Perfon who falls
into the fame Error again and again, without any folemn PeVo l. II. K
nance
 6£ The History of the Inquisition. nance intervening, or
making an Abjuration or Canonical Purgation, maybe truly faid to be
a Relapfe, yet he cannot be punifh'd as fuch, To as to be delivered
over to the fecular Court, iffobe he will repent. Of thefe relapCarena,
fed Perfons there are four Sorts. The firft, when any one falls into
the lame p. i. 1. 1. jq[erefy he hath abjured. Here the Doctors
difpute, whether or no a Per§.6. w'36'fon wno aDjures as an
Heretick before the Inquifitors Subdelegate, and afterwards falls into
the fame or any other Herefy, is to be accounted as a Relapfe, if
there be no Certainty of the Subdelegation of that Judge before
whom he abjures. However, in the City of Como, a certain Woman,
who had thus abjured, was given over as a Relapfe to the fecular
Arm, and burnt, by the Advice of the whole College of Counfellors in
that City, and of the Bifhop, and of John 'Thomas Odefchalcus, a
Senator. It was determined alfo after Cap. Accu- the fame Manner at
Mantua in a like Cafe. The fecond, when any one falls jr.tus. dc into
an Herefy which he abjured as vehemently fufpe&ed, but not if he
only hk\T * 6 ^a^s aga'n 'nt0 a vehement Sufpicion of Herefy. The
third, when after a Crmvero general Abjuration of Herefy, he fills into
an Herefy different from the par§. ilk quo-ucuhr one he abjured. The
fourth, when after having abjured as an Heretick, que. he
accompanies, vifics, £sV. Hereticks, fends them Prefents, or grants
them Favour. Carena, The Glofs on theaforefaid cited Chapter only
excepts the Cafe of Hunger, p. i. 1. 1. which excufes, provided it be
violent. But this Exception was not allowed by §■ 5- w^-the fupream
Council of the Spanifh Inquifition, in which a certain Perfon was
delivered over to the fecular Arm as a Relapfe, who having been
reconciled as a Moor, returned afterwards to fome of that fort, and
would have excufed himfelf by this Glofs, that he went to them upon
account of Hunger. p.z.ajfert. So that in order to a Man's being
accounted as a Relapfe, J. Royas fays 41. §331. 'tis necelTary, that it
be proved that the Criminal did fall into Herefy, and is now fallen
again into it. The Proof, as to the firft, muft be true or prefumptive,
as to the fecond Legal : He therefore advifes, that the Promoter
Fifcal mould be cautious in accufing the Criminal of his firft Lapfe,
that he may not be obliged only to exhibit the firft Senrence
pronounced againft fuch a Relapfe, but that it may appear by the
Confefiion of the Criminal, and the Inftrument of his Sentence, that
he was fallen into Herefy, and hath abjured. But even then the
Criminal is to be heard, defiring to alledge and 6 „, prove his
Innocence. The fame Royas fays, that in the Inquifition of Valence,
there is an Apoftolick Indult, which provides, that Perfons relapfed, if
Moors, and truly penitent, may be again reconciled to the Inquifitors,
becaufe new
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