THE COMPOSITION AND PROCEDURE OF THE TRIBUNAL
I
The popular fame that the Inquisition has gained is due to the
terror which it aroused in the days of its greatness; its terror
was the result of the thoroughness and efficiency of its methods.
It was efficient, in the first place, because it was the product of
experience. Its characteristics were those that had been _proved_
to be necessary. The ordinary ecclesiastical courts had been found
unsatisfactory for dealing with heresy because their business was too
multifarious; the Inquisition was devoted to the trial of one offence
and one only. The bishops had failed in part because they were not
specially qualified for their task; the inquisitors were trained
specialists.
In the second place, the tribunal was strong in having the support of
the secular authority as well as of the papacy behind it. Thirdly,
it became widespread in western Christendom, so that flight was
a doubtful salvation. It seemed ubiquitous, because the mutual
co-operation between inquisitors of different districts, and indeed
countries, was highly organized. It seemed all-pervading because of its
apparent omniscience, due to the extensiveness of its records and the
thoroughness of its spy system. The victim, in short, was made to feel
his helplessness before a power which seemed as strong and inexorable
as fate.
The Inquisition owed much to the character of its judges. They were, at
any rate, enthusiastic and hard-working. The half-hearted inquisitor
was of rare occurrence. They were often ardent with the fiery and
formidable zeal of fanaticism, believing themselves servants of God
and surrounded by that aureole of sanctity, which gave their court
the name and reputation of the Holy Office. Often, beyond question
they were cruel; but, on the other hand, it is necessary to beware
against accepting the traditional idea of the inquisitor as typical. In
the Middle Ages, when he flourished, the inquisitor was not popularly
regarded as a man destitute of human sympathy, an ogre; he was
regarded, on the contrary, with veneration. Often he was a man of high
intellectual attainments; practically always he must have been educated
and learned much beyond the ordinary; he had studied in school and
university and was a theologian, if not also something of a philosopher
and a lawyer. Often too he was the most upright and honourable of men;
and it is plain that men like Bernard Gui and Nicholas Eymeric had
the highest sense of their responsibilities and the loftiest ideals
for their fulfilment. Bernard Gui gives us a sketch of the ideal
inquisitor. He is a man ardent in the faith; never slothful, yet not
precipitate; never timid, but always cautious; never credulous, but
ever ready to listen; resolute for truth and justice, yet merciful and
compassionate; careful in his sentences that no ground shall be given
for the charge of cruelty or rapacity.[353]
The inquisitor was a much privileged person, enjoying a plenary
indulgence during the whole period of office, and he could only be
excommunicated by the direct authority of the Pope. In every way he was
under the panoply of special papal favour and protection. He had the
right of granting indulgences—this being mainly used to encourage or
reward witnesses and informants against heretics.[354] Privilege was
also extended to all assistants of the Holy Office.
The assistants were numerous, consisting of delegates, often called
vicars, _socii_, familiars, notaries, councillors, prison officials
and simple messengers and other servants. To this list should be added
the ordinary _curés_, whose services might be utilized to publish
citations, make known the sentences of the tribunal, give testimony for
or against their own parishioners.
The delegates were assistants of the inquisitors; to them was generally
entrusted the task of asking preliminary questions and hearing
witnesses, the rôle of a _juge d’instruction_. They thus relieved
the inquisitors of most of the burden of the initial and formal
proceedings; but they were strictly subordinates, their powers being
carefully stated in their commissions, and they were, as a rule,
appointed only for a particular cause and definite period. On the other
hand, they might take the inquisitor’s place in case of his illness or
absence from any other unavoidable cause.
The _socius_ was not, as his name seems to imply, a colleague, but only
a companion, who merely accompanied the inquisitor on his journeyings
in that capacity, and discharged no official functions, save that he
might occasionally give informal advice.
The familiar, a most important and distinctive personage of the
tribunal, might come from any class of society and usually came from
men who lived in the world. A recluse was of no use for the duties the
familiar had to perform. But once having adopted the calling (valued
on account of its ecclesiastical privileges), the familiar became a
member of a quasi-religious brotherhood. His duties were various. A
personal guard for the inquisitor had to be provided. The inquisitors
had the right of arming familiars for this purpose, though the Council
of Vienne of 1311 recommended that the number of familiars should be
kept down to the minimum and that the right of arming them should not
be abused.[355] Familiars also visited prisons, and at _autos-da-fé_
had to accompany the condemned and the penitent, exhorting them to
unfeigned repentance, and encouraging them to submit to the punishments
inflicted upon them. Lastly, and most important, the familiars were
secret agents, and were as a rule remarkably efficient spies.
Another important officer was the notary. He was quite indispensable.
The number of men qualified to fill the post, in days when writing
was not a widely diffused accomplishment, was far from large; and the
position grew to be one held in high esteem and much sought after. The
notary’s main duty was to take down interrogatories and answers, and to
keep the register of them. First of all he would take down rough notes
and afterwards he would make a fair copy on a parchment for permanency.
As the questions were put in the vernacular and the register kept in
Latin, he had to be a translator as well as a clerk. His task was so
heavy that in some cases he was given the help of scriveners; but
every document had to bear his signature. It would be impossible to
exaggerate the significance of this careful recording of evidence in
the work of the Inquisition. All the papers were sedulously kept;
often they were carefully indexed and annotated. In course of time the
registers came to form a wonderful repository of information, which was
of immense assistance to the tribunal.
As an illustration of how the careful preservation of exact and minute
particulars of cases promoted the success of the Holy Office may be
taken the case of an old woman apprehended in 1316. From the records it
was ascertained that the same woman had as far back as 1268 confessed
heresy and been reconciled. This discovery showed that the prisoner was
already a relapsed heretic.[356] The meticulous transcription of some
casual and apparently irrelevant remark made by a witness in one case
might lead to the arrest of an unsuspecting citizen on the charge of
heresy in quite a different part of the world years afterwards.
The councillors or experts—_viri boni_ or _periti_—were usually chosen
from the ranks of the clergy, priests, abbés, bishops—but they might
also be laymen, and were often civil lawyers. Thus, at Pamiers in 1329
we find that out of fifty-one experts twenty are civil lawyers.[357]
The number of experts varied. Fifty is an exceptionally large number;
but twenty or twenty-five quite common.[358] To what extent the
councillors had a practical influence in the inquisitorial process
must remain doubtful. The idea was that they should act as a check on
irresponsible inquisitors, as well as give professional legal opinion
when such was needed; and from the frequent references to the system in
papal bulls it certainly seems true that the popes showed anxiety to
encourage the system of expert assistance as a restraint upon arbitrary
action.
On the other hand, it is by no means clear that the system had much
practical effect, since inquisitors were not bound to accept the advice
tendered, and the number of the _periti_ being so large, the volume
of business transacted usually so great, it is doubtful whether any
serious deliberation with the councillors took place in the majority of
cases. Probably their presence was often purely formal, for the sake
of giving additional solemnity to the condemnation of heretics.[359]
Still, it remains true that a place was provided in the inquisitorial
organization for the experts; that the means of competent legal advice
was forthcoming; that if the inquisitor was a reasonable man he would
no doubt pay due heed to such advice on the purely legal aspect at all
events of his cases, and also that the experts, being often men of
importance, probably did have the power of making their influence tell
upon occasion. The system was at all events a potential safeguard.
Finally, there must be mentioned, among the members of the tribunal,
one of the most important—the bishop. The relations between bishops
and inquisitors, frankly antagonistic in the early days of the
Inquisition, probably always tended to be unfriendly. If the bishop,
for his part, resented the new jurisdiction, which was a rival to his
own, the inquisitor in his own court aspired to be supreme and to
arrogate to himself a superiority over the bishop, which the latter was
not likely to allow. The bishop’s position was not altogether easy.
Required to take cognizance of heresy in his own court, he yet had
also to officiate in the special court where the inquisitor, whatever
his ecclesiastical status and whatever his pretensions, was bound to
be always prime mover in the proceedings. We know that the inquisitors
often acted without the co-operation of the bishop. The relations
between them remained none too clear until they were regulated by the
Council of Vienne. They were to work together and to concur in the
sentence.[360] As a matter of fact, the concurrence of the bishop was
apt to be a mere formality and his position in practice was bound to be
subordinate, the inquisitor being a delegate expressly charged by the
Pope with the duty of trying heretics.
Such being the composition of the Inquisition, what was the extent of
its province? What, technically speaking, was a heretic? According
to Raymond of Peñaforte, he was simply one who denied the faith.
St. Thomas Aquinas maintained that no one was a heretic, unless he
obstinately maintained an error after its erroneousness had been
pointed out to him by an ecclesiastical authority. One teaching,
therefore, was that no one in ignorance could be a heretic.[361] Proof
of previous instruction in the truth had to be forthcoming to show that
a man was a heretic. But a broader interpretation tended to prevail,
and the heretic to be considered as one who, on any grounds whatever,
separated himself from the traditional faith of the Church.[362] The
mere fact of separation did not in itself constitute heresy; but every
schism must end in heresy, because separation argues an error in belief
touching the nature of the Church. Lack of respect for ecclesiastical,
and especially papal, authority suggests denial of the faith.[363] To
assert anything against the Scriptures, to add to them or subtract from
them would be heresy. Certain forms of blasphemy and profanity would
make a man at least suspect of heresy.[364]
Obviously the matter of interpretation gave abundant scope for
casuistry. Bernard Gui’s ‘Practica’ is an illustration of this. There
was an obvious temptation for the inquisitor to discover heresy in all
manner of disguises.[365] Heresy was conceived as a most insidious as
well as a most pernicious enemy, to be ferreted out in all sorts of
strange lurking-places. The indefiniteness of the term—the inquisitor’s
definition is always a catalogue—was as a matter of fact unavoidable,
seeing that the offence consisted, not in an overt act, but in an
intention. It was a crime of the intellect, a matter of the state of
a man’s mind and disposition. Sometimes the heresy might be revealed
in an act, but very often there would be no formal act at all. The
inquisitor must be a searcher of the heart and a prober into the
obscure workings of the mind.[366] It is necessary to add one simpler
but important point. No one could be a heretic unless he had been
baptized, unless he was a member of the Christian Church.[367] The
infidel, the Turk, the Jew, did not come within the Inquisition’s
purview—unless he had at one time received the Christian religion.
By birth or adoption the heretic must have been a Christian: for
the heinousness of his crime consists in its being a repudiation, a
rebellion.
The Inquisition formulated a number of classifications of heretics.
In the first place, they used to distinguish between _affirmative_
and _negative_ heretics. The former was one who deliberately avowed
some opinion contrary to the faith before the tribunal; the latter was
one who either denied being guilty of the incriminating word or act
or else, while acknowledging it, protested that he had no culpable
intention.[368] In the second place, a distinction was drawn between
the _perfected_ heretic and the _imperfect_. The first not only held an
error, but also practised the rites appertaining to it, modelled his
life on its dogma; the latter merely believed the error without being
guilty of the evil practices.
The inquisitors also recognized a class consisting of people who were
not really heretics at all, perfect or imperfect, but merely people who
gave evidence of heretical disposition or of tendencies which might
lead them into heresy. In the fact of its taking cognisance of such a
class lies one of the distinguishing features of the Inquisition.[369]
The tribunal deliberately dealt with, and had a specific treatment for,
those who were merely _suspected_ of crime. Suspicion was classified as
light, vehement or violent. There was no precise definition of what
was meant by each of these; it was generally left to the inquisitor to
decide in each particular case what degree of suspicion existed. It was
most essential to avoid all contact with heretics.[370] A man proved
to have saluted a heretic or listened to his preaching on a single
occasion was regarded as _lightly_ suspect; if he had done so more
than once, he was _vehemently_ suspect; if he had done so frequently,
he was _violently_ suspect.[371] But such an offence as this, even if
often repeated, was not regarded as in itself sufficient evidence of
actual heresy. It only made the offender a marked man. In such cases
the Inquisition did not dismiss the accused as not guilty; it would not
absolutely dismiss a case, unless satisfied that there was no proof
whatever. This was due to the intangible nature of an offence which
consisted in an intention.
The consequence was that the Inquisition, in order to be on the safe
side, virtually created a minor offence of allowing oneself to be
suspected of heresy. For every good Catholic must realize that any
connection with heresy, however remote, is contamination and therefore
take the most elaborate precautions to avoid all contact. To become an
object of suspicion, therefore, meant either that the suspicion was
after all well-founded (on the principle that there is no smoke without
fire), or that the conduct which led to suspicion was inadvertent. Was
it, then, unreasonable to require that the suspect should make a formal
abjuration, to prove that in fact he had no sympathy whatever with
heresy, that the suspicion was unfounded? Nor, surely, was it unjust
to record such cases of suspicion in view of the possibility that the
suspect might at some later date come up once more before the tribunal,
when naturally his former offence would be legitimate evidence against
him? Such is the line of argument in justification of the penalizing of
the suspected, as well as the convicted. The suspect is indeed guilty,
not of the major offence of actual heresy, but of a minor offence of
misdemeanour, improper or at least imprudent behaviour, unbecoming to
a good Catholic—an offence legitimately dealt with by the tribunal
concerned with heresy.
Another class of offenders were fautors or defenders of heretics.
To place any obstruction in the way of the inquisitors was an act
of fautorship. A lord who neglected to pursue heretics out of his
lands; anyone giving ecclesiastical burial to a heretic; one who
in conversation excused a heretic or conferred any sort of favour,
however slight, upon one—all these were fautors. For a doctor to attend
a heretic patient, a lawyer to plead a heretic client’s case, was
exceedingly dangerous, unless they could prove beyond all doubt that
they did so in ignorance. The simplest deed of common humanity done to
a heretic was in the view of the Church a sin.[372] Certain crimes were
triable by the Inquisition, not for themselves, but because they were
indicative of false doctrine. Thus a usurer might be tried and punished
by the Inquisition, not because he was a sinner, but because he showed
that he did not regard himself as such. Similarly, a bigamist might be
tried by the Inquisition, not because bigamy was an immoral thing—if
he could prove that he acted under the stress of simple unreflecting
passion the Inquisition would dismiss the case as not coming under its
purview—but because his act evinced erroneous belief regarding the
sacrament of marriage.[373]
It was the same with a number of other moral offences. Adultery did
not in itself come under the cognizance of the tribunal; but if the
adulterer maintained that his transgression was not a sin, it did.
There is, for instance, the case of a licentious priest living in
concubinage being punished by the Inquisition, because he asserted
that he was purified of his ill-living by the simple act of putting on
his vestments. In a word, an error in morals is triable only if it is
also an error in belief. Otherwise, it is dealt with by the ordinary
ecclesiastical courts. As it is arguable that a large number of crimes
are indicative of doctrinal error, the Holy Office could put forward a
rather sweeping claim to judicature over all manner of wrong-doing; but
in practice there was probably not much trouble as a rule, the tribunal
being kept sufficiently well occupied with offences _in intellectu_.
Only when the implication of heresy was the significant feature of a
crime was the Inquisition likely to be interested.
The list of offences coming within the sphere of inquisitorial
judicature is completed with the mention of sorcery and witchcraft,
practices essentially implying heresy.
II
The ingenious Ludovico à Paramo, ever anxious to discover warranty for
all that the Inquisition was and did in the Bible, and particularly
in the infancy of the human race, discovered the beginnings of the
inquisitorial process in the Book of Genesis. Thus God was the first
inquisitor; the call, ‘Adam, where art thou?’ was a citation to a
heretic; the coats of skins made for Adam and Eve were special garb
for heretics, the original of the special garb, the _sanbenitos_, with
which the Holy Office clad its culprits; and the deprivation of Adam
and Eve of paradise was equivalent to the confiscation of the heretic’s
goods.[374]
We shall find a more practically helpful explanation of the procedure
of the Inquisition if we content ourselves by remembering the origins
of the tribunal in the Middle Ages. The fundamental fact, which
shaped the whole character of its judicature, giving it its essential
distinctiveness apart from other judicatures, was the function of the
inquisitor. Originally he had been, not a judge, but a missionary;
he never became a judge simply and solely, he never entirely ceased
to be a missionary. His primary object was not so much to pronounce a
judgment as to guard the faith; his ambition not to condemn a heretic,
but to reconcile him to the Church. Every impenitent heretic was in a
sense a witness to inquisitorial failure, every penitent was a triumph.
The inquisitor, even when sitting in his tribunal, was not solely a
judicial functionary; he was still a confessor, a spiritual guide.
This fact is the keynote to the procedure of the Inquisition, because
it meant that the procedure was not simply and wholly judicial. The
Inquisition aimed at being something more than a court. Its ultimate
object was not secured by the simple judicial process of deciding the
guilt or innocence of the accused; it sought the spiritual end of
bringing the accused to a right state of mind and soul.[375]
Consequently, the inquisitor is always actuated by the desire to secure
confession. That does not by any means necessarily involve conviction.
What is wanted is that everyone arraigned before the tribunal should
publicly in the proceedings acknowledge his acceptance of the Catholic
faith. If he is not guilty, not a heretic at all, the inquisitor has
reason for personal rejoicing—there is one scandal less to the Church
and the faith. Or if the accused is guilty, but acknowledges his guilt
and is of his own accord, without compulsion, willing to recant, again
so much the better. It was preferable that the lost sheep should
voluntarily return, or allow itself quietly to be led back, into the
fold than that it should have to be forcibly driven in. What the Church
least desired was that the sheep should be lost altogether. Only if all
means to secure reconciliation had failed, was it possible to acquiesce
in such defeat. But the Church, in giving the most earnest solicitude
to the errant individual, had to think also, and yet more earnestly, of
the whole community, and of the sanctity and majesty of the truth which
the obdurate heretic had spurned.
Consequently, a salutary example must be made, the penalty being duly
solemn and impressive. But the mild methods first.
The second distinctive feature of the Inquisition was the methods of
originating proceedings before it. Whereas, under Roman law, either
the accusation by an individual or the denunciation by an official
was necessary before proceedings could be initiated, an _inquisitio_
could be instituted as the result of a _diffamatio_, the general
report of the inhabitants of any community, a parish, a _seigneurie_,
a town. It was indeed laid down that the _diffamatio_ must be _apud
bonos et graves_, people of standing and gravity of character. This
stipulation was no doubt something of a safeguard: nevertheless it
remains true that, as no individual had to take upon himself the onus
of showing that he had good cause for preferring a charge, the simple
fact of unpopularity with his neighbours might be quite sufficient for
the institution of proceedings against a man who was for any reason,
just or unjust, taboo among them. This method of justice belonged to
Canon law; there was no trace of it in Roman law; but it has to be
remembered that it was not instituted specifically against heretics,
but rather against clerical wrong-doers in high places, who passed
unchecked because the necessary number of accusers willing to take upon
themselves the responsibility, and also possibly danger, of prosecution
could not readily be found.[376]
Simple rumour by itself was not of great practical value. It had to
be organized. Hence the ruling of Innocent Ill’s decretal, _Licet
Heli_ (1199), relating to clerical abuses, that superiors are to
keep diligent watch over their subordinates, so as to bring their
misdoings before judicial authority; hence, as regards heresy, the
system of ‘synodal witnesses,’ whose specific duty it was to vocalize
local public opinion or knowledge. The general vague _diffamatio_
of the neighbourhood is by them so crystallized as to become of
practical value in a court of law. But while this system of using
the depositions of the synodal witnesses and the village clergy,
accomplished much, further organization was needed. The additional
device necessary was provided by the institution of the special papal
delegates, who were inquisitors in two different senses—judicial
officers, examining charges brought before them as members of a
tribunal; but also procurators making the preliminary investigations
prior to trial. They had two distinct functions, two distinct
inquisitions to make. These are technically _inquisitio generalis_ and
_inquisitio specialis_.
As the system became elaborated, the inquisitors had at their command
a formidable spy system, carried on by their agents, the familiars.
At the same time much encouragement was given to wholesale delation.
The inquisitor or his vicar would make a sudden dramatic descent upon
town or village, and deliver a solemn, perhaps menacing, exhortation
to the inhabitants to proffer information against heretics. By thus
appealing to the religious zeal or the apprehensions of the populace
many accusations would be obtained, often from husbands and wives,
parents and children. But to reinforce such voluntary incriminations
it was customary to proclaim a ‘time of grace,’ which lasted from
a fortnight to a month. If within that period the heretic came
forward, acknowledged his own guilt and gave any information he
possessed against others, he would obtain either complete exemption or
considerable alleviation from the penalties merited by heresy. This
method, Bernard Gui assures us, was remarkably satisfactory.[377]
The _inquisitio generalis_ being concluded, and prisoners obtained
either by voluntary self-denunciations or on the information of others,
the judge, according to canonical usage, had a choice of expedients.
He could either proceed to an _inquisitio specialis_ or make use of
the method of _purgatio canonica_. The second method had been solemnly
adopted by the Church in 803.[378] It was an appeal to God. The
accused solemnly swore by the Gospels that he was innocent, while
those of his friends or neighbours willing to support him acted as his
_compurgatores_ and gave similar solemn testimony to his innocence,
their number, from two or three to forty, varying in accordance with
the degree of suspicion existing against him. The device was obviously
defective. Its only advantage lay in the impressiveness of its appeal
to the devout mind, persuaded of the heinousness of the sin of
perjury, while it allowed the innocent man to suffer, if he happened
to be unpopular and could not prevail upon the necessary number of
compurgators to assist him, and also allowed the guilty to go free,
so long as he was not over-scrupulous as regards perjury and had the
necessary popularity to persuade, or power to compel, others to act as
his compurgators. Thus, while the system of canonical purgation was
never abolished, it had fallen into virtual desuetude before the end of
the thirteenth century.[379] In practice the _inquisitio generalis_ was
followed automatically by the _inquisitio specialis_. The accused was
served with a citation to appear before the tribunal and kept in prison
pending his trial.[380]
In the case of those who had yielded themselves up of their own
accord, the voluntary act constituted the confession, which it was
the inquisitor’s object to obtain. For those accused who refused to
confess there followed the interrogatory. Here the inquisitor acted as
prosecutor and cross-examiner, as a sort of _juge d’instruction_.[381]
Only the inquisitor’s office, unlike that of the _juge d’instruction_,
did not end with the completion of the interrogatory; having conducted
the examination, he would also afterwards pronounce the sentence.
The interrogatory resolved itself into an unequal contest between
inquisitor and accused. It was unequal, in the first place, because
there was always a presumption against anyone charged with heresy.
As we have seen, it was an offence for anyone to be so criminally
negligent in vitally important matters as to allow his conduct to
give rise to the slightest rumour of heresy. It was an excellent
characteristic of both Roman and Canon law that the accused was held
to be innocent until actually proved to be guilty. This characteristic
was not shewn, in actual practice, in dealing with one accused of
heresy. The mere fact of defamation tainted a man. It was, therefore,
a matter of very great difficulty for the defendant to demonstrate
his innocence. He had to demonstrate it; for the mere fact of the
_diffamatio_, whether well-grounded or not, was good evidence against
him; and to free himself, he must rebut this evidence. The process was
indeed so difficult that it was much safer to confess guilt at the
outset than to labour to prove innocence.
In the second place, the duel was unequal because the inquisitor
considered it perfectly legitimate to disconcert his adversary by means
of disingenuous subtleties and subterfuges. It is only fair to add
that the inquisitor adopted such devices because he believed that the
heretic was apt to indulge in them and might save himself by clever
equivocations unless dealt with astutely; and the inquisitor had a
lively sense of the extreme undesirability of permitting a heretic
to get the better of him in a duel of wits. Such a thing would be
ignominious for the inquisitor; a blow to the Church and the truth. We
are told of some of the artifices practised by Waldenses. In answer to
the question: ‘What is Holy Church?’ they will say, ‘What you consider
to be such’ or assert that they are simple illiterate men standing in
need of instruction, and must leave it to the judge to express their
beliefs in words. That the inquisitors may have found the rejoinders
even of illiterate men at times disconcerting is likely.[382] But it
is certain that they practised their subtleties on many who had not
the wits to cope with them: and, in any case, the inquisitor, being
both examiner and judge, had an enormous initial advantage. As a rule,
the inquisitor or his vicar was extremely well equipped to conduct
the interrogatory skilfully and successfully, even against the most
redoubtable antagonists. They possessed, moreover, a rich repository
of ready-made devices in the treatises written by the great masters of
the inquisitorial art. The difficulty of escaping from the tentacles of
the inquisitorial process inspired Bernard Délicieux to say that even
the orthodoxy of St. Peter and St. Paul would not have been sufficient
to satisfy the tribunal.[383] It was held to be legitimate to surprise
and confuse the defendant by a multiplicity of questions, which would
involve him in contradictions.[384]
Altogether the dice were heavily loaded against the accused. Dismayed
to begin with very likely by the simple shock of finding himself
accused of the terrible crime of heresy,[385] confronted by a
formidable examiner, who was clearly bent upon securing a confession
if at all possible, he had also to face the great obstacle presented
by the close secrecy of all the proceedings. There was none of the
security that comes from the open trial, none of the encouragement to
make a good fight for freedom, for honour, for life that comes from
publicity. Again, the chances of acquittal were very small when the
agreement of only two of the witnesses against him was sufficient
for the condemnation of the accused, whether he confessed or not:
especially as the delicate question of what constituted sufficient
agreement was left to the discretion of the judge. It was laid down
that agreement in substance was sufficient; and even when there was
discord in the evidence of the two witnesses, this was not sufficient
to secure acquittal. Moreover, evidence, not good enough to procure
conviction, would be good enough to serve as the basis of a prolonged,
searching and perplexing examination, in which the accused was more
likely to incriminate than to clear himself.[386]
A further heavy obstacle to the making of a defence was insufficiency
of information. While the résumé or _capitula_ of the charges preferred
against him was communicated to the defendant, on the other hand,
the names of the witnesses were withheld from him, and he was not
allowed to read their evidence _in extenso_. This practice of secrecy
commenced early in the thirteenth century in Languedoc, and the rule
soon came to apply in most other countries. Occasionally the names
were given, though in an incomplete or confusing fashion[387]; but
the inquisitors themselves were in favour of not disclosing names at
all.[388] This was owing to the circumstances in which the Inquisition
had originated, amid an unfriendly populace.[389] There had been cases
of the assassination of witnesses by the friends of the accused; and
undoubtedly there was always a certain element of risk in giving
evidence against a heretic in a country where heresy flourished and was
popular. In those early days the inquisitor was very likely endangering
his life in the prosecution of his labours: in such circumstances, if
the indispensable evidence was to be collected, some sort of safeguard
for voluntary witnesses was reasonable.
But an arrangement, which was justified, and perhaps rendered
imperative, by the conditions prevailing when the Inquisition began,
was continued indefinitely, and maintained when not the witnesses but
the defendant belonged to an unpopular minority and stood in urgent
need of some protection. How could anyone put on trial make an
effective answer to the charges brought against him when he was never
allowed to confront the witnesses, did not even know their identity,
and was permitted to see only a _précis_ of their testimony? It is
obvious that the system, whatever its origin, became in course of time
a positive encouragement to delation and a temptation to perjury. But
it is only right to add that the Inquisition, both in the Middle Ages
and later on, showed itself at times extremely severe in punishing
proved cases of false witness.[390]
Nevertheless, as a rule, the Inquisition was not at all nice in its
selection of evidence, and certainly not impartial. It accepted the
evidence of persons who were debarred from bearing testimony in the
secular courts. It even accepted the evidence of one heretic against
another, though it never admitted that the evidence of one heretic
in favour of another had the slightest validity.[391] Similarly the
Inquisition permitted, indeed encouraged, husbands to testify against
their wives, children against parents, servants against masters; though
their favourable testimony was rejected.[392] The rules as regards
age seem to have varied in different countries; but certainly it is,
generally speaking, true that persons were permitted to give evidence
before the Holy Office at an age when their testimony would not have
been received in a lay court. We even hear of a case at Montségur of a
child of six incriminating members of his own family and many others.
The ordinary rules regarding the status and character of witnesses
were similarly in abeyance. Criminals and men of infamous reputation,
homicides, harlots, proved perjurers and excommunicates were none of
them debarred from giving evidence against heretics.
Information might be forthcoming from the confessional. What were the
duties of a father-confessor in such a case? There was, on the one
hand, the fact of the extraordinary heinousness of this offence which
had necessitated the creation of a special court for its suppression;
but, on the other hand, the institution of the confessional had to
be safeguarded and a feeling of security be assured to the penitent,
without which he could not be expected to make a full and free
confession of all his sins, whatever their magnitude. The solution was
that the granting of absolution, upon an avowal of heresy, lay outside
the powers of an ordinary confessor; he must refer the matter to his
superiors. The question coming up before the Council of Tarragona
in 1242, it was indeed decided that, although a confessor granting
absolution for heresy without consulting his bishop merited censure,
nevertheless his grant of absolution, if duly certified by himself,
should entitle the penitent to a limited protection, _i.e._ immunity
from temporal penalties. This, however, was an isolated ruling, and it
was generally recognized that heresy was a ‘reserved’ case.
Absolution by an ordinary confessor was invalid and could be no
safeguard from the institution of inquisitorial proceedings against
a penitent, should evidence of heresy be preferred against him.
But what if, in spite of his knowledge that he could not obtain
absolution from his confessor, a penitent incriminated himself; what
if he, inadvertently perhaps, incriminated others? Was information
derived by a confessor in such a way sacrosanct, because obtained
in the confessional? Not apparently in Toulouse and Carcassonne at
all events. There priests were positively enjoined to utilize the
hearing of confessions to make diligent enquiry concerning heretics,
their believers and fautors, and also to confide carefully to writing
anything they learnt. They were also to take the penitent before the
bishop or his vicar, so that he might there repeat his testimony.
But if the penitent was unwilling to do this, the priest was
‘notwithstanding this’ to seek advice from expert and God-fearing
persons, as to how he should proceed further. What this must involve is
not specified; but clearly the only conceivable further proceedings are
either to bring more pressure to bear upon the penitent, or else to use
his evidence without his consent. Even if the latter never happened,
the former course is not in strict accordance with the rules that
should regulate the confessional.[393]
Yet another most serious disability, under which the accused laboured,
was that he was not allowed the assistance of an advocate, he was
thrown entirely on his own resources in making his defence. Innocent
III expressly forbade advocates and notaries to lend any aid to
heretics or their abettors. The prohibition at first applied only to
the case of open and avowed heretics. Eymeric ruled that counsel were
in no wise to be denied to the accused, but he followed this up by the
qualification, that advocates espousing the cause of a heretic rendered
themselves liable to prosecution before the Inquisition, as suspect of
heresy themselves for doing so.[394] In actual practice what happened
probably was that when the evidence against the accused was clear, he
need expect no advocate; but when it was weak, then an advocate might
be forthcoming. For if the evidence in support of the charge of heresy
was strong, then assistance given to the accused was tantamount to
fautorship of heresy, which was in itself a very serious offence. In
any case the rôle of advocate was dangerous and there was no inducement
to compensate for so grave a risk.
That such assistance was seldom, if ever, actually given seems proved
by the absence of any indication of the practice even in the early
inquisitorial registers.[395] Very soon, however, it was decided
absolutely that the use of advocates was to be prohibited. Such was
the ruling of the Council of Albi in 1254; and the regulation soon
became general.[396] This was the really inevitable consequence of the
view which made the suspect a marked, a tainted man even before he had
stood his trial. But certainly one consideration which weighed heavily
against the use of advocates was the possibility of the practice
encouraging the spread of heresy, though the chances of an advocate’s
allowing himself to be infected by his client’s erroneous doctrines
were remote. In its attitude towards this question we are once more
reminded of the fundamental fact of the Inquisition’s twofold nature.
If the inquisitor be considered as a confessor, the accused as a
penitent paternally exhorted, lovingly urged to reconciliation, pardon
being assured for the truly repentant, what possible need can there be
for an advocate?[397] The tribunal gave every facility for the escape
of the prisoner from all the possible unhappy consequences of his
defamation, down _one_ avenue—confession, penance, reinstatement.
If the defendant was obstinately determined on defending himself,
instead of throwing himself upon the mercy of the inquisitor, as
representative of the infinite compassion of the Church, he was very
much limited in his choice of pleadings. Ignorance was a possible
plea—more likely to be accepted in the case of a woman than a man—but
inquisitors were on their guard against feigned ignorance. That words
complained of were only a _lapsus linguae_, or an idle jest uttered
on the spur of the moment, or in drunkenness, might be accepted as
a legitimate excuse. The plea of great perturbation of mind—mortal
terror, for instance—might also possibly be accepted; but not the
madness of love or the sudden grief of bereavement.[398] To make
out a case on these lines was in any event very difficult, and the
only device that promised any really good prospect of success was to
challenge a witness on the ground that he was actuated by personal
malice. But as the witnesses’ names were not disclosed, this was no
easy matter. All that the accused could do, was to mention the names
of any of his neighbours who might bear him a grudge, on the chance
that they might be included among the authors of his defamation.[399]
But it was not sufficient to indicate simple ill-will. The charge of
heresy was so terrible that it was assumed that little short of mortal
enmity would induce anyone to prefer it maliciously. The accused would,
therefore, be carefully examined as to the nature of any quarrel with
his neighbours that he might allege in his defence. The only purpose
for which he was allowed the use of witnesses was to prove the facts of
such a quarrel.
It must be clear that even when the presiding judge was a fair-minded,
conscientious man, not too fanatical, the chances of effective defence
were small. And the prosecution was exceedingly strong. If preliminary
inducements, the subtleties of the interrogatory, the absence of means
of defence, all proved insufficient to produce the desired confession,
it was possible severely to shake the _moral_ of the defendant by
subjecting his case to prolonged delay, which was calculated to impose
a great strain upon the nerves. Except in rare instances time was no
consideration to the Inquisition. Its invincible patience was one of
the most terrible of its weapons. It was willing relentlessly to wait,
not merely weeks and months, but years and many years. It was quite
common for an interval of anything up to ten years to elapse between
the date of the first interrogatory and that of the final condemnation.
The period might be considerably longer. We hear of a man, first
brought to trial in 1301, being sentenced to death in 1319.[400]
This slow torture of suspense was generally endured in prison, where
the recalcitrant would probably receive frequent visits from the
inquisitor or his assistants, who would instruct him and exhort him
to make confession. If simple incarceration proved insufficient to
overcome the victim’s fortitude, great additional hardships could be
introduced—insufficiency of food, comfort, rest.
Finally, the most celebrated weapon which the Inquisition possessed for
procuring confession was torture itself. Torture had been known to both
Roman and barbarian law, being used even for such minor offences as
theft.[401] On the other hand, according to all the best authorities,
it was strange to Canon law. It did indeed recognize flogging, but only
as a punishment or penance. Gratian laid it down categorically that
torture was not to be used as a means of extorting confession. It was
not until after the condemnation of the ordeal by the Lateran Council
of 1215 that the Church sanctioned its use for this purpose. In the
bull, _Ad extirpanda_, published in 1252 by Innocent IV, the employment
of torture was not merely permitted, but enjoined.[402] The rule was
thereby laid down, that any sort of torment short of mutilation was
to be utilized in order to obtain confessions and information. But the
actual infliction of the torture was to be carried out by the secular
arm. The idea of the clergy’s personally superintending the infliction
of cruelty was very properly repugnant.
The sense of repugnance did not last long, however.[403] The
inquisitors of the thirteenth century found Innocent IV’s proviso
irksome. The employment of a secular official to assist them in
carrying through the inquisitorial process was no doubt inconvenient,
and in 1256 Alexander IV overcame the difficulty by granting
inquisitors and their assistants the privilege of absolving one
another, or giving one another dispensations, for any canonical
irregularities they might commit in the pursuance of their duties.[404]
This was an oblique reference to torture. This rule was reinforced by
Urban IV in 1262.[405] The subterfuge satisfied the scruples of the
inquisitors.
The extent to which torture was used no doubt varied in accordance with
the character of the inquisitor. In the sentences of Bernard de Caux
there is only one passing mention of the practice; there is only one
mention of it also in Bernard Gui. Though it is frequently referred
to by Geoffrey d’Ablis, this is in a negative way only.[406] It is
stated that so and so confessed freely, no torture having to be used.
But that torture was being used and with great severity is proved by
the intervention of Philip the Fair in 1291 and 1301, and of Clement V
in 1306; while in 1311 the Pope endeavoured to moderate the practice
by the requirement that torture should not be inflicted save with the
concurrence of the bishop of the diocese.[407] Bernard Gui very much
resented the restriction, and though in his sentences there is only
the one mention of torture, it is clear from his treatise that he
thoroughly approved of it, on account of its great utility.[408]
Certainly torture was regarded by inquisitors of the best type, not
as a habitual practice, but only as a final measure, to be used
solely when other means had failed. Eymeric lays it down that the
circumstances justifying its application are that the case against
the accused has been half-proved already or that the accused has
contradicted himself.[409]
It was a very salutary rule that no prisoner might be tortured
more than once; but this humane regulation became a dead-letter.
The inquisitors found it galling and surmounted the obstacle with
an utterly disgraceful quibble. Torture, they agreed, could not be
_repeated_; but it might be _continued_.[410] They used this patent
sophistry to justify the application of torture an indefinite number
of times at indefinite intervals. Thus some of the witches of Arras
were tortured forty times, twice in a day.[411] In such cavalier
fashion could rules and regulations be treated. The requirement that
confessions must be freely made without restraint was satisfied by
another similar subterfuge. A confession, which had actually been wrung
from the defendant or witness in the physical anguish of torture, was
confirmed some two or three days later in some other place than the
torture chamber; and this confirmation of the actual confession was
officially regarded as the true confession.[412]
There were no exemptions from the administration of torture on the
ground of youth, old age or infirmity, except for pregnant women. Old
men and women, young children might all be subjected to the process,
only in their case the infliction must be light.[413]
Eymeric laid it down that at all times the application must be moderate
and that there must never be any effusion of blood. The term ‘moderate’
is vague; and it is clear that there was no strict general rule, the
determining factor here, as so often with the Inquisition, being the
discretion of the judge.[414] The unhappy victim, on being brought
into the chamber, was first of all shown the instruments of torment
and urged to confess without recourse being had to them. In some cases
this alone was sufficient. But if a confession was not immediately
forthcoming, the prisoner—male or female, it made no difference—was
stripped naked and bound by the executioners. A second exhortation to
confess followed. If still there was no confession, the victim was then
actually subjected to the pain of the rack, the pulleys, the strappado
and the other devices of calculated cruelty, which were regarded as
appropriate for the coercion of recalcitrant suspect or unwilling
witness. Continued refusal to speak led to increase in the severity of
the application; further obduracy with increase in the severity of the
type of torture. The refinements of cruelty in the machines and devices
at the inquisitor’s disposal were so exquisite that it is marvellous
with what constancy they were often endured. There were many, no
doubt, who submitted at the simple threat of torture or at the first
turn of the screw; others who with almost superhuman endurance bore
frightful extremities of pain.
_Note._—The important subject of the influence exerted by the
procedure of the Inquisition upon the civil courts of Europe has
never been thoroughly worked out. There is partial treatment of
it in Esmein’s _Histoire de la Procédure Criminelle en France_;
English version, _A History of Continental Criminal Procedure_;
H. Brunner, _Die Entstehung der Schwurgerichte_ (1872); C. V.
Langlois, _L’Inquisition après des travaux récents_; P. Fournier,
_Les Officialités au Moyen Age_; H. C. Lea, _Superstition and
Force_, esp. pp. 428-590. Vol. v of the Continental Legal History
Series, published by the Association of American Law Schools,
while mainly based on Esmein’s study of Criminal Procedure in
France, is of wider scope and traces the inquisitorial system in
Europe generally. While the system of _inquisitio_, derived from
the later Roman Empire, was not passed on to the civil courts of
Europe solely through the _inquisitio haereticae pravitatis_, it is
the case that ‘The Church was able to furnish the secular courts
with a lesson and a model.... By its example it paved the way for
the substitution, consummated in the 1500’s, of the inquisitorial
procedure for the accusatory procedure in every country of Europe.’
Again: ‘This system, originally employed for prosecutions for
heresy, afterwards for all crimes, became, under the name of
“procédure à l’extraordinaire,” the system of common law in force
in the royal jurisdictions for the prosecution of serious crimes
until 1789.’—_A History of Continental Criminal Procedure_, p. 10
and pp. 10-11, _note_.