CHAPTER X.

EVIDENCE.

We have seen in the foregoing chapter the inevitable tendency of the

inquisitorial process to assume the character of a duel between the

judge and the accused with the former as the assailant. This deplorable

result was the necessary outcome of the system and of the task imposed

upon the inquisitor. He was required to penetrate the inscrutable heart

of man, and professional pride perhaps contributed as much as zeal for

the faith in stimulating him to prove that he was not to be baffled by

the unfortunates brought before him in judgment.

In such a struggle as this the testimony of witnesses, for the most

part, counted for little except as a basis for arrest and prosecution,

and for threatening the accused with the unknown mass of evidence

against him, and for this the slightest breath of scandal, even from a

single person notoriously foul-mouthed, sufficed, without calling

witnesses.[384] The real battlefield was the prisoner's conscience, and

his confession the prize of victory. Yet the subject of evidence as

treated by the Inquisition is not wholly to be passed over, for it

affords fresh illustration of the manner in which the practice of

construing everything "in favor of the faith" led to the development of

the worst body of jurisprudence invented by man, and to the habitual

perpetration of the foulest injustice. The matter-of-course way in which

rules destructive of every principle of fairness are laid down by men

presumably correct in the ordinary affairs of life affords a wholesome

lesson as to the power of fanaticism to warp the intellect of the most

acute.

This did not arise from any peculiar laxity of practice in the ordinary

ecclesiastical courts. Their procedure, based upon the civil law,

accepted and enforced its rules as to the admission of evidence, and

the onus of proof lay upon the assertor of a fact. Innocent III., in his

instructions as to the Cathari of La Charité, reminded the local

authorities that even violent presumptions were not proof, and were

insufficient for condemnation in a matter so heinous--a rule which was

embodied in the canon law, where it became for the inquisitors merely an

excuse for obtaining certitude by extorting confession. How completely

they felt themselves emancipated from all wholesome restraint is shown

by the remarks of Bernard Gui--"The accused are not to be condemned

unless they confess or are convicted by witnesses, though not according

to the ordinary laws, as in other crimes, but according to the private

laws or privileges conceded to the inquisitors by the Holy See, for

there is much that is peculiar to the Inquisition."[385]

From almost the inception of the Holy Office there was an effort to lay

down rules as to what constituted evidence of heresy; but the Council of

Narbonne, in 1244, winds up an enumeration of the various indications by

saying that it is sufficient if the accused can be shown to have

manifested by any word or sign that he had faith or belief in heretics

or considered them to be "good men" (_bos homes_). The kind of testimony

received was as flimsy and impalpable as the facts, or supposed facts,

sought to be proved. In the voluminous examinations and depositions

which have reached us from the archives of the Inquisition we find the

witnesses allowed and encouraged to say everything that may occur to

them. Great weight was attached to popular report or belief, and to

ascertain this the opinion of the witness was freely received, whether

based on knowledge or prejudice, hearsay evidence, vague rumors, general

impressions, or idle gossip. Everything, in fact, that could affect the

accused injuriously was eagerly sought and scrupulously written down. In

the determined effort to ruin the seigneurs de Niort, in 1240, of the

one hundred and eight witnesses examined scarce one was able to speak of

his own knowledge as to any act of the accused. In 1254 Arnaud Baud of

Montréal was qualified as "suspect" of heresy because he continued to

visit his mother and aided her in her need after she had been

hereticated, though there was absolutely nothing else against him; only

delivering her up to be burned would have cleared him. It became, in

fact, a settled principle of law that either husband or wife knowing the

other to be a heretic and not giving information within a twelvemonth

was held to be a consenting party without further evidence, and was

punishable as a heretic.[386]

Naturally the conscientious inquisitor recognized the vicious circle in

which he moved and sought to satisfy himself that he could designate

infallible signs which would justify the conclusion of heresy. There is

ample store of such enumerated. Thus for the Cathari it sufficed to show

that the accused had venerated one of the perfected, had asked a

blessing, had eaten of the blessed bread or had kept it, had been

voluntarily present at an heretication, had entered into the _covenansa_

to be hereticated on the death-bed, etc. For the Waldenses such

indications were considered to be the confessing of sins to and

accepting penance from those known not to be regularly ordained by an

orthodox bishop, praying with them according to their rites by bending

the knees with them on a bench or other inclined object, being present

with them when they pretended to make the Host, receiving "peace" from

them, or blessed bread. All this was easily catalogued, but beyond it

lay a region of doubt concerning which authorities differed. The Council

of Albi, in 1254, declared that entering a house, in which a heretic was

known to be, converted simple suspicion into vehement; and Bernard Gui

mentions that some inquisitors held that visiting heretics, giving them

alms, guiding them in their journeys, and the like was sufficient for

condemnation, but he agrees with Gui Foucoix in not so considering it,

as all this might be done through carnal affection or for hire. The

heart of man, he adds, is deep and inscrutable, but he seeks to satisfy

himself for attempting the impossible by arguing that all which cannot

be explained favorably must be admitted as adverse proof. It is a

noteworthy fact that in long series of interrogations there will

frequently be not a single question as to the belief of the party making

confession. The whole energy of the inquisitor was directed to obtaining

statements of external acts. The upshot of it all necessarily was that

almost everything was left to the discretion of the inquisitor, whose

temper had more to do with the result than the proof of guilt or its

absence. How insignificant were the tokens on which a man's fate might

depend may be understood by a single instance. In 1234 Accursio

Aldobrandini, a Florentine merchant in Paris, made the acquaintance of

some strangers with whom he conversed several times, giving their

servant on one occasion ten sols, and bowing to them when they met, out

of politeness. This latter act was equivalent to the "veneration" which

was the crucial test of heresy, and when he chanced to learn that his

new acquaintances were heretics he felt himself lost. Hastening to Rome,

he laid the matter before Gregory IX., who exacted bail of him and sent

a commission to the Bishop of Florence to investigate the antecedents of

Accursio. The report was examined by the cardinals of Ostia and Preneste

and found to be emphatic in commending his orthodoxy, so he escaped with

a penance prescribed by Raymond of Pennaforte, the papal penitentiary,

and Gregory wrote to the inquisitors of Paris not to molest him. Under

such a system the most devout Catholic could never feel safe for a

moment.[387]

Yet in spite of all these efforts to define the indefinable, it was in

the very nature of things that absolute certitude could not, in a vast

range of cases, be reached except through confession. In order,

therefore, to avert the misfortune of acquitting those who could not be

brought to confess, it became necessary to invent a new crime--that

known as "suspicion of heresy." This opened a wide field for the endless

subtleties and refinements in which the jurists of the schools

delighted, rendering their so-called science of law a worthy rival of

scholastic theology. Suspicion thus was primarily divided into three

grades, designated as light, vehement, and violent, and the glossators

revel in defining the amount and quality of evidence which renders the

accused guilty of either of these, with the usual result that

practically the matter was left to the discretion of the tribunal. That

a man against whom nothing substantial was proved should be punished

merely because he was suspected of guilt may seem to modern eyes a scant

measure of justice; but to the inquisitor it appeared a wrong to God

and man that any one should escape against whose orthodoxy there rested

a shadow of a doubt. Like much else taught by the Inquisition, this

found its way into general criminal law, which it perverted for

centuries.[388]

Two witnesses were usually assumed to be necessary for the condemnation

of a man of good repute, though some authorities demanded more. Yet when

a case threatened to fail for lack of testimony, the discretion of the

inquisitor was the ultimate arbitrator; and it was agreed that if two

witnesses to the same fact could not be had, single witnesses to two

separate facts of the same general character would suffice. When there

was only one witness in all, the accused was still put on his purgation.

With the same determination to remove all obstacles in the way of

conviction, if a witness revoked his testimony it was held that if his

evidence had been favorable to the accused, the revocation annulled it;

if adverse, the revocation was null.[389]

The same disposition to construe everything in favor of the faith

governed the admissibility of witnesses of evil character. The Roman law

rejected the evidence of accomplices, and the Church had adopted the

rule. In the False Decretals it had ordered that no one should be

admitted as an accuser who was a heretic or suspected of heresy, was

excommunicate, a homicide, a thief, a sorcerer, a diviner, a ravisher,

an adulterer, a bearer of false witness, or a consulter of diviners and

soothsayers. Yet when it came to prosecuting heresy all these

prohibitions were thrown to the winds. As early as the time of Gratian,

infamous and heretical witnesses were receivable against heretics. The

edicts of Frederic II. rendered heretics incapable of giving testimony,

but this disability was removed when they testified against heretics.

That there was some hesitation on this point we see in the Legatine

Inquisition held in Toulouse in 1229, where it is recorded that Guillem

Solier, a converted heretic, was restored in fame in order to enable him

to bear witness against his former associates, and even as late as 1260

Alexander IV. was obliged to reassure the French inquisitors that they

could safely use the evidence of heretics; but the principle became a

settled one, adopted in the canon law, and constantly enforced in

practice. Without it, in fact, the Inquisition would have been deprived

of its most fruitful means of tracking heretics. It was the same with

excommunicates, perjurers, infamous persons, usurers, harlots, and all

those who, in the ordinary criminal jurisprudence of the age, were

regarded as incapable of bearing witness, yet whose evidence was

receivable against heretics. All legal exceptions were declared

inoperative except that of mortal enmity.[390]

In the ordinary criminal law of Italy no evidence was received from a

witness under twenty, but in cases of heresy such testimony was taken,

and, though not legal, it sufficed to justify torture. In France the

distinction seems to have been less rigidly defined, and the matter

probably was left, like so much else, to the discretion of the

inquisitors. As the Council of Albi specifies seven years as the period

at which all children were ordered to be made to attend church and learn

the Creed, Paternoster, and Salutation to the Virgin, it may be safely

assumed that below that age they would hardly be admitted to give

testimony. In the records of the Inquisition the age of the witness is

rarely stated, but I have met with one case, in 1244, after the capture

of the pestilent nest of heretics at Montségur, where the Inquisition

gathered so goodly a harvest, when the age of a witness, Arnaud

Olivier, happens to be mentioned as ten years. He admitted having been a

Catharan "believer" since he had reached the age of discretion, and thus

was responsible for himself and others. His evidence is gravely recorded

against his father, his sister, and nearly seventy others; and in it he

is made to give the names of sixty-six persons who were present about a

year before at the sermon of a Catharan bishop. The wonderful exercise

of so young a memory does not seem to have excited any doubts as to the

validity of his testimony, which must have been held conclusive against

the unfortunates enumerated, as he stated that they all "venerated"

their prelate.[391]

Wives and children and servants were not admitted to give evidence in

favor of the accused, but their testimony if adverse to him was

welcomed, and was considered peculiarly strong. It was the same with the

heretic, who, as we have seen, was freely admitted as an adverse

witness, but who was rejected if appearing for the defence. In short,

the only exception which could be taken to an accusing witness was

malignity. If he was a mortal enemy of the prisoner it was presumed that

his testimony was rather the prompting of hate than zeal for the faith,

and it was required to be thrown out. In the case of the dead, the

evidence of a priest that he had shriven the defunct and administered

the _viaticum_ went for nothing; but if he testified that the departed

had confessed to being a heretic, had recanted, and had received

absolution, then his bones were not exhumed and burned, but the heirs

had to endure such penance of fine or confiscation as would have been

inflicted on him if alive.[392]

Of course no witness could refuse to give evidence. No privilege or vow

or oath released him from the duty. If he was unwilling and paltered or

prevaricated and equivocated, there was the gentle persuasion of the

torture-chamber, which, as we have seen, was even more freely used on

witnesses than on principals. It was the ready instrument by which any

doubts as to the testimony could be cleared up; and it is fair to

attribute to the sanction of this terrible abuse by the Inquisition the

currency which it so long enjoyed in European criminal law. Even the

secrecy of the confessional was not respected in the frenzied effort to

obtain all possible information against heretics. All priests were

enjoined to make strict inquiries of their penitents as to their

knowledge of heretics and fautors of heresy. The seal of sacramental

confession could not be openly and habitually violated, but the result

was reached by indirection. When the confessor succeeded in learning

anything he was told to write it down and then endeavor to induce his

penitent to reveal it to the proper authorities. Failing in this, he

was, without mentioning names, to consult God-fearing experts as to what

he ought to do--with what effect can readily be conjectured, since the

very fact of consulting as to his duty shows that the obligation of

secrecy was not to be deemed absolute.[393]

After this glimpse at the inquisitorial system of evidence, we hardly

need the assurance of the legists that less was required for conviction

in heresy than in any other crime, and inquisitors were instructed that

slender testimony was sufficient to prove it--"_probatur quis

hœreticus ex levi causa_." Yet evil as was all this, the crowning

infamy of the Inquisition in its treatment of testimony was withholding

from the accused all knowledge of the names of the witnesses against

him. In the ordinary courts, even in the inquisitorial process, their

names were communicated to him along with the evidence which they had

given, and it will be remembered that when the Legate Romano held his

inquest at Toulouse, in 1229, the accused followed him to Montpellier

with demands to see the names of those who had testified against them,

when the cardinal recognized their right to this, but eluded it by

showing merely a long list of all the witnesses who had appeared during

the whole inquest, giving as an excuse the danger to which they were

exposed from the malevolence of those who had suffered by their

evidence. That there was some risk incurred by those who destroyed their

neighbors is true; the inquisitors and chroniclers mention that

assassinations from this cause sometimes occurred--six being reported in

Toulouse between 1301 and 1310. It would have been strange had this not

been the case, nor was the chance of such wild justice altogether an

unwholesome check upon the security of malevolence. Yet that so flimsy

an excuse should have been systematically put forward shows merely that

the Church recognized and was ashamed of its plain denial of justice,

since no such precaution was deemed necessary in other criminal affairs.

Already in 1244 and 1246 the councils of Narbonne and Béziers order the

inquisitors not to indicate in any manner the names of the witnesses,

alleging as a reason the "prudent wish" of the Holy See, although in the

instructions of the Cardinal of Albano the saving clause of risk is

expressed. When Innocent IV. and his successors regulated the

inquisitorial procedure, the same limitation to cases in which divulging

the names would expose the witnesses to danger was sometimes omitted and

sometimes repeated, and when Boniface VIII. embodied in the canon law

the rule of withholding the names he expressly cautioned bishops and

inquisitors to act with pure intentions, not to withhold the names when

there was no peril in communicating them, and if the peril ceased they

were to be revealed. Yet it is impossible to regard all this as more

than a decent veil of hypocrisy to cover recognized injustice, for it

was a flagrant fact that inquisitors everywhere treated these

exhortations as the councils of Narbonne and Béziers had treated the

limitations prescribed by the Cardinal of Albano. Although in the

inquisitorial manuals the limitation of risk is usually mentioned, the

instructions with regard to the conduct of the trials always assume as a

matter of course that the prisoner is kept in ignorance of the names of

the witnesses against him. As early as the time of Gui Foucoix that

jurist treats it as the universal practice; a nearly contemporary MS.

manual lays it down as an invariable rule; and in the later periods we

are coolly informed by both Eymerich and Bernardo di Como that cases

were rare in which risk did not exist; that it was great when the

accused was rich and powerful, but greater still when he was poor and

had friends who had nothing to lose. Eymerich evidently considers it

much more decent to refuse the names than to adopt the expedients of

some over-conscientious inquisitors who furnished, like Cardinal Romano,

the names written on a different piece of paper and so arranged that

their identification with their evidence was impossible, or who mixed up

other names with those of the witnesses so as to confuse hopelessly the

defence. Occasionally a less disreputable but almost equally confusing

plan was adopted, in swearing a portion of the witnesses in the presence

of the accused, while examining them in his absence. Thus in the trial

of Bernard Délicieux, in 1319, out of forty-eight witnesses whose

depositions are recorded, sixteen were sworn in his presence; in that of

Huss, in 1414, it is mentioned that fifteen witnesses at one time were

taken to his cell that he might see them sworn.[394]

From this withholding of names it was but a step to withholding the

evidence altogether, and that step was sometimes taken. In truth the

whole process was so completely at the arbitrary discretion of the

inquisitor, and the accused was so wholly without rights, that whatever

seemed good in the eyes of the former was allowable in the interest of

the faith. Thus we are told that if a witness retracted his evidence,

the fact should not be made known to the defendant lest it should

encourage him in his defence, but the judge is recommended to bear it in

mind when rendering judgment. The tender care for the safety of

witnesses even went so far that it was left to the conscience of the

inquisitor whether or not to give the accused a copy of the evidence

itself if there appeared to be danger to be apprehended from doing so.

Relieved from all supervision, and practically not subject to appeals,

it may be said that there were no rules which the inquisitor might not

suspend or abrogate at pleasure when the exigencies of the faith seemed

to require it.[395]

Among the many evils springing from this concealment, which released

witnesses and accusers from all responsibility, not the least was the

stimulus which it afforded to delation and the temptation created to

gratify malice by reckless perjury. Even without any special desire to

do mischief, an unfortunate, whose resolution had been broken down by

suffering and torture, when brought at last to confess, might readily be

led to make his story as satisfactory as possible to his tormentors by

mentioning all names that might occur to him as being present at

conventicles and heretications. There can be no question that the

business of the Inquisition was greatly increased by the protection

which it thus afforded to informers and enemies, and that it was made

the instrument of an immense amount of false-witness. The inquisitors

felt this danger and frequently took such precautions as they could

without trouble, by warning a witness of the penalties incurred by

perjury, making him obligate himself in advance to endure them, and

rigidly questioning him as to whether he had been suborned.

Occasionally, also, we find a conscientious judge like Bernard Gui

carefully sifting evidence, comparing the testimony of different

witnesses, and tracing out incompatibilities which proved that one at

least was false. He accomplished this twice, once in 1312 and again in

1316, the earlier case presenting some peculiar features. A man named

Pons Arnaud came forward spontaneously and accused his son Pierre of

having endeavored to have him hereticated when laboring under apparently

mortal sickness. The son denied it. Bernard, on investigation, found

that Pons had not been sick at the date specified, and that there had

been no heretics at the place named. Armed with this information he

speedily forced the accuser to confess that he had fabricated the story

to injure his son. Creditable as is this case to the inquisitor, it is

hideously suggestive of the pitfalls which lay around the feet of every

man; and no less so is an instance in which Henri de Chamay, Inquisitor

of Carcassonne, in 1329, resolutely traced out a conspiracy to ruin an

innocent man, and had the satisfaction of forcing five false-witnesses

to confess their guilt. Rare instances such as these, however, offered

but a feeble palliation for the inherent vices of the system, and in

spite of the severe punishment meted out to those who were discovered,

the crime was of very frequent occurrence. The security with which it

could be committed renders it safe to assume that detection occurred in

a very small proportion of the cases; so when among the scanty documents

that have reached us we see six false-witnesses (of whom two were

priests and one a clerk), sentenced at an _auto de fé_ held at Pamiers

in 1323; four at Narbonne in December, 1328; one, a few weeks after, at

Pamiers; four more at Pamiers in January, 1329, and seven (one of whom

was a notary) at Carcassonne in September, 1329, we may conclude that if

the full records of the Inquisition were accessible, the list would be a

frightful one, and would suggest an incalculable amount of injustice

which remained undiscovered. We do not need the admission of Eymerich

that witnesses are found frequently to conspire together to ruin an

innocent man, and we may well doubt his assurance that persistent

scrutiny by the inquisitor will detect the wrong. There is, perhaps,

only a consistent exhibition of inquisitorial logic in the dictum of

Zanghino, that a witness who withdraws testimony adverse to a prisoner

is to be punished for false-witness, while his testimony is to stand,

and to receive full weight in rendering judgment.[396]

A false-witness, when detected, was treated with as little mercy as a

heretic. As a symbol of his crime two pieces of red cloth in the shape

of tongues were affixed to his breast and two to his back, to be worn

through life. He was exhibited at the church-doors on a scaffolding

during divine service on Sundays, and was usually imprisoned for life.

The symbol was changed to that of a letter in the case of Guillem Maurs,

condemned in 1322 for conspiring with others to forge letters of the

Inquisition whereby some parties were to be cited for heresy with the

view of extorting hush-money from them. As the degree of criminality

varied, so there were differences in the severity of punishment. Those

condemned in Pamiers in 1323 were let off without incarceration. The

four at Narbonne, in 1328, were regarded as peculiarly culpable, having

been suborned by enemies of the accused, and they were accordingly

condemned to the severest form of imprisonment, on bread and water, with

chains on hands and feet. The assembly of experts held at Pamiers for

the _auto_ of January, 1329, decided that, in addition to imprisonment,

either lenient or harsh, according to the gravity of the offence, the

offenders should make good any damage accruing to the accused. This was

an approach to the _talio_, and the principle was fully carried out in

1518 by Leo X. in a rescript to the Spanish Inquisition, authorizing the

abandonment to the secular arm of false witnesses who had succeeded in

inflicting any notable injury on their victims. The expressions used by

the pope justify the conclusion that the crime was still frequent.

Zanghino tells us that in his time there was no defined legal penalty,

and that the false witness was to be punished at the discretion of the

inquisitor--another instance of the tendency which pervades the whole

inquisitorial jurisprudence, to fetter the tribunals with as few rules

as possible, to clothe them with arbitrary power, and trust to God, in

whose name and for whose glory they professed to act, to inspire them

with the wisdom necessary for the discharge of their irresponsible

trust.[397]

A History of the Inquisition of the Middle Ages; volume I · 第 13 / 19 章