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]