THE JURISPRUDENCE OF THE HOLY OFFICE--THE MODE OF PROCEDURE
No complete notion of the jurisprudence of the Holy Office can be
formed without taking a glance at this tribunal at work and observing
the methods upon which it proceeded in its dealings with those who were
arraigned before it.
Its scope has already been considered, and also the offences that
came within its pitiless jurisdiction at the time of Torquemada’s
appointment to the mighty office of Grand Inquisitor and President
of the Suprema. It remains to be added that in his endeavours to
cast an ever-wider net he sought to increase the jurisdiction of the
Inquisition beyond matters immediately concerned with the Faith and to
include certain offences whose connection with it was only constructive.
Whether he succeeded to the full extent of his aims we do not know.
But we do know that he contrived that bigamy should become the concern
of the Holy Office, contending that it was primarily an offence
against the laws of God and a defilement of the Sacrament of Marriage.
Adultery, which is no less an offence against that sacrament, and
which is not punishable by civil law, he passed over; but he contrived
that sodomy should be brought for the first time within inquisitorial
jurisdiction and that those convicted of it should be burnt alive.
Himself a man of the most rigid chastity, he must have been moved to
anger by the unchastity so prevalent among the clergy. It was, however,
beyond his power to deal with it without special authority from Rome,
and he would have been bold indeed to have sought such authority at
the hands of that flagrant paterfamilias Giovanni Battista Cibo, who
occupied the Chair of St. Peter with the title of Pope Innocent VIII.
The most scandalous form of this unchastity was that known as
“solicitation”--_solicitatio ad turpia_--or the abuse of the
confessional for the purpose of seducing female penitents. It was a
matter that greatly vexed the Church as a body, since it placed a
terrible weapon in the hands of her enemies and detractors. It was
admittedly rampant, and it is more than probable that it was directly
responsible for the institution of the confessional-box--enforced in
the sixteenth century--which effectively separated confessor from
penitent, and left them to communicate through a grille.
The matter, like all other offences of the clergy, was entirely within
the jurisdiction of the bishops, who would vigorously have resisted
any attempts on the part of Torquemada to encroach further upon their
province. So the Church was left to combat that evil as best she might;
and, with the exception of an odd bishop who assumed a stern attitude
and dealt with it as became his own dignity and the honour of the
priesthood, the utmost lenience appears to have prevailed,[94] as we
may judge by the penances imposed upon convicted offenders.
The perils and temptations to which a priest was exposed in the course
of the intimate communications that must pass between him and his
penitents were given full recognition and allowed full weight in the
balance against the offence itself.
Later on, however, this matter which Torquemada had considered
beyond his power was actually thrust within the jurisdiction of the
Inquisition by a Church resolved, for the very sake of its existence,
that the evil should cease.
Vexatious as this crime of “solicitation” had always been, it became
most urgently and perilously so after the Reformation, when it provided
those who denounced the confessional with an apparently unanswerable
reason for their denunciations. It was wisely thought that the methods
of the Holy Office were best calculated to deal with it, and the matter
was relegated to the inquisitors. The defilement of the sacrament was
the link that connected solicitation with heresy. Moreover, in some
cases there might be heresy of a more positive kind; as when, for
instance, the priest assured the penitent that her consent was not a
sin. And the woman accusing a priest of solicitation before the Holy
Office was always questioned closely upon this particular point.
In the later editions of the “Cartilla,” or Manual for the guidance
of Inquisitors--all of which publications were issued by the private
press of the Inquisition--are to be found under the heading “Causas de
Solicitacion” instructions for the examination of a woman who denounces
a priest upon these grounds.[95]
Even so, however, it could not be in the interests of the Church to
parade these offenders, and thus expose the sore places in her own body.
Limborch urges that delinquents be sent to the galleys, or even
delivered to the secular arm. But for that--as Llorente points
out--it would have been necessary to include them in an Auto de Fé
of which there could be no question on account of the scandal which
must ensue in view of the character of the offence. This is very true,
and none can doubt the desirability of avoiding publicity for such a
matter, or suppose that the Church was in the least blame-worthy for
so proceeding. At the same time, however justifiable we may account
this secrecy, it is almost impossible to justify the lenience of the
sentences that were passed. It is above all extraordinary that the
usual punishment did not even go so far as to unfrock these offenders.
The inquisitors confined themselves to depriving the convicted priest
of the faculty of hearing confessions in future, and imposed a penance
of some years’ residence in the seclusion of a convent.
It is possible, however, that this punishment was heavier than may at
first appear. For--to their credit be it said--the regulars into whose
convent the penanced cleric was sent undertook that this penance should
be anything but easy.
This comes to light in the course of a case of which Llorente cites the
full particulars from the records he unearthed.[96]
It is the case of a Capuchin brother tried in the eighteenth century by
the Grand Inquisitor Rubin de Cevallos; and as much in the quality and
extent of the offence as in the brazenly ingenious defence set up by
the friar, the record reads like one of the least translatable stories
from Boccaccio’s “Decameron.” He was sentenced to go into retreat for
five years in a convent of his order; and so great a dread did that
sentence strike into the Capuchin that he besought of the inquisitors
the mercy of being allowed to serve the sentence in one of the dungeons
of the Inquisition. Questioned as to his reasons for a request that
sounded so extraordinary, he protested that he knew too well the
burden his brethren were wont to impose upon a friar penanced as was he.
His petition was dismissed, the Grand Inquisitor refusing to alter the
sentence; and Llorente adds that the Capuchin died three years later in
the convent to which he was sent.
* * * * *
How far the crime was rampant when the Inquisition was entrusted with
its prosecution may be gathered from the statistics given by H. C.
Lea.[97] It appears from these that in the city of Toledo alone, during
the first thirty-five years that the matter was in the hands of the
Holy Office, fifty-two sentences were passed upon priests found guilty
of “solicitation,” and it is not to be supposed, as Lea very shrewdly
observes, that delations were forthcoming in more than a proportion
of the cases that occurred, or that more than a proportion of these
delations could lead to conviction--since, to avert scandal as much as
possible, no action would be taken save where the indications of guilt
were very clear.
This view is certainly supported by the injunction of caution and
the other instructions in the Manual under the heading “Causas de
Solicitaciones,” already cited.
Finally on this subject, Llorente’s statistics show that the offenders
were chiefly friars; the proportion of secular priests convicted
being only one in ten. This does not, however, signify greater
chastity on the part of secular priests. Llorente offers the obvious
explanation--an explanation too obvious to need repeating here.[98]
* * * * *
Another offence that came later to be added to those within the
jurisdiction of the Holy Office was that of usury. But in Torquemada’s
day neither this nor solicitation was allowed to be the concern of the
Inquisition.
In its methods of procedure the tribunal of the Holy Office under
the zealous rule of the Prior of Holy Cross followed closely upon
the lines laid down by Eymeric. Indeed in the “Cartilla” or “Manual”
that was issued later for the use of inquisitors--of which several
editions are in existence to-day--these rules taken bodily from the
“Directorium” were incorporated as a supplement to the code promulgated
by Torquemada, consisting of the articles already considered and of
others to be added later.
These methods we will now consider.
* * * * *
The accused was brought before the tribunal sitting in the
audience-chamber of the Holy Office--or Holy House (_Casa Santa_) as
the premises of the Inquisition came to be styled.
The court was composed of at least one of the inquisitors delegated by
Torquemada, the diocesan ordinary, the fiscal advocate, and a notary to
take down all that might transpire. They were seated about a table upon
which stood a tall crucifix, between two candles, and the Gospels upon
which the accused was to be sworn.
The oath being administered, the prisoner was asked his name,
birthplace, particulars of his family, and the diocese in which he
resided. Next he was vaguely questioned as to whether he had heard
speak of such matters as those upon which he was accused.[99]
Pegna warns inquisitors against being too precise in their questions,
lest they should suggest answers to the accused.[100] Another reason
for this vagueness was that being precisely questioned the accused
might in his answers confine himself to the matter of those questions,
whilst where the inquiry was conducted in vague, general terms, he
might in his reply betray matters or persons hitherto unsuspected.
Obviously with the same end in view, the scholiast suggests that the
accused be asked whether he knows why he has been arrested, and whom he
suspects of having accused him; whilst as a means of instantly testing
whether he is an observer of his Catholic duties the inquisitors are
instructed to ask him who is his confessor and when he was last at
confession. The answer of one who was secretly an apostate, or even
who had neglected to comply with his religious duties as prescribed,
must necessarily be enormously incriminating. It would justify violent
suspicion of heresy against him, which has already been considered,
together with its consequences.
Pegna further enjoins inquisitors to be careful that they do not afford
the accused any means of evading their questions, and not to be imposed
upon by protestations or tears, heretics being, he assures them, of an
extreme cunning in dissembling their errors.
Eymeric specifies ten different methods employed by heretics to trick
inquisitors. These are not of any real importance, nor do they leave us
in the least convinced that any such ruses were actually employed. They
are obviously based upon an intimate acquaintance with priestly guile
rather than upon any experience of the craftiness of actual heretics.
They may, in short, be said to be just such ruses as the inquisitors
themselves might employ if they found the tables turned upon themselves
and the heretic sitting in the seat of justice.
He urges the inquisitors to meet guile with guile: “ut clavus clavo
retundatur.” He justifies recourse to hypocrisy and even to falsehood,
telling the inquisitors that thus they will be in a position to say:
“Cum essem astutus dolo vos cepi,” and to the ten evasive methods which
he asserts are adopted by heretics, he bids their paternities oppose
ten specified rules by which to capture and entrap them.
These rules and Pegna’s commentaries upon them are worth attention
for the sake of the intimate glimpse they afford us of the mediæval
ecclesiastical mind.
The accused is to be compelled by repeated examinations to return clear
and precise answers to the questions asked.
If the accused heretic is resolved not to confess his fault, the
inquisitor should address him with great sweetness (_blande et
mansuete_), giving him to understand that all is already known to the
court, speaking as follows:
“Look now, I pity you who are so deluded in your credulity, and whose
soul is being lost; you are at fault, but the greater fault lies with
him who has instructed you in these things. Do not, then, take the
sin of others upon yourself, and do not make yourself out a master in
matters in which you have been no more than a pupil. Confess the truth
to me, because, as you see, I already know the whole affair. And so
that you may not lose your reputation, and that I may shortly liberate
and pardon you and you may go your ways home, tell me who has led
you--you who knew no evil--into this error.”
By similar kind words (_bona verba_), always imperturbable (_sine
turbatione_), let the inquisitor proceed, assuming the main fact to be
true and confining his questions to the circumstances.
Pegna adds another formula, which he says was employed by Fr. Ivonet.
Thus:
“Do not fear to confess all. You will have thought they were good men
who taught you so-and-so; you lent ear to them freely in that belief,
etc.... You have behaved with credulous simplicity towards people whom
you believed good and of whom you knew no evil. It might very well
happen to much wiser men than you to be so mistaken.”[101]
Thus was the wretch coaxed to self-betrayal, caressed and stroked by
the velvet glove that muffled and dissembled the iron hand within.
In the case of a heretic against whom the witnesses have not supplied
matter for complete conviction, let him be brought before the
inquisitor and let the inquisitor question him at random. When the
accused shall have denied something (_quando negat hoc vel illud_) that
has been put to him, let the inquisitor take up the minutes of the
preceding examinations, turn the leaves and say:
“It is clear that you conceal the truth; cease to employ dissimulation.”
Thus the accused may suppose that he is convicted, and that the minutes
supply proof against him.
Or let the inquisitor hold a document in his hand, and when the accused
denies, let him feign astonishment and exclaim:
“How can you deny such a thing? Is it not clear to me?” He will then
peruse his document anew, making changes, and then reading once more,
let him say, “I was right! Speak, then, since you perceive that I know.”
The inquisitor must be careful not to enter into any details that might
betray his ignorance to the accused. Let him keep to generalities.
If the accused persists in his denial, the inquisitor may tell him that
he is about to set out upon a journey and that he doesn’t know when he
will be returning. Thus:
“Look now, I pity you, and I wanted you to tell me the truth, for I
am anxious to expedite the affair and yourself. But since you are
obstinate in refusing to confess, I must leave you in prison and in
irons until I return; and I am sorry, because I do not know when I
shall return.”
[Illustration:
_Photo by Donald Macbeth._
TOLEDO.
From Colmenar’s “Délices d’Espagne.”]
If the accused persists in denial, let the inquisitors multiply
examinations and questions; then either the accused will confess, or
(becoming confused) will contradict himself. If he contradicts himself
that will suffice to put him to torture, that thus the truth may be
extracted from his mouth. But frequent interrogations should not be
employed save with one of extreme stubbornness, because to frequent
questions upon the same matter it is easy to obtain variable
answers; there is hardly anybody who would not be surprised into a
contradiction.
* * * * *
Here we have a glimpse of the extraordinary flexibility of the
inquisitorial conscience. The letter of the law must ever be observed
in all proceedings; but its spirit must by all means be circumvented
where it is expedient to do so. Certain conditions, presently to be
examined, must be present before an accused could be put to torture.
One of these was that under examination he should contradict himself.
This rule they scrupulously observed; but they had no qualms on
the score of bringing about the requisite condition by a trick--of
compelling the accused to contradict himself by repeated questions upon
the same subject. And Eymeric himself admits that hardly anybody could
avoid varying in his answers under such a test.
It may be uncharitable to suppose that the last paragraph of this rule
is intended as a hint rather than as the warning it pretends to be. But
it is a suspicion which the further consideration of the inquisitorial
conscience must inspire in every thoughtful mind. It is so much of a
piece with the inquisitors’ extraordinary attitude towards the letter
of the law to proceed in that way.
If the accused still persists in denial, the inquisitor should now
soften his conduct; let him contrive that the prisoner has better food,
and that worthy people visit him and win his confidence; these shall
then advise him to confess, promise that the inquisitor will pardon him
(_faciet sibi gratiam_), and that they themselves will act as mediators.
The inquisitor himself may in the end go so far as to join them, and
promise to accord grace (_i.e._ pardon) to the accused, and grant him
this grace in effect, since all is grace that is done in the conversion
of heretics; penances being themselves graces and remedies. When the
accused, having confessed his crime, demands the promised “grace,” let
him be answered in general terms that he shall receive even more than
he could ask, so that the whole truth may be discovered and the heretic
converted[102]--“and his soul saved, at least,” adds Pegna.[103]
Thoroughly to appreciate the deliberate duplicity here practised, it
is necessary to take into account the double or even treble meaning of
the term grace--“gratia”--employed by Eymeric, and having in Spanish
(_i.e._ its equivalent “gracia”) precisely the same meanings as in
Latin.
Although not so popularly used in these various meanings, the English
term “grace” can also signify (_a_) the prerogative of mercy exercised
as a complete pardon, (_b_) the same prerogative exercised to relieve
part of the penalty incurred, or (_c_) a state of acceptance with God.
The accused was deliberately led to suppose that “gratia” was employed
in the sense of a complete pardon. It remained with the inquisitor
to quiet his conscience for this _suggestio falsi_ by preferring the
letter to the spirit of his promise; he would enlighten the accused
that by “grace” no more was meant than a remission of part of the
penalty incurred (an insignificant remission usually), or even that all
that he had in mind was the grace of divine favour into which his soul
would enter--so that this might be saved at least, as Pegna explains.
Pegna has a good deal more to say on the same subject, and all of it is
extremely interesting.
He propounds the questions: “May an inquisitor employ this ruse to
discover the truth? If he enters into such a promise is he not obliged
to keep it?” By this latter question he means, of course, the promise
to pardon which the prisoner was given to understand was made him.
He proceeds to tell us that Dr. Cuchalon decided the first of these
questions by approving the use of dissimulation, justifying it by the
instance of Solomon’s judgment between the mothers.
It really seems as if there is nothing that theologians cannot justify
by inversion, subversion, or perversion of some precedent (more or less
apocryphal in itself) to suit their ends.
The scholiast himself agrees with the reverend doctor, and considers
that although jurisconsults may disapprove of such methods in civil
courts, it is quite fit and proper to use them in the courts of the
Holy Office; explaining that the inquisitor has ampler powers than the
civil judge [which seems to be an extraordinary reason for justifying
his abuse of them].
Thus, Pegna pursues, in this edifying treatise upon the uses of
hypocrisy, provided that the inquisitor does not promise the offender
absolute impunity, he may always promise him “grace” (which by the
offender is taken to signify “absolute impunity”) and keep his promise
by diminishing somewhat the _canonical_ pains that depend upon himself.
In actual practice this would mean that a heretic who has incurred the
stake may be promised pardon if he will confess to the sins of which it
is necessary to convict him before he can be burnt. And when, having
confessed and delivered himself into the hands of the inquisitor, he
claims his pardon, he is to be satisfied with the answer that the
pardon meant was pardon for his sins--absolution, that his soul may be
saved when they burn his body.
On the score of the second question propounded by the scholiast--“If
the inquisitor enters into such a promise is he not obliged to keep
it?”--he answers it by telling us that many theologians do not
consider there is any such obligation on the part of the inquisitor.
This attitude they explain by urging that such a fraud is salutary
and for the public good; and, further, that if it is licit to extract
the truth by torture, it is surely much more so to accomplish it by
dissimulation--_verbis fictis_.
This is the general but by no means the universal opinion, we gather.
There are some writers who are opposed to it. And now the scholiast
becomes more extraordinary still. Hear him:
“These two divergent opinions may be reconciled by considering that
whatever promises the inquisitors make, they are not to be understood
to apply to anything beyond the penalties whose rigour the Inquisition
has the right to lessen--namely, canonical penances, and not those by
law prescribed.”
* * * * *
He writes this knowing that these promises are understood by the
prisoner to mean something very different--that the prisoner is desired
so to understand them, made so to understand them.
The honesty of Pegna’s reasoning is not to be suspected. He is not an
apologist of the Holy Office writing for the world in general, and
employing bad arguments perforce because he must make the best of
the only ones available, even though he should lapse into suspicion
of bad faith. He is writing, as a preceptor, for the private eye of
the inquisitor. Therefore we can only conclude that these learned
casuists who plunge into such profundities of thought and pursue such
labyrinthine courses of reasoning had utterly failed to grasp the
elementary moral fact that falsehood does not lie in the word uttered,
but in the idea conveyed.
“However little,” he continues, in the course of polishing this gem of
casuistry, “may be the remission granted by the inquisitor, it will
always be sufficient to fulfil his promise.”
You see what a stickler he is for the letter of the law. You shall see
a good deal more of the same sort of thing before we have gone much
further.
But here the scholiast begins to labour. His conscience is stirring;
possibly a ray of doubt penetrates his gloomy confidence that right
is wrong and wrong is right. And so, we fancy, to quiet these uneasy
stirrings comes the last paragraph on this subject:
“However, for greater safety of conscience, inquisitors should make no
promises save in very general terms, and never promise more than they
can fulfil.”[104]
* * * * *
There is one more of Eymeric’s ruses for combating the guile of
stubborn heretics:
Let the inquisitor obtain an accomplice of the accused, or else a
person esteemed by the latter and in the inquisitor’s confidence, and
engage him to talk often to the accused and extract his secret from
him. If necessary, let this person pretend to be of the same heretical
sect, to have abjured through fear, and to have declared all to the
inquisitor.
Then one evening, when the accused shall have gained confidence in this
visitor, let the latter remain until he can say that it is too late
to return home and that he will spend the night in the prison. Let
persons be suitably placed to hear the conversation of the accused and
if possible a notary to take down in writing the confessions of the
heretic, who should now be drawn by the spy into relating all that he
has done.
* * * * *
Upon this subject Pegna moralizes[105] for the benefit of the spy,
pointing out how the latter may go about his very turpid task without
involving himself in falsehood or besmirching in the least the
delicate, sensitive soul that we naturally suppose must animate him.
* * * * *
“Be it noted that the spy, simulating friendship and seeking to draw
from the accused a confession of his crime, may very well pretend to be
of the sect of the accused, but” [mark the warning] “he must not say
so, because in saying so he would at least commit a venial sin, and we
know that such must not be committed upon any grounds whatever.”
* * * * *
Thus the scholiast. He makes it perfectly clear that a man may simulate
friendship for another for the purpose of betraying that other to his
death; that to make that betrayal more certain he may even pretend to
hold the same religious convictions; all this may he do and yet commit
no sin--not even a venial sin--so long as he does not actually clothe
his pretence in words. What a store the casuist sets by words!
It is just such an argument as Caiaphas might have employed with Judas
Iscariot one evening in Jerusalem.
It is a cherished thesis with apologists of the Holy Office that in
its judicial proceedings it did neither more nor less than what was
being done in its day in the civil courts; that if its methods were
barbarous--if they shock us now--we are to remember that they were the
perfectly ordinary judicial methods of their time.
But there was no secular court in Europe in the fifteenth
century--steeped as that century was in dissimulation and bad
faith--that would not have scorned to have made such dishonourable and
dishonouring methods as these an acknowledged, regular and integral
part of its procedure.
Pegna himself reveals the fact, when he finds it necessary further to
justify these practices precisely because they were not in use in the
civil courts:
“Perchance the authority of Aristoteles--who out of the bosom of
Paganism condemned all manner of dissimulation--may be opposed to
us, as well as that of the jurisconsults who disapprove of artifices
of which judges may make use to extract the truth. But there are two
forms of artifice: one addressed to an evil end, which must not be
permitted; the other aiming at discovering truth, which none could
blame.”[106]
* * * * *
When confession has been obtained it would be idle, Eymeric points
out, to grant the delinquent a defence. “For although in civil courts
the confession of a crime does not suffice without proof, it suffices
here.” The reason advanced for this is as specious as any in the
“Directorium”: “Heresy being a sin of the soul, confession may be the
only evidence possible.”
Where an advocate was granted to conduct the defence of an accused, we
have seen in Art. XVI of Torquemada’s “Instructions” that he was under
the obligation to relinquish such defence the moment he realized the
guilt of his client, since by canon law an advocate was forbidden to
plead for a heretic in any court, civil or ecclesiastical, or in any
cause whatsoever--whether connected with heresy or any other matter.
On the subject of witnesses, it should be added to what already
has been said in the previous chapter that the Inquisition, whilst
admitting the testimony of any man, even though he should be
excommunicate or a heretic, so long as such testimony was adverse
to the accused, refused to admit witnesses for the defence who were
themselves tainted with heresy.
Since to bear witness in defence of a person charged with heresy might
result in the witness himself becoming suspect, it will be understood
that witnesses for the defence were not easily procured by the accused.