CHAPTER II - THE BEGINNINGS OF THE INQUISITION
Originally jurisdiction over heresy belonged to the ordinary ecclesiastical courts, heresy being classed with such other offences as adultery and breach of contract, which came under ecclesiastical purview.[283] The special tribunal of the Inquisition came into being because these courts proved defective for the trial of heresy. In the first place, the new offence became so frequent that the ordinary courts were unable to support the large additional burden without impairing their efficiency in the performance of their original duties.
How, then, did it happen that whereas heresy had become a formidable danger in the twelfth century, the institution of the special tribunal did not take place until the thirteenth? The suggestion appears plausible that there must have been some other cause besides the mere spread of heresy to account for the birth of the Inquisition at that date.[284] The answer is that it took time for heresy to be recognized as sufficiently serious to warrant the creation of an entirely new organization, and before the magnitude of the task of repressing religious error was fully apprehended.[285] In the second place, the papacy during this period was much preoccupied with more pressing concerns, particularly the investiture question, which involved the supreme issue as to the pre-eminence of secular or spiritual authority in Christendom.
When once attention had been thoroughly arrested by the problem, the deficiencies of the existing spiritual courts for the new work became apparent. Overwork was by no means the only drawback. The character of the judges was at fault. Even after the Hildebrandine reforms, bishops still remained feudal barons with many inevitable secular distractions; archdeacons and other lesser officials were often venal and incapable.[286] In any case the very nature of diocesan authority militated against success. It was too purely local to be effective against offenders who could easily migrate from one part of the country to another. Even more serious was the lack on the part of the existing officials of special training and knowledge, especially in theology, which were found necessary, since heretics often evinced diabolical familiarity with the text of Scripture.[287] Lacking such special equipment and being badly pressed for time on a diocesan visitation, the bishop was apt to come to a hurried and arbitrary judgment, frequently falling back upon the device of the ordeal when the defendant pleaded ‘not guilty.’ Both the Councils of Rheims of 1157 and of Verona of 1184 ordered that suspects of heresy should be submitted to this test. But the method was never felt to be satisfactory, was strongly condemned by Ivo of Chartres and Alexander III, and so emphatically denounced by the Fourth Council of the Lateran in 1215 that it disappeared from the practice of lay as well as spiritual courts.
Another disadvantage under which the episcopal courts laboured in dealing with heresy was their procedure, that of Roman Law. There were two systems—those of denuntiatio and accusatio. In the former some person in authority—in ecclesiastical cases the archdeacon—brought forward a charge founded upon his own personal knowledge. In the latter the charge was based on information tendered by a private individual to the authorities. Owing to the fact that the archdeacon was a very busy man, the Church was largely dependent on the second method in the prosecution of heresy. But the average person had no inducement to lodge a charge. He was in danger of private vengeance if he did so; equally important, by Roman Law he was expected to prove his case, being in the event of failure liable to the same penalty which he had himself alleged against the accused. Seeing that, should he prove his case, he was entitled to the property of the prisoner either in whole or in part, this stipulation was a salutary and indeed necessary check, not only on malice but cupidity.[288] This mode of procedure, which though indicative of its origin in the rudimentary idea of private justice was certainly equitable, did not commend itself to the Church, once it had become determined upon the extirpation of heresy. The difficulty of obtaining convictions greatly increased when, instead of small isolated communities, the Church was faced by a great organization like Catharism, widespread and secret in its movements. It was clear that episcopal jurisdiction must be strengthened. The Edict of Verona was an attempt in this direction. It was resolved to make use for prosecution of common report, the public opinion of the locality. Archbishops and bishops were to visit in person, or through their archdeacons, once or even twice a year every parish in which heresy was supposed to exist, and were to compel men whom they thought of trustworthy character or, if they thought fit, all the inhabitants of the neighbourhood, to denounce those whose manner of living differed from that of good Catholics. Such bad characters were to purge themselves by a solemn oath on the gospels before the bishop (purgatio canonica); if they refused—and Cathari were likely to be unwilling owing to their views regarding oaths—their refusal was to be construed as tantamount to a confession of heresy.[289]
We have here a method of enforced delation, the bishop proceeding upon the evidence so obtained (diffamatio) without the formalities of the accusatio. In other words the bishops are to make an inquest, so that from this date, 1184, we have in existence an episcopal inquisition.[290] The decree does not appear to have been very effective, and after the Albigensian Crusades—it being necessary to follow that success by the institution of systematic prosecution of heresy for fear of the recurrence of trouble[291]—similar regulations were made by Councils, sitting at Avignon in 1209 and at Montpellier in 1215, also in the Fourth Council of the Lateran of the latter year. There was a new feature in the introduction of a priest in addition to a trustworthy layman as informer against heretics.[292] The Council of Narbonne (1227) went a step further in ordering the bishops to appoint in each parish testes synodales, to make diligent enquiry concerning heresy and other matters and give information to their bishops.[293] The phrase ‘synodal witness’ is new, though it may easily designate the same persons as those nominated by the previous councils. However this may be, the ‘synodal witnesses’ are entrusted with a new duty. They are not merely to inform, but to search out. This advance was to be anticipated; the informer easily blossoms out into the detective. Here we have a system of local Inquisition, which is enjoined again by a Council sitting at Toulouse two years later, which requires the synodal witnesses to visit all suspected houses and hiding-places.[294]
It is doubtful whether the orders of these two Councils were ever acted upon. In any case, not even the most well-intentioned reform of their procedure could make the episcopal courts satisfactory for the trial of heresy. The bishops are repeatedly urged to bestir themselves even on pain of deprivation.[295] The fact was that some special machinery had to be devised. On the other hand, the authorization of the system of Inquisition was of the utmost importance. It was fully recognized by Innocent III, who in his Decretals carefully distinguished it from the two other judicial methods of accusatio and denuntiatio.[296] Innocent was not thinking only, or perhaps mainly, of heresy in introducing a new judicial method—but of clerical reform. Even when the offence of a prelate was a matter of common notoriety it was difficult to bring the crime home to him when the system of accusatio required the concurrence of seventy-two witnesses. That system sheltered the high in office; and it was therefore, from the reformer’s point of view, defective. The greatest of the popes had given his imprimatur to a system, which beginning in the ecclesiastical courts, was, owing to its manifest advantages, destined to make a triumphal progress in the temporal courts also, eventually supplanting the system of accusatio altogether.
The definite starting-point of the Inquisition has been attributed to many dates. One enthusiast went as far back as Creation, finding the first inquisitor in the Almighty Himself, and successors to Him in Jacob, Saul, David, Eli, Jesus Christ, John the Baptist and St. Peter among others.[297] Less ambitious authorities, content to go no further back than the Middle Ages, have discovered the starting-point in the legatine commission entrusted by Innocent III to Pierre de Castelnau, Arnaud of Citeaux and their colleagues.[298] Whether they, with their lieutenant St. Dominic, were inquisitors or not turns on the interpretation of the word.[299] In the loose general sense of searchers out, certainly they were—as others had been before them. The plain fact is, there were inquisitors before the Inquisition existed. But in the strict technical sense of officers of a tribunal specifically set apart for jurisdiction over heresy, they clearly were not.[300] The tribunal of the Inquisition was not in existence in the pontificate of Innocent III. On the other hand, we have by this time advanced a considerable distance on the road to the formation of a new tribunal. Heresy has been recognized as so dangerous as to justify the organization of a crusade against it. The bishops’ courts have been found so defective in dealing with heresy that the device has been adopted of sending special commissioners to try to do what they have failed to do. The method of judicial procedure by inquisitio in place of accusatio has been officially approved. It wants but one other step to bring us to the foundation of the permanent delegacy for the prosecution of heretical pravity, which is the Inquisition.
This step was taken by Pope Gregory IX, who may therefore legitimately be said to have founded the Inquisition. Both the episcopal courts and the experiment of the occasional legate had been insufficient. Gregory made use of a powerful weapon which came readily to hand in the two great Mendicant Orders. Recognizing their potential utility, Gregory, herein followed by Innocent IV, showered upon them all manner of special privileges and exemptions and bound them by this means peculiarly to the service of the papacy. They were pre-eminently fitted, as it happened, for the special service of prosecuting heresy. They were still young in the first white heat of a new enthusiasm, while their zeal and their purity made them both influential and popular. They were also often endowed—especially the Dominicans—with high intellectual gifts and early acquired a great reputation as subtle and learned theologians. Thus while their poverty, their single-mindedness and their good works were an answer to anti-sacerdotal attacks, their theological attainments enabled them to combat the dialectical arguments of the heterodox. The uniformity and permanence of inquisitorial practice came largely from the selection of the two orders of the Friars to undertake the jurisdiction over heresy. In so far, therefore, as the choice of a particular date or incident for the commencement of an institution can be otherwise than arbitrary, it is legitimate to fix upon the delegation by Gregory IX of jurisdictional powers almost exclusively to the members of the Franciscan and Dominican orders as marking the beginning of the Inquisition as an organized tribunal.
Actually the first delegation made by Pope Gregory in regard to heresy was made neither to a Franciscan nor a Dominican, but to a man notorious for his extraordinary relations with Saint Elizabeth of Hungary, namely Conrad of Marburg. Whatever his status to begin with, he certainly became a delegate possessed of very wide powers eventually. He was in fact an inquisitor in precisely the same sense as Pierre de Castelnau and Arnaud of Citeaux had been inquisitors; and the question of his precise authority has exactly the same bearing on the question of the beginnings of the tribunal of the Inquisition as the question of their authority—no more.[301]
Eight days after the bestowal of the commission upon Conrad, namely on June 20, 1227, Gregory entrusted another inquisitorial commission to a Dominican. This, however, is not the significant date. The decisive event is the addressing of two bulls to France in April 1233, the first to the bishops, the second to the Preaching Friars. The first explains that owing to ‘the whirlwind of cares’ and ‘the presence of overwhelming anxieties,’ under which the bishops labour, the Pope has thought it well to divide their burdens and has decided to send the Preaching Friars against the heretics of France. The bishops are earnestly exhorted to treat the Brothers kindly and lend them all assistance in the fulfilment of their office. The second, and by far the more important bull, addressed to the Friars, empowers them ‘to deprive clerks of their benefices for ever, and to proceed against them and all others without appeal, calling in the aid of the secular arm if necessary, and coercing opposition, if needful, with the censures of the Church, without appeal.’[302] Some have detected in these bulls an apologetic tone indicating uncertainty on Gregory’s part as to whether the bishops would acquiesce in this invasion of their powers, and it is also no doubt true that ‘the character of his instructions proves that he had no conception of what the invasion was to lead to.’[303] On the other hand, there is here the clear evidence of a matured conception, based upon the experience of the multiplication of special commissions to individual legates, of a permanent delegation.[304] By 1235 this system had penetrated not only through France, Toulouse and Burgundy, but also Lombardy, Sicily, Aragon, Brabant, Germany.[305]
The inquisitorial commissions entrusted to the Friars, it is important to note, did not involve the extinction of episcopal jurisdiction in matters of heresy. In 1234 Gregory is found threatening the bishops of the province of Narbonne, if they do not show due energy against heretics, and making no mention of the new authority.[306] As yet the friars-inquisitor are regarded only as a more efficient supplement to the ordinary ecclesiastical tribunals. Gregory intended that bishops and inquisitors should work together, and bishops had to concur in the friars’ sentences. Plainly there was not unnatural antagonism, bishops wishing to treat inquisitors simply as expert advisers, inquisitors aiming at becoming the real judges. In 1247 Innocent IV treats the bishops as the real judges: yet in the numerous sentences of the celebrated inquisitor, Bernard de Caux, recorded between 1246 and 1248, there is no trace of episcopal concurrence.[307] In 1248 the Council of Valence had to bring pressure upon bishops to observe the sentences of inquisitors.[308] Between 1250 and 1254 the director of the proceedings of the Carcassonne Inquisition who makes the interrogations and imposes the sentences is a bishop: but it is not certain whether he was acting in his episcopal capacity or as a special papal commissioner. Such commissions were rarely given to bishops, as the popes much preferred, as a rule, to use the friars. The root fact was that to perform his special duties efficiently an inquisitor needed to devote his entire time and attention to them: and thus, as it became more and more apparent that heresy was no mere ephemeral menace which could be stamped out once for all, but a lasting trouble which had constantly to be met, so the Inquisition, first regarded as a temporary expedient to deal with an emergency, developed into a permanent institution. So also the efforts of the bishops, either to retain the jurisdiction over heresy in their own ordinary courts or to superimpose their authority over the inquisitor in his extraordinary court, were alike doomed to failure. As a matter of fact, probably the average bishop was too much immersed in other cares and interests to trouble to secure his prerogative in the matter of heresy.[309] Thus it was that before the end of the thirteenth century the Inquisition had come to be an intrinsic part of the judicial organization of the Church.
The pontificate of Gregory IX is in more ways than one a critical period in the history of the repression of heresy. It saw the first clear authorization of the death penalty for the obdurate heretic. Capital punishment had at times been shown to be the popular remedy for heresy; it had sometimes been adopted by the secular arm, sometimes approved by the clergy. But it had not been legalized in the empire, formally sanctioned by the temporal law of the world, as the general rule of Christendom. The first public law of Europe enjoining it was the work of the Emperor Frederick II. That the most extraordinary member of the house of Hohenstaufen, being a man who despite a curious strain of superstition in him was a rationalist and a sceptic, should have been responsible for this legislation may at first sight appear astonishing. An Italian, not a German, brought up among the half Greek, half Saracen influences of Sicily, drawing his inspiration rather from Averrhoës and Arab free-thought than from any Christian source, amazingly versatile, poet, lover of learning, statesman, diplomatist, his outlook upon the world was altogether individual, his intellect powerful and singular, untrammelled by convention. He was a medley of strange contradictions: he protected Jews and Mussulmans; he persecuted heretics. The Averrhoïst heretics from Islam interested him, the heretics from Catholicism not at all.
On November 22, 1220, Frederick produced his first constitution for Lombardy.[310] This repealed the penalties of Frederick Barbarossa in his edict of 1184, confiscation of property and outlawry, penalties severe enough, because outlawry in the Middle Ages was a terrible punishment, putting the culprit at any man’s mercy. This first constitution appears to have been inspired by Honorius III.[311] A second constitution of March 1224, published at Catania for the whole of Lombardy, first introduced the death penalty—death at the stake; but at the discretion of the judge, the loss of the tongue might be substituted.[312] In 1231 in the Constitutions of Melfi, which applied indeed only to Sicily, this element of choice was no longer included, and the penalty was made absolutely death by fire. In 1238 this regulation was extended to the empire, being afterwards introduced into the Sachenspiegel and Schwabenspiegel of Germany.[313] Thus death by fire became the recognized punishment for heresy in the empire. In 1226 Louis IX issued ordinances prescribing severe punishments for heretics; but at the time the use of the stake was general in France, and it was formally accepted as the legal punishment in the Etablissements of Louis IX in 1270.[314]
In view of what Frederick II did in his Constitutions, some historians have placed upon his shoulders the full responsibility for the horrors of the stake. This is both unfair and unhistorical. The blame attaches to no single man. The fact of first giving sanction in civil law to death by burning is certainly important, but the importance can easily be exaggerated. Frederick was only giving legal recognition to the actual practice of France and Germany; only introducing what was customary elsewhere into Italy, where tolerance had on the whole been general. Some importance should also be attached to the revival of the study of Roman Law, which showed that Manichæans had suffered death in days before Constantine. In the part played by Frederick II we shall be wise to recognize not something catastrophic but rather a link among very many in a lengthy chain of development.[315] Nor must we forget the significance of the order that burnings are to take place ‘in conspectu populi.’ This is surely an answer to a popular demand that the execution of heretics should be made a public example, a salutary spectacle? The examination of the force of public opinion is almost always more fruitful than that of the motives of individuals, however powerful.
What was the attitude of the Church in its crusade against heresy towards the action of Frederick? Being crucial, the question is exceedingly controversial. There have been apologists for the Church who have argued that the whole blame for the burning of heretics rests with the secular power, that Gregory IX had a positive aversion to the idea, that Frederick II’s laws against heretics are to be regarded as an attempt to humiliate the Pope and wrest from the Church jurisdiction which properly belonged to it. This argument makes the establishment of the Inquisition a measure of self-defence, a strategic blow delivered in the great war between the secular and ecclesiastical authorities.[316]
This ingenious theory will not stand close examination. There is in the first place the prima facie probability that an unorthodox emperor, anxious to utilize the question of heresy in a conflict with the papacy, would rather protect than prosecute it. In the second place, there is really no evidence for discovering in Frederick’s action an elaborate Machiavellian device; while we have sufficient evidence that Gregory did approve the burning of heretics.[317] There seems clearly to have been clerical influence behind the constitutions. The constitution of 1224 has been ascribed to the influence of a certain German prelate, Albert, Archbishop of Magdeburg, imperial legate in Italy, who wanted to see heretics treated in Italy as they were in his own country, and who therefore induced the emperor to give legal sanction to the death penalty.[318] Even more significant would appear to have been the part played by the Spanish Dominicans, Guala and Raymond of Peñaforte. Guala was Bishop of Brescia in 1230, and Brescia was the first town to place among its municipal laws the Lombard Constitution of 1224. The Bishop was in constant communication with Gregory, and when Rome followed the example of Brescia, it is surmised, though it cannot be proved, that Guala was responsible for this, as also for the Constitution of 1231.[319] This is conjecture, and so is the alternative theory which attributes the legal establishment of the death sentence not so much to Guala as to Raymond.[320] Whatever may be the truth concerning clerical influence prior to the promulgation of the Constitutions, the question of the subsequent attitude of the Church towards them is not a matter of conjecture.
In his bull, Excommunicamus, Gregory orders that heretics, condemned by the Church, shall be handed over to the secular arm and punished by the merited penalty (‘puniantur animadversione debita’). What this punishment is, is not expressly mentioned, but inasmuch as all other possible penalties are mentioned by name—imprisonment, excommunication, infamy, deprivation of civil rights etc., we are left by a process of elimination with the death penalty as the only conceivable end for the obdurate heretic abandoned to the secular arm.[321] Only wilful blindness can misinterpret the phrase ‘animadversione debita,’ especially as its meaning seems to be forcibly illustrated by the practice of the Senator Annibaldi who ruled Rome in Gregory’s name. In 1231 he issued a decree, introducing the imperial constitution into the city and establishing that each senator, on admission into office, must pronounce the ban of the city against all heretics in it, seize upon all who are pointed out as heretics by the inquisitors and punish them within eight days from the passing of sentence. Here Annibaldi used the Pope’s euphemism, ‘merited penalty.’ The same year several heretics were seized in Rome, some imprisoned, but the obdurate burnt.[322]
If it may still be felt that there is some doubt regarding the personal feeling of Gregory IX about Frederick II’s action, there can be no doubt at all as to his successor, Innocent IV, who gave complete pontifical sanction to the Constitutions by inscribing them in extenso in a bull entitled Cum adversus haereticam pravitatem, issued in 1245.[323]
The Church did more than simply give its formal approval to secular legislation against heresy: it saw to it that the lay authority put its legislation into practice.
It was for the Church to seek out, arrest, examine and condemn the heretic; it was the function of the State to free the Church from the guilt of blood by arranging for the actual execution of the impenitents, the canon thus being reconciled with harsh necessity. Apportionment of its duties in the matter of heresy to the State by the Church was no new thing in the days of Gregory and Innocent. The resolutions of earlier councils had referred significantly to the danger of popular revolutions, did not the secular authority play its part, and had threatened that disobedient lords might find their lands and goods given away to others more zealous or more prudent.[324] The decree of Verona (1184) had claimed excommunication as the penalty for failure to execute the imperial laws (at that time those of Barbarossa) against heretics; and the Fourth Council of the Lateran, enjoining an oath upon all secular rulers that they will banish all heretics from their lands, declares their vassals to be absolved from fidelity in the case of non-compliance.[325]
Already, before the days of Innocent IV, it had been made perfectly plain that the Church not only desired and expected the execution by the secular authority of its own laws against heretics, but that it was prepared to use all available means to compel it to do so. Innocent IV placed the coping-stone upon this system by his famous bull issued to all the lay rulers of Italy in 1252, known as Ad extirpanda.[326] This bull is remarkable for the thorough and systematic nature of its provisions. To the end that the pest of heresy may be uprooted, all lay rulers are to swear to carry out the laws against heresy on pain of fine and of being held an infamous perjuror and fautor of heretics.[327] Every civil magistrate within three days of his entrance into office is to appoint twelve good Catholics, two notaries, two senators, two friars from the Prædicants, two from the Brothers Minor, whose duties are to search out heretics, seize their goods and hand them on to the bishop. These officials are to enjoy a variety of privileges and to be free from all interference in their work. The civil magistrate is to hand over all heretics within a fortnight of their capture either to the bishop or the inquisitors.[328] Those condemned are within five days of sentence to be dealt with by the secular arm in accordance with the Constitutions (of Frederick II). The secular authority is also required to inflict torture on those heretics who refused to confess or inculpate their confederates, to see to the exaction of fines and destruction of heretics’ houses, to keep lists of those defamed of heresy.[329] These statutes, and all others which might subsequently be added against heresy, are to be religiously preserved in the statute-books of every city, on pain of excommunication for any non-compliant official, of interdict for any recalcitrant city. No attempt must be made to alter these laws or to observe any other laws which may be found to be in contradiction to them.[330]
Various slight alterations and modifications were subsequently made in the terms of this all-important fulmination. But with only insignificant revisions it was reissued by Alexander IV in 1259, and in 1265 by Clement V, who, however, inserted the word ‘inquisitor’ in places where previously only bishops and friars had been designated. In the main the bull remained unaltered, a lasting monument both to the Church’s power in that age and of its attitude towards secular action with regard to heresy. It was for the Church to command where her interests were concerned; she expected to be obeyed and, in case of defiance, had the necessary force to compel obedience. Excommunication and interdict in those days were no empty words. To be placed outside the communion of the Church was even more than being outlawed from the Empire, equivalent to being placed outside civilization; it was to be deprived of all rights, made any man’s legitimate prey. And if excommunication was more injurious to the simple citizen than to the prince or noble, still the latter had much to fear. The ban of the Church relieved his vassals from their allegiance and was an invitation to his enemies to march to his despoil. In the eyes of the believer excommunication entailed something very much worse than even such material trouble and loss; it meant the exclusion from the greatest of means to salvation on earth, the imperilling of salvation in eternity.
There was, as a matter of fact, no reluctance on the part of the state to the task of persecuting heretics, as the secular legislation of Henry II of England, Barbarossa, Alfonso II and Pedro II of Aragon abundantly testifies. But few secular magistrates would be willing to incur so great a material and spiritual risk as excommunication merely for the sake of a few fanatical schismatics.
The argued justification of the now well-established system of persecution, of which Ad extirpanda is the coping-stone, we find in Thomas Aquinas. In the Church’s procedure in respect of heretics he sees proof of her deep mercy and charity. Her aim is the retrievement of the prodigal, his penitence and return to the fold. She aims not at punishment, but forgiveness. For the penitent all is well, only for the obdurate and those who have relapsed after reconciliation is there punishment. It is meet that these should suffer, for in her kindness to the individual the Church must not jeopardize the welfare of the whole community. Heresy is the most terrible of all offences. To corrupt the faith is a far worse crime than to corrupt the coinage.[331] The latter is an aid to our temporal existence, the former an absolute necessity for the eternal life of the soul. If then the coiner be deemed worthy of death, how much more the heretic! The argument of analogy is fortified by the text of Scripture. The methods of the Inquisition are found to be justified by Christ’s words: ‘If a man abide not in me, he is cast forth as a branch, and is withered, and they shall gather them and cast them into the fire and they are burned.’ Thus the sayings of the Founder of Christianity were made to sanction a system of cruelty utterly abhorrent to the whole tenor of His teaching.[332]