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