The Inquisition / A Critical and Historical Study of the Coercive Power of the Church

by E. Vacandard

CHAPTER VI FIFTH PERIOD GREGORY IX AND FREDERIC II THE ESTABLISHMENT OF THE MONASTIC INQUISITION

THE penal system codified by Innocent III was rather liberally interpreted in France and Italy. In order to make the French law agree with it, an oath was added to the coronation service from the time of Louis IX, whereby the King swore to exterminate, i.e., banish all heretics from his kingdom. We are inclined to interpret in this sense the laws of Louis VIII (1226) and Louis IX (April, 1228), for the south of France. The words referring to the punishment of heretics are a little vague: "Let them be punished," says Louis VIII, "with the punishment they deserve." "Animadversione debita puniantur. The other penalties specified are infamy and confiscation; in a word, all the consequences of banishment."[1]

[1] Ordonnances des roys de France, vol. xii, pp. 319, 320.

Louis IX re-enacted this law in the following terms: "We decree that our barons and magistrates … do their duty in prosecuting heretics." "De ipsis festinanter faciant quod debebunt."[1] These words in themselves are not very clear, and, if we were to interpret them by the customs of a few years later, we might think that they referred to the death penalty, even the stake; but comparing them with similar expressions used by Lucius III and Innocent III, we see that they imply merely the penalty of banishment.

[2] Ibid., vol. i, p. 51; Labbe, Concilia, vol. vii, col. 171.

However, a canon of the Council of Toulouse in 1229 seems to make the meaning of these words clear, at least for the future. It decreed that all heretics and their abettors are to be brought to the nobles and the magistrates to receive due punishment, ut animadversione debita puniantur. But it adds that "heretics, who, through fear of death or any other cause, except their own free will, return to the faith, are to be imprisoned by the bishop of the city to do penance, that they may not corrupt others;" the bishop is to provide for their needs out of the property confiscated.[1] The fear of death here seems to imply that the animadversione debita meant the death penalty. That would prove the elasticity of the formula. At first it was a legal penalty which custom interpreted to mean banishment and confiscation; later on it meant chiefly the death penalty; and finally it meant solely the penalty of the stake. At any rate, this canon of the Council of Toulouse must be kept in mind; for we will soon see Pope Gregory IX quoting it.

[1] D'Achery, Spicilegium, in-fol., vol. i, p. 711.

In Italy, Frederic II promulgated on November 22, 1220, an imperial law which, in accordance with the pontifical decree of March 25, 1199, and the Lateran Council of 1215, condemned heretics to every form of banishment, to perpetual infamy, together with the confiscation of their property, and the annulment of all their civil acts and powers. It is evident that the emperor was influenced by Innocent III, for, having declared that the children of heretics could not inherit their father's property, he adds a phrase borrowed from the papal decree of 1199, viz., "that to offend the divine majesty was a far greater crime than to offend the majesty of the emperor."[1]

[1] Monum. Germaniæ, Leges, sect. iv, vol. ii, pp. 107-109.

This at once put heresy on a par with treason, and consequently called for a severer punishment than the law actually decreed. We will soon see others draw the logical conclusion from the emperor's comparison, and enact the death penalty for heresy.

The legates of Pope Honorius were empowered to introduce the canonical and imperial legislation into the statutes of the Italian cities, which hitherto had not been at all anxious to take any measures whatever against heretics. They succeeded in Bergamo, Piacenza, and Mantua in 1221; and in Brescia in 1225. In 1226, the emperor himself ordered the podestà of Pavia to banish all heretics from the city limits. About the year 1230, therefore, it was the generally accepted law throughout all Italy (recall what we have said above about Faenza, Florence, etc.) to banish all heretics, confiscate their property, and demolish their houses.

Two years had hardly elapsed when, through the joint efforts of Frederic II and Gregory IX, the death penalty of the stake was substituted for banishment; Guala, a Dominican, seems to leave been the prime mover in bringing about this change.

Frederic II, influenced by the jurists who were reviving the old Roman law, prolmulgated a law for Lombardy in 1224, which condemned heretics to the stake, or at least to have their tongues cut out.[1] This penalty of the stake was common—if not legal—in Germany. For instance, we read of the people of Strasburg burning about eighty heretics about the year 1212[2], and we could easily cite other similar executions.[3] The emperor, therefore, merely brought the use of the stake from Germany into Italy. Indeed it is very doubtful whether this law was in operation before 1230.

[1] A Constitution sent to the Archbishop of Magdeburg, in the Mon. Germ., Leges, sect. iv, vol. ii, p. 126. [2] Annales Marbacenses, ad ann. 1215, in the Mon. Germ. SS., vol. xvii, p. 174. . [3] Cf. Julien Havet, op. cit., pp. 143, 144.

But in that year, Guala, the Dominican, who had become Bishop of Brescia, used his authority to enact for his episcopal city the most severe laws against heresy. The podestà of the city had to swear that he would prosecute heretics as Manicheans and traitors, according to both the canon and the civil law, especially in view of Frederic's law of 1224. Innocent III's comparison between heretics and traitors, and between the Cathari and the Manicheans, now bore fruit. Traitors deserved the death penalty, while the old Roman law sent the Manicheans to the stake; accordingly Guala maintained that all heretics deserved the stake.

Pope Gregory IX adopted this stern attitude, probably under the influence of the Bishop of Brescia, with whom he was in frequent correspondence.[1] The imperial law of 1224 was inscribed in 1230 or 1231 upon the papal register, where it figures as number 103 of the fourth year of Gregory's pontificate. The Pope then tried to enforce it, beginning with the city of Rome. He enacted a law in February, 1231, ordering, as the Council of Toulouse had done in 1229, heretics condemned by the Church to be handed over to the secular arm, to receive the punishment they deserved, animadversio debita. All who abjured and accepted a fitting penance were to be imprisoned for life, without prejudice to the other penalties for heresy, such as confiscation.[2]

[1] Gregory IX was four years Pope before he enacted these new laws.

[2] Cap. ii, Mon. Germ., Leges, sect. iv, vol. ii, p. 196.

About the same time, Annibale, the Senator of Rome, established the new jurisprudence of the Church in the eternal city. Every year, on taking office, the Senator was to banish (diffidare) all heretics. All who refused to leave the city were, eight days after their condemnation, to receive the punishment they deserved. The penalty, animadversio debita, is not specified, as if every one knew what was meant.

Inasmuch as reluctant heretics were imprisoned for life, it seems certain that the severer penalty reserved for obstinate heretics must have been the death penalty of the stake, for that was the mode of punishment decreed by the imperial law of 1224, which had just been copied on the registers of the papal chancery. But we are not left to mere conjecture. In February, 1231, a number of Patarins were arrested in Rome; those who refused to abjure were sent to the stake, while those who did abjure were sent to Monte Cassino and Cava to do penance. This case tells us instantly how we are to interpret the animadversio debita of contemporary documents.

Frederic II exercised an undeniable influence over Gregory IX, and the Pope in turn influenced the emperor. Gregory wrote denouncing the many heretics who swarmed throughout the kingdom of Sicily (the two Sicilies), especially in Naples and Aversa, urging him to prosecute them with vigor. Frederic obeyed. He was then preparing his Sicilian Code, which appeared at Amalfi in August, 1231. The first law, Inconsutilem tunicam, was against heretics. The emperor did not have to consult any one about the penalty to be decreed against heresy; he had merely to copy his own law, enacted in Lombardy in 1224. This new law declared heresy a crime against society on a par with treason, and liable to the same penalty. And that the law might not be a dead letter for lack of accusers, the state officials were commanded to prosecute it just as they would any other crime. This was in reality the beginning of the Inquisition. All suspects were to be tried by an ecclesiastical tribunal, and if, being declared guilty, they refuse to abjure, they were to be burned in the presence of the people.[1]

[1] Constitut. Sicil., i, 3, in Eymeric, Directorium inquisitorum, Appendix, p. 14.

Once started on the road to severity, Frederic II did not stop. To aid Gregory IX in suppressing heresy, he enacted at Ravenna, in 1237, an imperial law condemning all heretics to death.[1] The kind of death was not indicated. But every one knew that the common German custom of burning heretics at the stake had now become the law. For by three previous laws, May 14, 1238, June 26, 1238, and February 22, 1239, the emperor had declared that the Sicilian Code and the law of Ravenna were binding upon all his subjects; the law of June 26, 1238, merely promulgated these other laws throughout the kingdom of Arles and Vienne. Henceforth all uncertainty was at an end. The legal punishment for heretics throughout the empire was death at the stake.

[1] Mon. Germ., Leges, sect. iv, vol. ii, pp. 196.

Gregory IX did not wait for these laws to be enacted to carry out his intentions.

As early as 1231 he tried to have the cities of Italy and Germany adopt the civil and canonical laws in vogue at Rome against heresy, and he was the first to inaugurate that particular method of prosecution, the permanent tribunal of the Inquisition.

We possess some of the letters which he wrote in June, 1231, urging the bishops and archbishops to further his plans. He did not meet with much success, however, although the Dominicans and the Friars Minor did their best to help him. Still some cities like Milan, Verona, Piacenza and Vercelli adopted the measures of persecution which he proposed. At Milan, Peter of Verona, a Dominican, on September 15, 1233, had the laws of the Pope and the Senator of Rome inscribed in the city's statutes. The animadversio debita was henceforth interpreted to mean the penalty of the stake. "In this year," writes a chronicler of the time, "the people of Milan began to burn heretics." In the month of July, sixty heretics were sent to the stake at Verona. The podestà of Piacenza sent to the Pope the heretics he had arrested. Vercelli, at the instance of the Franciscan, Henry of Milan, incorporated in 1233 into its statutes the law of the Senator of Rome and the imperial law of 1224; it, however, omitted in the last named law the clause which decreed the penalty of cutting out the tongue. In Germany, the Dominican, Conrad of Marburg, was particularly active, in virtue of his commission from Gregory IX. In accordance with the imperial law, we find him sentencing to the stake a great number of heretics.

It may be admitted, however, that in his excessive zeal he even went beyond the desires of the sovereign pontiff. Gregory IX did not find everywhere so marked an eagerness to carry out his wishes. A number of the cities of Italy for a long time continued to punish obstinate heretics according to the penal code of Innocent III, i.e., by banishment and confiscation.

That the penalty of the stake was used at this time in France is proved by the burning of one hundred and eighty-three Bulgarians or Bugres at Mont-Wimer in 1239 and by two important documents, the Établissements de Saint Louis and the Coutumes de Beauvaisis.

"As soon as the ecclesiastical judge has discovered, after due examination, that the suspect is a heretic, he must hand him over to the secular arm; and the secular judge must send him to the stake."[1] Beaumanoir says the same thing: "In such a case, the secular court must aid the Church; for when the Church condemns any one as a heretic, she is obliged to hand him over to the secular arm to be sent to the stake; for she herself cannot put any one to death."[2]

[1] Établissements de Saint Louis, ch. cxxiii.

[2] Coutumes de Beauvaisis, xi, 2; cf. xxx, 11, ed. Beugnot, vol. i, pp. 157, 413.

It is a question whether this legislation is merely the codification of the custom introduced by popular uprisings against heresy and by certain royal decrees, or whether it owes its origin to the law of Frederic II which Gregory IX tried to enforce in France, as he had done in Germany and Italy. This second hypothesis is hardly probable. The tribunals of the Inquisition did not have to import into France the penalty of the stake; they found it already established in both central and northern France.

In fact, Gregory IX urged everywhere the enforcement of the existing laws against heresy, and where none existed he introduced a very severe system of prosecution. He was the first, moreover, to establish an extraordinary and permanent tribunal for heresy trials—an institution which afterwards became known as the monastic Inquisition.

. . . . . . . .

The prosecution and the punishment of heretics in every diocese was one of the chief duties of the bishops, the natural defenders of orthodoxy. While heresy appeared at occasional intervals, they had little or no difficulty in fulfilling their duty. But when the Cathari and the Patazins had sprung up everywhere, especially in southern Italy and France and northern Spain, the secrecy of their movements made the task of the bishop extremely hard and complicated. Rome soon perceived that they were not very zealous in prosecuting heresy. To put an end to this neglect, Lucius III, jointly with the Emperor Frederic Barbarossa and the bishops of his court, enacted a decretal at Verona in 1184, regulating the episcopal inquisition.

All bishops and archbishops were commanded to visit personally once or twice a year, or to empower their archdeacons or other clerics to visit, every parish in which heresy was thought to exist. They were to compel two or three trustworthy men, or, if need be, all the inhabitants of the city, to swear that they would denounce every suspect who attended secret assemblies, or whose manner of living differed from that of the ordinary Catholic. After the bishop had questioned all who had been brought before his tribunal, he was empowered to punish them as he deemed fit, unless the accused succeeded in establishing their innocence. All who superstitiously refused to take the required oath (we have seen how the Cathari considered it criminal to take an oath) were to be condemned and punished as heretics, and if they refused to abjure they were handed over to the secular arm.[1] This was an attempt to recall the bishops to a sense of their duty. The Lateran Council of 1215 re-enacted the laws of Lucius III; and to ensure their enforcement it decreed that every bishop who neglected his duty should be deposed, and another consecrated in his place.[2] The Council of Narbonne in 1227 likewise ordered the bishop to appoint synodal witnesses (testes synodales) in every parish to prosecute heretics.[3] But all these decrees, although properly countersigned and placed in the archives, remained practically a dead letter. In the first place it was very difficult to obtain the synodal witnesses. And again, as a contemporary bishop, Lunas de Tuy, assures us, the bishops for the most part were not at all anxious to prosecute heresy. When reproached for their inaction they replied: "How can we condemn those who are neither convicted nor confessed?"[4]

[1] Lucius III, Ep. clxxl, Migne, P.L., vol. cci, col. 1297 and seq.

[2] The Bull Excommunicamus, Decretals, cap. xiii, in fine, De hæreticis, lib. v, tit. vii.

[3] Can. 14, Labbe, Concilia, vol. xi, pars i, col. 307, 308.

[4] Lucas Tudensis, De altera vita fideique controversiis adversus Albigensium errores, cap. xix, in the Bibliotheca Patrum, 4 ed. vol. iv, col. 575-714. Lucas was Bishop of Tuy in Galicia, from 1239 to 1249.

The Popes, as the rulers of Christendom, tried to make up for the indifference of the bishops by sending their legates to hunt for the Cathari in their most hidden retreats. But they soon realized that this legatine inquisition was ineffective.[1]

[1] Cf. Lea, op. cit., vol. i, p. 315 and seq.

"Bishop and legate," writes Lea, "were alike unequal to the task of discovering those who carefully shrouded themselves under the cloak of the most orthodox observance; and when by chance a nest of heretics was brought to light, the learning and skill of the average Ordinary failed to elicit a confession from those who professed the most entire accord with the teachings of Rome. In the absence of overt acts, it was difficult to reach the secret thoughts of the sectary. Trained experts were needed whose sole business it should be to unearth the offenders, and extort a confession of their guilt."

At an opportune moment, therefore, two mendicant orders, the Dominicans and the Franciscans, were instituted to meet the new needs of the Church. Both orders devoted themselves to preaching; the Dominicans were especially learned in the ecclesiastical sciences, i.e., canon law and theology.

"The establishment of these orders," continues Lea, "seemed a providential interposition to supply the Church of Christ with what it most sorely needed. As the necessity grew apparent of special and permanent tribunals, devoted exclusively to the widespread sin of heresy, there was every reason why they should be wholly free from the local jealousies and enmities which might tend to the prejudice of the innocent, or the local favoritism which might connive at the escape of the guilty. If, in addition to this freedom from local partialities, the examiners and judges were men specially trained to the detection and conversion of the heretics; if also, they had by irrevocable vows renounced the world; if they could acquire no wealth, and were dead to the enticement of pleasure, every guarantee seemed to be afforded that their momentous duties would be fulfilled with the strictest justice—that while the purity of the faith would be protected, there would be no unnecessary oppression or cruelty or persecution dictated by private interests and personal revenge. Their unlimited popularity was also a warrant that they would receive far more efficient assistance in their arduous labors than could be expected by the bishops, whose position was generally that of antagonism to their flocks, and to the petty seigneurs and powerful barons whose aid was indispensable."[1]

[1] Lea, op. cit., pp. 318, 319.

Gregory IX fully understood the help that the Dominicans and
Franciscans could render him as agents of the Inquisition throughout
Christendom.

It is probable that, the Senator of Rome refers to them in his oath in 1231, when he speaks of the Inquisitores datos ab Ecclesia.[1] Frederic II, in his law of 1232, also mentions the _Inquisitores ab apostolica sede datos.[2] The Dominican Albéric traveled through Lombardy in November, 1232, with the title of _Inquisitor hereticæ pravitatis.[3] In 1231 a similar commission was entrusted to the Dominicans of Freisach and to the famous Conrad of Marburg. Finally, to quote but one more instance, Gregory IX, in 1233, wrote an eloquent letter to the bishops of southern France in which he said: "We, seeing you engrossed in the whirlwind of cares, and scarce able to breathe in the pressure of overwhelming anxieties, think it well to divide your burdens, that they may be more easily borne. We have therefore determined to send preaching friars against the heretics of France and the adjoining provinces, and we beg, warn, and exhort you, ordering you, as you reverence the Holy See, to receive them kindly, and to treat them well, giving them in this as in all else, favor, counsel, and aid, that they may fulfill their office."

[1] Raynaldi, Annales, ad ann. 1231, sect. 16, 17.

[2] Cap. iii, in the Mon. Germ., Leges, sect. iv, vol. ii, p. 196.

[3] Potthast, Regesta Roman. Pontif., no. 904, 1.

Their duties are outlined in a letter of Gregory IX to Conrad of Marburg, October 11, 1231: "When you arrive in a city, summon the bishops, clergy and people, and preach a solemn sermon on faith; then select certain men of good repute to help you in trying the heretics and suspects denounced before your tribunal. All who on examination are found guilty or suspected of heresy must promise to absolutely obey the commands of the Church; if they refuse, you must prosecute them, according to the statutes which we have recently promulgated." We have in these instructions all the procedure of the Inquisition: the time of grace; the call for witnesses and their testimony; the Interrogation of the Accused; the reconciliation of repentant heretics; the condemnation of obdurate heretics.

Each detail of this procedure calls for a few words of explanation.

The Inquisitor first summoned every heretic of the city to appear before him within a certain fixed time, which as a rule did not exceed thirty days. This period was called "the time of grace" (tempus gratiæ). The heretics who abjured during this period were treated with leniency. If secret heretics, they were dismissed with only a slight secret penance; if public heretics, they were exempted from the penalties of death and life imprisonment, and sentenced either to make a short pilgrimage, or to undergo one of the ordinary canonical penances.

If the heretics failed to come forward of their own accord, they were to be denounced by the Catholic people. At first the number of witnesses required to make an accusation valid was not determined; later on two were declared necessary. In the beginning, the Inquisition could only accept the testimony of men and women of good repute; and the Church for a long time maintained that no one should be admitted as an accuser who was a heretic, was excommunicated, a homicide, a thief, a sorcerer, a diviner, or the bearer of false witness. But her hatred of heresy led her later on to set aside this law, when the faith was in question. As early as the twelfth century, Gratian had declared that the testimony of infamous and heretical witnesses might be accepted in trials for heresy.[1]

[1] Pars ii, Causa ii, quaest. vii, cap. xxii; Causa vi, quaest. i, cap. xix.

The edicts of Frederic II declared that heretics could not testify in the courts, but this disability was removed when they were called upon to testify against other suspects.[1] In the beginning, the Inquisitors were loath to accept such testimony. But in 1261 Alexander IV assured them that it was lawful to do so.[2] Henceforth the testimony of a heretic was considered valid, although it was always left to the discretion of the Inquisition to reject it at will. This principle was finally incorporated into the canon law, and was enforced by constant practice. All legal exceptions were henceforth declared inoperative except that of moral enmity.[3]

[1] Historia diplomatica Frederici II, vol. iv, pp. 299, 300.

[2] Bull Consuluit, of January 23, 1261, in Eymeric, Directorium inquisitorum, Appendix, p. 40.

[3] Eymeric, ibid., 3a pars, quæst. lxvii, pp. 606, 607. Pegna, ibid., pp. 607, 609, declares that great cruelty or even insulting words—e.g., to call a man cornutus or a woman meretrix—might come under the head of enmity, and invalidate a man's testimony.

Witnesses for the defence rarely presented themselves. Very seldom do we come across any mention of them. This is readily understood, for they would almost inevitably have been suspected as accomplices and abettors of heresy. For the same reason, the accused were practically denied the help of counsel. Innocent III had forbidden advocates and scriveners to lend aid or counsel to heretics and their abettors.[1] This prohibition, which in the mind of the Pope was intended only for defiant and acknowledged heretics, was gradually extended to every suspect who was striving to prove his innocence.[2]

[1] Decretals, cap. xi, De hæreticis, lib.. v, tit. vii.

[2] Eymeric, Directorium inquisitorum, 3a pars, quaest. xxxix, p. 565; cf. 446. Sometimes, however, the accused was granted counsel, but juxta juris formam ac stylum et usum officii Inquisitionis; cf. Vidal, Le tribunal d'Inquisition, in the Annales de Saint Louis des Français, vol. ix (1905), p. 299, note. Eymeric himself grants one (Directorium, pp. 451-453). But this lawyer was merely to persuade his client to confess his heresy; he was rather the lawyer of the court than of the accused. Vidal, op. cit., pp. 302, 303. Pegna, however, says (in Eymeric Directorium, 2a pars, ch. xi, Comm. 10) that in his time the accused was allowed counsel, if he were only suspected of heresy. Cf. Tanon, op. cit., pp. 400, 401.

Heretics or suspects, therefore, denounced to the Inquisition generally found themselves without counsel before their judges.

They personally had to answer the various charges of the indictment (capitula) made against them. It certainly would have been a great help to them, to have known 'the names of their accusers. But the fear—well-founded it was true[1]—that the accused or their friends would revenge themselves on their accusers, induced the Inquisitors to withhold the names of the witnesses.[2] The only way in which the prisoner could invalidate the testimony against him was to name all his mortal enemies. If his accusers happened to be among them, their testimony was thrown out of court.[3] But otherwise, he was obliged to prove the falsity of the accusations against him—a practically impossible undertaking. For if two witnesses, considered of good repute by the Inquisitor, agreed in accusing the prisoner, his fate was at once settled; whether he confessed or not, he was declared a heretic.

[1] Guillem Pelhisse tells us that the Cathari sometimes killed those who had denounced their brethren. Chronique, ed. Douai, p. 90. A certain Arnold Dominici, who had denounced seven heretics, was killed at night in his bed by "the Believers." Ibid., pp. 98, 99.

[2] Eymeric, Directorium, 3a pars, q. 72. The law on this point varied from time to time. When Boniface VIII incorporated into the canon law the rule of withholding the names of witnesses, he expressly said that they might be produced, if there was no danger in doing so. Cap. 20, Sexto v, 2.

[3] Eymeric, Directorium, 3a pars, De defensionibus reorum, p. 446 and seq.

After the prisoner had been found guilty, he could choose one of two things; he could abjure his heresy and manifest his repentance by accepting the penance imposed by his judge, or he could obstinately persist either in his denial or profession of heresy, accepting resolutely all the consequences of such an attitude.

If the heretic abjured he knelt before the Inquisitor as a penitent before his confessor. He had no reason to fear his judge. For, properly speaking, he did not inflict punishment.

"The mission of the Inquisition," writes Lea, "was to save men's souls; to recall them to the way of salvation, and to assign salutary penance to those who sought it, like a father-confessor with his penitent. Its sentences, therefore, were not like those of an earthly judge, the retaliation of society on the wrongdoer, or deterrent examples to prevent the spread of crime; they were simply imposed for the benefit of the erring soul, to wash away its sin. The Inquisitors themselves habitually speak of their ministrations in this sense."[1]

[1] Lea, op. cit., p. 459.

But "the sin of heresy was too grave to be expiated simply by contrition and amendment."[1] The Inquisitor, therefore, pointed out other means of expiation: "The penances customarily imposed by the Inquisition were comparatively few in number. They consisted, firstly, of pious observances—recitation of prayers, frequenting of churches, the discipline, fasting, pilgrimages, and fines nominally for pious uses,—such as a confessor might impose on his ordinary penitents." These were for offences of trifling import. "Next in grade are the poenae confusibiles,—the humiliating and degrading penances, of which the most important was the wearing of yellow crosses sewed upon the garments; and, finally, the severest punishment among those strictly within the competence of the Holy Office, the murus or prison."[2]

[1] Lea, ibid., p. 463.

[2] Lea, ibid., p. 462.

If the heretic refused to abjure, his obduracy put an end to the judge's leniency, and withdrew him at once from his jurisdiction.

"The Inquisitor never condemned to death, but merely withdrew the protection of the Church from the hardened and impenitent sinner who afforded no hope of conversion, or from him who showed by relapse that there was no trust to be placed in his pretended repentance."[1]

[1] Lea, ibid., p. 460.

It was at this juncture that the State intervened. The ecclesiastical judge handed over the heretic to the secular arm, which simply enforced the legal penalty of the stake. However, the law allowed the heretic to abjure even at the foot of the stake; in that case his sentence was commuted to life imprisonment.

It is hard to conceive of a greater responsibility than that of a mediæval Inquisitor. The life or death of the heretic was practically at his disposal. The Church, therefore, required him to possess in a pre-eminent degree the qualities of an impartial judge. Bernard Gui, the most experienced Inquisitor of his time (1308-1323), thus paints for us the portrait of the ideal Inquisitor: "He should be diligent and fervent in his zeal for religious truth, for the salvation of souls, and for the destruction of heresy. He should always be calm in times of trial and difficulty, and never give way to outbursts of anger or temper. He should be a brave man, ready to face death if necessary, but while never cowardly running from danger, he should never be foolhardy rushing into it. He should be unmoved by the entreaties or the bribes of those who appear before his tribunal; still he must not harden his heart to the point of refusing to delay or mitigate punishment, as circumstances may require from time to time.

"In doubtful cases, he should be very careful not to believe too easily what may appear probable, and yet in reality is false; nor, on the other hand, should he stubbornly refuse to believe what may appear improbable, and yet is frequently true. He should zealously discuss and examine every case, so as to be sure to make a just decision…. Let the love of truth and mercy, the special qualities of every good judge, shine in his countenance, and let his sentences never be prompted by avarice or cruelty."[1]

[1] Practica Inquisitionis, pars 6a, ed. Douais, 1886, pp. 231-233.

This portrait corresponds to the idea that Gregory IX had of the true Inquisitor. In the instructions which he gave to the terrible Conrad of Marburg, October 21, 1223, he took good care to warn him to be prudent as well as zealous: "Punish if you will," he said, "the wicked and perverse, but see that no innocent person suffers a your hands:" ut puniatur sic temeritas perversorum, quod innocentiæ puritas non lædatur. Gregory IX cannot be accused of injustice, but he will ever be remembered as the Pope who established the Inquisition as a permanent tribunal, and did his utmost to enforce everywhere the death penalty for heresy.

This Pope was, in certain respects, a very slave to the letter of the law. The protests of St. Augustine and many other early Fathers did not affect him in the least. In the beginning, while he was legate, he merely insisted upon the enforcement of the penal code of Innocent III, which did not decree any punishment severer than banishment, but he soon began to regard heresy as a crime similar to treason, and therefore subject to the same penalty, death. Certain ecclesiastics of his court with extremely logical minds, and rulers like Pedro II of Aragon and Frederic II, had reached the same conclusion, even before he did. Finally, in the fourth year of his pontificate, and undoubtedly after mature deliberation, he decided to compel the princes and the podestà to enforce the law condemning heretics to the stake.

He did his utmost to bring this about. He did not forget, however, that the Church could not concern herself in sentences of death. In fact, his law of 1231 decrees that: "Heretics condemned by the Church are to be handed over to the secular courts to receive due punishment (animadversio debita)."[1] The emperor Frederic II had the same notion of the distinction between the two powers. His law of 1224 points out carefully that heretics convicted by an ecclesiastical trial are to be burned in the name of the civil authority: auctoritate nostra ignis judicio concremandus.[2] The imperial law of 1232 likewise declares that heretics condemned by the Church are to be brought before a secular tribunal to receive the punishment they deserve.[3] This explains why Gregory IX did not believe that in handing over heretics to the secular arm he participated directly or indirectly in a death sentence.[4] The tribunals of the Inquisition which he established in no way modified this concept of ecclesiastical justice. The Papacy, the guardian of orthodoxy for the universal Church, simply found that the Dominicans and the Franciscans were more docile instruments than the episcopate for the suppresion of heresy. But whether the Inquisition was under the direction of the bishops or the monks, it could have been conducted on the same lines.

[1] Decretales, cap. xv, De Hæreticis, lib. v, tit. vii.

[2] Mon. Germ., Leges, sect. iv, vol. ii, p. 126.

[3] Ibid., p. 196.

[4] Lea writes (op. cit., vol. i, p. 536, note): "Gregory IX had no scruple in asserting the duty of the Church to shed the blood of heretics." In a brief of 1234 to the Archbishop of Sens, he says: Nec enim decuit Apostolicam Sedem, in oculis suis cum Madianita coeunte Judæo, manum suam a sanguine prohibere, ne si secus ageret non custodire populum Israel … videretur. Ripoll, i, 66. This is certainly a serious charge, but the citation he gives implies something altogether different. Lea has been deceived himself, and in turn has misled his readers, by a comparison which he mistook for a doctrinal document. The context, we think, clearly shows that the Pope was making a comparison between the Holy See and the Jewish leader Phinees, who had slain an Israelite and a harlot of Madian, in the very act of their crime (Num. xxv. 6, 7). That does not imply that the Church use the same weapons. Even if the comparison is not a very happy one, still we must not exaggerate its import. The Pope's letter did not even mention the execution of heretics. Ripoll, Bullarium ord. FF. Prædicatorum, vol. 1, p. 66.

But, as a matter of fact, it unfortunately changed completely under the direction of the monks. The change effected by them in the ecclesiastical procedure resulted wholly to the detriment of the accused. The safeguards for their defense were in part done away with. A pretense was made to satisfy the demands of justice by requiring that the Inquisitors be prudent and impartial judges. But this made everything depend upon individuals, whereas the law itself should have been just and impartial. In this respect, the criminal procedure of the Inquisition is markedly inferior to the criminal procedure of the Middle Ages.