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

by E. Vacandard

CHAPTER VI SIXTH PERIOD DEVELOPMENT OF THE INQUISITION INNOCENT IV AND THE USE OF TORTURE

The successors of Gregory IX were not long in perceiving certain defects in the system of the Inquisition. They tried their best to remedy them, although their efforts were not always directed with the view of mitigating its rigor. We will indicate briefly their various decrees pertaining to the tribunals, the penalties and the procedure of the Inquisition.

In appointing the Dominicans and the Franciscans to suppress heresy, Gregory IX did not dream of abolishing the episcopal Inquisition. This was still occasionally carried on with its rival, whose procedure it finally adopted. Indeed no tribunal of the Inquisition could operate in a diocese without the permission of the Bishop, whom it was supposed to aid. But it was inevitable that the Inquisitors would in time encroach upon the episcopal authority, and relying upon their papal commission proceed to act as independent judges. This abuse frequently attracted the attention of the Popes, who, after some hesitation, finally settled the law on this point.

"If previous orders requiring it" (episcopal concurrence), writes Lea, "had not been treated with contempt, Innocent IV would not have been obliged, in 1254, to reiterate the instructions that no condemnations to death or life imprisonment should be uttered without consulting the Bishops; and in 1255 he enjoined Bishop and Inquisitor to interpret in consultation any obscurities in the laws against heresy, and to administer the lighter penalties of deprivation of office and preferment. This recognition of episcopal jurisdiction was annulled by Alexander IV, who, after some vacillation, in 1257 rendered the Inquisition independent by releasing it from the necessity of consulting with the Bishops even in cases of obstinate and confessed heretics, and this he repeated in 1260. Then there was a reaction. In 1262, Urban IV, in an elaborate code of instructions, formally revived the consultation in all cases involving the death penalty or perpetual imprisonment; and this was repeated by Clement IV in 1265. Either these instructions, however, were revoked in some subsequent enactment, or they soon fell into desuetude, for in 1273, Gregory X, after alluding to the action of Alexander IV in annulling consultation, proceeds to direct that Inquisitors in deciding upon sentences shall proceed in accordance with the counsel of the Bishops or their delegates, so that the episcopal authority might share in decisions of such moment."[1]

[1] Lea, op. cit., p. 335.

This decretal remained henceforth the law. But as the Inquisitors at times seemed to act as if it did not exist, Boniface VIII and Clement IV strengthened it by declaring null and void all grave sentences in which the Bishop had not been consulted.[1] The consultation, however, between the Bishop and Inquisitor could be conducted through delegates. In insisting upon this, the Popes proved that they were anxious to give the sentences of the Inquisition every possible guarantee of perfect justice.

[1] Sexto, lib. v, tit. ii, cap. 17, Per hoc; Clementin. lib v. tit. iii, cap. i, Multorum querela.

Another way in which the Popes labored to render the sentences of the Inquisition just, was the institution of experts. As the questions which arose before the tribunals in matters of heresy were often very complex, "it was soon found requisite to associate with the Inquisitors in the rendering of sentences men versed in the civil and canon law, which had by this time become an intricate study, requiring the devotion of a lifetime. Accordingly they were empowered to call in experts to deliberate with them over the evidence, and advise with them on the sentence to be rendered."[1]

[1] Lea, op. cit., vol. i. p. 388.

The official records of the sentences of the Inquisition frequently mention the presence of these experts, periti and boni viri. Their number, which varied according to circumstances, was generally large. At a consultation called by the Inquisitors in January, 1329, at the Bishop's palace in Pamiers, there were thirty-five present, nine of whom were jurisconsults; and at another in September, 1329, there were fifty-one present, twenty of whom were civil lawyers.

"At a comparatively early date, the practice was adopted of allowing a number of culprits to accumulate, whose fate was determined and announced in a solemn Sermo or auto-da-fé. In the final shape which the assembly of counsellors assumed, we find it summoned to meet on Fridays, the Sermo always taking place on Sundays. When the number of criminals was large, there was not much time for deliberation in special cases. The assessors were always to be jurists and Mendicant Friars, selected by the Inquisitor in such numbers as he saw fit. They were severally sworn on the Gospels to secrecy, and to give good and wise counsel, each one according to his conscience, and to the knowledge vouchsafed him by God. The Inquisitor then read over his summary of each case, sometimes withholding the name of the accused, and they voted the sentence, "Penance at the discretion of the Inquisitor"—"that person is to be imprisoned, or abandoned to the secular arm"—while the Gospels lay on the table to so that our judgment might come from the face of God, and our eyes might see justice."[1]

[1] Lea, op. cit., vol. i, p. 389.

We have here the beginnings of our modern jury. As a rule, the Inquisitors followed the advice of their counsellors, save when they themselves favored a less severe sentence. The labor of these experts was considerable, and often lasted several days. "A brief summary of each case was submitted to them. Eymeric maintained that the whole case ought to be submitted to them; and that was undoubtedly the common practice. But Pegna, on the other hand, thought it was better to withhold from the assessors the names of both the witnesses and the prisoners. He declares that this was the common practice of the Inquisition, at least as far as the names were concerned. This was also the practice of the Inquisitors of southern France, as Bernard Gui tells us. The majority of the counsellors received a brief summary of the case, the names being withheld. Only a very few of them were deemed worthy to read the full text of all the interrogatories."[1]

[1] Tanon, op. cit., p. 421.

We can readily see how the periti or boni viri, who were called upon to decide the guilt or innocence of the accused from evidence considered in the abstract, without any knowledge of the prisoners' names or motives, could easily make mistakes. In fact, they did not have data enough to enable them to decide a concrete case. For tribunals are to judge criminals and not crimes, just as physicians treat sick people and not diseases in the abstract. We know that the same disease calls for a different treatment in different individuals; in like manner a crime must be judged with due reference to the mentality of the one Who has committed it. The Inquisition did not seem to understand this.[1]

[1] Even in our day the jury is bound to decide on the merits of the case submitted to it, without regarding the consequences of its verdict. The foreman reminds the jurymen in advance that "they will be false to their oath if, in giving their decision, they are biased by the consideration of the punishment their verdict will entail upon the prisoner."

The assembly of experts, therefore, instituted by the Popes did not obtain the good results that were expected. But we must, at least, in justice admit that the Popes did their utmost to protect the tribunals of the Inquisition from the arbitrary action of individual judges, by requiring the Inquisitors to consult both the boni viri and the Bishops.

Over the various penalties of the Inquisition, the Popes likewise exercised a supervision which was always just and at times most kindly.

The greatest penalties which the Inquisition could inflict were life imprisonment, and abandonment of the prisoner to the secular arm. It is only with regard to the first of these penalties that we see the clemency of both Popes and Councils. Any one who considers the rough manners of this period, must admit that the Church did a great deal to mitigate the excessive cruelty of the medieval prisons.

The Council of Toulouse, in 1229, decreed that repentant heretics "must be imprisoned, in such a way that they could not corrupt others." It also declared that the Bishop was to provide for the prisoners' needs out of their confiscated property. Such measures betoken an earnest desire to safeguard the health, and to a certain degree the liberty of the prisoners. In fact, the documents we possess prove that the condemned sometimes enjoyed a great deal of freedom, and were allowed to receive from their friends an additional supply of food, even when the prison fare was ample.

But in many places the prisoners, even before their trial, were treated with great cruelty. "The papal orders were that they (the prisons) should be constructed of small, dark cells for solitary confinement, only taking care that the enormis rigor of the incarceration should not extinguish life."[1] But this last provision was not always carried out. Too often the prisoners were confined in narrow cells full of disease, and totally unfit for human habitation. The Popes, learning this sad state of affairs, tried to remedy it. Clement V was particularly zealous in his attempts at prison reform.[2] That he succeeded in bettering, at least for a time, the lot of these unfortunates, in whom he interested himself, cannot be denied.[3]

[1] Lea, op. cit., vol. i, p. 491.

[2] He ordered that the prisons be kept in good condition, that they be looked after by both Bishop and Inquisitor, each of whom was to appoint a jailer who would keep the prison keys, that all provisions sent to the prisoners should be faithfully given them, etc. Cf. Decretal Multorum querela in Eymeric, Directorium, p. 112.

[3] His legates Pierre de la Chapelle and Béranger fr Frédol visited in April, 1306, the prisons of Carcassonne and Albi, changed the jailers, removed the irons from the prisoners, and made others leave the subterranean cells in which they had been confined. Douais, Documents, vol. ii, p. 304 seq. Cf. Compayré, Études historiques sur l'Albigeois, pp. 240-245.

If the reforms he decreed were not all carried out, the blame must be laid to the door of those appointed to enforce them. History frees him from all responsibility.

The part played by the Popes, the Councils, and the Inquisitors in the infliction of the death penalty does not appear in so favorable a light. While not directly participating in the death sentences, they were still very eager for the executions of the heretics they abandoned to the secular arm. This is well attested by both documents and facts.

Lucius III, at the Council of Verona in 1184, ordered sovereigns to swear, in the presence of their Bishops, to execute fully and conscientiously the ecclesiastical and civil laws against heresy. If they refused or neglected to do this, they themselves were liable to excommunication and their rebellious cities to interdict.[1]

[1] Decretal Ad abolendam, in the Decretals, cap. ix, De Hæreticis, lib. v, tit. vii. Cf. Sexto, lib. v, tit. ii, c. 2. Ut Officium; Council of Arles, 1254, can. iii; Council of Béziers, 1246, can. ix.

Innocent IV, in 1252, enacted a law still more severe, insisting on the infliction of the death penalty upon heretics. "When," he says, "heretics condemned by the Bishop, his Vicar, or the Inquisitors, have been abandoned to the secular arm, the podestà or ruler of the city must take charge of them at once, and within five days enforce the laws against them."[1]

[1] Eymeric, Directorium, Appendix. p. 8.

This law, or rather the bull Ad Extirpanda, which contains it, was to be inscribed in perpetuity in all the local statute books. Any attempt to modify it was a crime, which condemned the offender to perpetual infamy, and a fine enforced by the ban. Moreover, each podestà, at the beginning and end of his term, was required to have this bull read in all places designated by the Bishop and the Inquisitors, and to erase from the statute books all laws to the contrary.

At the same time, Innocent IV issued instructions to the Inquisitors of upper Italy, urging them to have this bull and the edicts of Frederic II inserted in the statutes of the various cities.[1] And to prevent mistakes being made as to which imperial edicts he wished enforced, he repeated these instructions in 1254, and inserted in one of his bulls the cruel laws of Frederic II, viz., the edict of Ravenna, Commissis nobis, which decreed the death of obdurate heretics; and the Sicilian law, Inconsutilem tunicam, which expressly decreed that such heretics be sent to the stake.

[1] Cf. the bulls Cum adversus, Tunc potissime, Ex Commissis nobis, etc., in Eymeric, ibid., pp. 9-12.

These decrees remained the law as long as the Inquisition lasted. The bull Ad Extirpanda was, however, slightly modified from time to time. "In 1265, Clement IV again went over it, carefully making some changes, principally in adding the word 'Inquisitors' in passages where Innocent had only designated the Bishops and Friars, thus, showing that the Inquisition had, during the interval, established itself as the recognized instrumentality in the prosecution of heresy, and the next year he repeated Innocent's emphatic order to the Inquisitors to enforce the insertion of his legislation and that of his predecessors upon the statute books everywhere, with the free use of excommunication and interdict."[1]

[1] Lea, op. cit., vol. i, p. 339.

A little later, Nicholas IV, who during his short pontificate (1288-1292), greatly favored the Inquisition in its work, re-enacted the bulls of Innocent IV and Clement IV, and ordered the enforcement of the laws of Frederic II, lest, perchance, they might fall into desuetude.[1]

[1] Registers, published by Langlois, no. 4253.

It is therefore proved beyond question that the Church, in the person of the Popes, used every means at her disposal, especially excommunication, to compel the State to enforce the infliction of the death penalty upon heretics. This excommunication, moreover, was all the more dreaded, because, according to the canons, the one excommunicated, unless absolved front the censure, was regarded as a heretic himself within a year's time, and was liable therefore to the death penalty.[1] The princes of the day, therefore, had no other way of escaping this penalty, except by faithfully carrying out the sentence of the Church.

[1] Alexander IV decreed this penalty against the contumacious. Sexto, De Hæreticis, cap. vii. Boniface VIII extended it to those princes and magistrates who did not enforce the sentences of the Inquisition. Sexto, De Hæreticis, cap. xviii in Eymeric, 2a pars, p. 110.

. . . . . . . .

The Church is also responsible for having introduced torture into the proceedings of the Inquisition. This cruel practice was introduced by Innocent IV in 1252.

Torture had left too terrible an impression upon the minds of the early Christians to permit of their employing it in their own tribunals. The barbarians who founded the commonwealths of Europe, with the exception of the Visigoths, knew nothing of this brutal method of extorting confessions. The only thing of the kind which they allowed was flogging, which, according to St. Augustine, was rather akin to the correction of children by their parents. Gratian, who recommends it in his Decretum,[1] lays it down as an "accepted rule of canon law that no confession is to be extorted by torture."[2] Besides, Nicholas I, in his instructions to the Bulgarians, had formally denounced the torturing of prisoners.[3] He advised that the testimony of three persons be required for conviction; if these could not be obtained, the prisoner's oath upon the Gospels was to be considered sufficient.

[1] Causa v, quæst. v, Illi qui, cap. iv.

[2] Causa xv, quæst, vi, cap. i.

[3] Responsa ad Consulta Bulgarorum, cap. lxxxvi, Labbe, Concilia, vol. viii, col. 544.

The ecclesiastical tribunals borrowed from Germany another method of proving crime, viz., the ordeals, or judgments of God.

There was the duel, the ordeal of the cross, the ordeal of boiling water, the ordeal of fire, and the ordeal of cold water. They had a great vogue in nearly all the Latin countries, especially in Germany and France. But about the twelfth century they deservedly fell into great disfavor, until at last the Popes, particularly Innocent III, Honorius III, and Gregory IX, legislated them out of existence.[1]

[1] Decretals, lib. v, tit. xxxv, cap. i-iii. Cf. Vacandard, L'Église et les Ordalies in Études de critique et d'histoire, 3d ed., Paris, 1906, pp. 191-215.

At the very moment the popes were condemning the ordeals, the revival of the Roman law throughout the West was introducing the customs of antiquity. It was then "that jurists began to feel the need of torture, and accustom themselves to the idea of its introduction." "The earliest instances with which I have met," writes Lea, "occur in the Veronese code of 1228, and the Sicilian constitutions of Frederic II in 1231, and in both of these the references to it show how sparingly and hesitatingly it was employed. Even Frederic, in his ruthless edicts, from 1220 to 1239, makes no allusion to it, but in accordance with the Verona decree of Lucius III, prescribes the recognized form of canonical purgation for the trial of all suspected heretics."[1]

[1] Lea, op. cit., vol. i, p. 421.

The use of torture, as Tanon has pointed out, had perhaps never been altogether discontinued. Some ecclesiastical tribunals, at least in Paris, made use of it in extremely grave cases, at the close of the twelfth andd beginning of the thirteenth centuries.[1] But this was exceptional: in Italy, apparently, it had never been used.

[1] Tanon, op. cit., pp. 362-373.

Gregory IX ignored all references to torture made in the Veronese code, and the constitutions of Frederic II. But Innocent IV, feeling undoubtedly that it was a quick and effective method for detecting criminals, authorized the tribunals of the Inquisition to employ it. In his bull Ad Extirpanda, he says: "The podestà or ruler (of the city) is hereby ordered to force all captured heretics to confess and accuse their accomplices by torture which will not imperil life or injure limb, just as thieves and robbers are forced to accuse their accomplices, and to confess their crimes; for these heretics are true thieves, murderers of souls, and robbers of the sacraments of God."[1] The Pope here tries to defend the use of torture, by classing heretics with thieves and murderers. A mere comparison is his only argument.

[1] Bull Ad Extirpanda, in Eymeric, Directorium, Appendix, p. 8.

This law of Innocent IV was renewed and confirmed November 30, 1259, by Alexander IV,[1] and again on November 3, 1265, by Clement IV.[2] The restriction of Innocent III to use torture "which should not imperil life or injure limb" (Cogere citra membri diminutionem et mortis periculum), left a great deal to the discretion of the Inquisitors. Besides flogging, the other punishments inflicted upon those who refused to confess the crime of which they were accused were antecedent imprisonment, the rack, the strappado, and the burning coals.

[1] Potthast, Regesta, no. 17714.

[2] Ibid., no. 19433.

When after the first interrogatory the prisoner denied what the Inquisitors believed to be very probable or certain, he was thrown into prison. The durus carcer et arcta vita was deemed an excellent method of extorting confessions.

"It was pointed out," says Lea, "that judicious restriction of diet not only reduced the body, but weakened the will, and rendered the prisoner less able to resist alternate threats of death and promises of mercy. Starvation, in fact, was reckoned one of the regular and most efficient methods to subdue unwilling witnesses and defendants."[1] This was the usual method employed in Languedoc. "It is the only method," writes Mgr. Douais,[2] "to to extort confessions mentioned either in the records of the notary of the Inquisition of Carcassonne[3] or in the sentences of Bernard Gui. It was also the practice of the Inquisitors across the Rhine."

[1] Lea, op. cit., vol. i, p. 421.

[2] Douais, Documents, vol. i, p. ccxl.

[3] Douais, Documents, vol. ii, p. 115 and seq.

Still the use of torture, especially of the rack and the strappado, was not unknown in southern Europe, even before the promulgation of Innocent's bull Ad Extirpanda.

The rack was a triangular frame, on which the prisoner was stretched and bound, so that he could not move. Cords were attached to his arms and legs, and then connected with a windlass, which, when turned, dislocated the joints of the wrists and ankles.

The strappado or vertical rack was no less painful. The prisoner with his hands tied behind his back was raised by a rope attached to a pulley and windlass to the top of a gallows, or to the ceiling of the torture chamber; he was then let fall with a jerk to within a few inches of the ground. This was repeated several times. The cruel torturers sometimes tied weights to the victim's feet to increase the shock of the fall.

The punishment of burning, "although a very dangerous punishment," as an Inquisitor informs us, was occasionally used. We read of an official of Poitiers, who, following a Toulousain custom, tortured a sorceress by placing her feet on burning coals (juxta carbones accensos). This punishment is described by Marsollier in his Histoire de l'Inquisition. First a good fire was started; then the victim was stretched out on the ground, his feet manacled, and turned toward the flame. Grease, fat, or some other combustible substance was rubbed upon them, so that they were horribly burned. From time to time a screen was placed between the victim's feet and the brazier, that the Inquisitor might have an opportunity to resume his interrogatory.

Such methods of torturing the accused were so detestable, that in the beginning the torturer was always a civil official, as we read in the bull of Innocent IV. The canons of the Church, moreover, prohibited all ecclesiastics from taking part in these tortures, so that the Inquisitor who, for whatever reason, accompanied the victim into the torture chamber, was thereby rendered irregular, and could not exercise his office again, until he had obtained the necessary dispensation. The tribunals complained of this cumbrous mode of administration, and declared that it hindered them from properly interrogating the accused. Every effort was made to have the prohibition against clerics being present in the torture chamber removed. Their object was at last obtained indirectly. On April 27, 1260, Alexander IV authorized the Inquisitors and their associates to mutually grant all the needed dispensations for irregularities that might be incurred.[1] This permission was granted a second time by Urban IV, August 4, 1262;[2] it was practically an authorization to assist at the interrogatories at which torture was employed. From this time the Inquisitors did not scruple to appear in person in the torture chamber. The manuals of the Inquisition record this practice and approve it.[3]

[1] Douais, Documents, vol. i, p. xxv, n. 3.

[2] Regesta, no. 18390.

[3] Eymeric, Directorium, 3a pars, p. 481.

Torture was not to be employed until the judge had been convinced that gentle means were of no avail.[1] Even in the torture chamber, while the prisoner was being stripped of his garments and was being bound, the Inquisitor kept urging him to confess his guilt. On his refusal, the vexatio began with slight tortures. If these proved ineffectual, others were applied with gradually increased severity; at the very beginning, the victim was shown all the various instruments of torture, in order that the mere sight of them might terrify him into yielding.[2]

[1] A grave suspicion against the prisoner was required before he could be tortured.

[2] Eymeric, Directorium, 3a pars, p. 481, col. 1.

The Inquisitors realized so well that such forced confessions were valueless, that they required the prisoner to confirm them after he had left the torture chamber. The torture was not to exceed a half hour. "Usually," writes Lea, "the procedure appears to be that the torture was continued until the accuser signified his readiness to confess, when he was unbound and carried into another room where his confession was made. If, however, the confession was extracted during the torture, it was read over subsequently to the prisoner, and he was asked if it were true…. In any case, the record was carefully made that the confession was free and spontaneous, without the pressure of force or fear."[1]

[1] Lea, op. cit., vol. i. p. 427.

"It is a noteworthy fact, however, that in the fragmentary documents of inquisitorial proceedings which have reached us, the references to torture are singularly few…. In the six hundred and thirty-six sentences borne upon the register of Toulouse from 1309 to 1323, the only allusion to torture is in the recital of the case of Calvarie, but there are numerous instances in which the information wrung from the convicts who had no hope of escape, could scarce have been procured in any other manner. Bernard Gui, who conducted the Inquisition of Toulouse during this period, has too emphatically expressed his sense of the utility of torture on both principals and witnesses for us to doubt his readiness in its employment."[1]

[1] Lea, op. cit., p. 424.

Besides, the investigation which Clement V ordered into the iniquities of the Inquisition of Carcassonne, proves clearly that the accused were frequently subjected to torture.[1] That we rarely find reference to torture in the records of the Inquisition need not surprise us. For in the beginning, torture was inflicted by civil executioners outside of the tribunal of the Inquisition; and even later on, when the Inquisitors were allowed to take part in it, it was considered merely a means of making the prisoner declare his willingness to confess afterwards. A confession made under torture had no force in law; the second confession only was considered valid. That is why it alone, as a rule, is recorded.

[1] Clement V required the consent of the Inquisitor and the local Bishop before a heretic could be tortured, vel tormentis exponere illis. Decretal Multorum querela, in Eymeric, Directorium, 2a pars, p. 112.

But if the sufferings of the victims of the Inquisition were not deemed worthy of mention in the records, they were none the less real and severe. Imprudent or heartless judges were guilty of grave abuses in the use of torture. Rome, which had authorized it, at last intervened, not, we regret to say, to prohibit it altogether, but at least to reform the abuses which had been called to her attention. One reform of Clement V ordered the Inquisition never to use torture without the Bishop's consent, if he could be reached within eight days.[1]

[1] Decretal, Multorum querela.

"Bernard Gui emphatically remonstrated against this, as seriously crippling the efficiency of the Inquisition, and proposed to substitute for it the meaningless phrase that torture should only be used with mature and careful deliberation, but his suggestion was not heeded, and the Clementine regulations remained the law of the Church."[1]

[1] Lea, op. cit., vol. i, p. 424; Bernard Gui, Practica, ed. Douais, 4a pars, p. 188.

The code of the Inquisition was now practically complete, for succeeding Popes made no change of any importance. The data before us prove that the Church forgot her early traditions of toleration, and borrowed from the Roman jurisprudence, revived by the legists, laws and practices which remind one of the cruelty of ancient paganism. But once this criminal code was adopted, she endeavored to mitigate the cruelty with which it was enforced. If this preoccupation is not always visible—and it is not in her condemnation of obdurate heretics—we must at least give her the credit of insisting that torture "should never imperil life or injure limb:" Cogere citra membri diminutionem et mortis periculum.

We will now ask how the theologians and canonists interpreted this legislation, and how the tribunals of the Inquisition enforced it.