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

by E. Vacandard

CHAPTER VIII THEOLOGIANS, CANONISTS, AND CASUISTS OF THE INQUISITION

THE gravity of the crime of heresy was early recognized in the
Church. Gratian discussed this question in a special chapter of his
Decretum.[1] Innocent III, Guala, the Dominican, and the Emperor
Frederic II, as we have seen, looked upon heresy as treason against
Almighty God, i.e., the most dreadful of crimes.

[1] Causa xxii, q. vii, cap. 16.

The theologians, and even the civil authorities, did not concern themselves much with the evil effects of heresy upon the social order, but viewed it rather as an offense against God. Thus they made no distinction between those teachings which entailed injury on the family and on society, and those which merely denied certain revealed truths. Innocent III, in his constitution of September 23, 1207, legislated particularly against the Patarins, but he took care to point out that no heretic, no matter what the nature of his error might be, should be allowed to escape the full penalty of the law.[1] Frederic II spoke in similar terms in his Constitutions of 1220, 1224, and 1232. This was the current teaching throughout the Middle Ages.

[1] Ep. x, 130.

But it is important to know what men then understood by the word heresy. We can ascertain this from the theologians and canonists, especially from St. Raymond of Pennafort and St. Thomas Aquinas. St. Raymond gives four meanings to the word heretic, but from the standpoint of the canon law he says: "A heretic is one who denies the faith."[1] St. Thomas Aquinas is more accurate. He declares that no one is truly a heretic unless he obstinately maintains his error, even after it has been pointed out to him by ecclesiastical authority. This is the teaching of St. Augustine.[2]

[1] S. Raymundi, Summa, lib. i, cap. De Hæreticis, sect. i, Roman Edition, 1603, p. 39.

[2] Summa, IIa, IIae, quæst. xi, Conclusio; cf. ibid., ad 3um, quotations from St. Augustine.

But by degrees the word, taken at first in a strict sense, acquired a broader meaning. St. Raymond includes schism in the notion of heresy. "The only difference between these two crimes," he writes, "is the difference between genus and species;" every schism ends in heresy. And relying on the authority of St. Jerome, the rigorous canonist goes so far as to declare that schism is even a greater crime than heresy. He proves this by the fact that Core, Dathan, and Abiron,[1] who seceded from the chosen people, were punished by the most terrible of punishments. "From the enormity of the punishment, must we not argue the enormity of the crime?" St. Raymond therefore declares that the same punishment must be inflicted upon the heretic and the schismatic.[2]

[1] Num. xvi. 31-33.

[2] Loc. cit., lib. i, cap. De Schismaticis, pp. 45-47

"The authors of the treatises on the Inquisition," writes Tanon, "classed as heretics all those who favored heresy, and all excommunicates who did not submit to the Church within a certain period. They declared that a man excommunicated for any cause whatever, who did not seek absolution within a year, incurred by this act of rebellion a light suspicion of heresy; that he could then be cited before the Inquisitor to answer not only for the crime which had caused his excommunication, but also for his orthodoxy. If he did not answer this second summons, he was at once considered excommunicated for heresy, and if he remained under this second excommunication for a year, he was liable to be condemned as a real heretic. The light suspicion caused by his first excommunication became in turn a vehement and then a violent suspicion which, together with his continued contumacy, constituted a full proof of heresy."[1]

[1] Tanon, op. cit., pp. 235, 236.

The theologians insisted greatly upon respect for ecclesiastical and especially Papal authority. Everything that tended to lessen this authority seemed to them a practical denial of the faith. The canonist Henry of Susa (Hostiensis + 1271), went so far as to say that "whoever contradicted or refused to accept the decretals of the Popes was a heretic."[1] Such disobedience was looked upon as a culpable disregard of the rights of the papacy, and consequently a form of heresy.

[1] In Baluze-Mansi, Miscellanea, vol. ii. p. 275.

Superstition was also classed under the heading of heresy. The canonist Zanchino Ugolini tells us that he was present at the condemnation of an immoral priest, who was punished by the Inquisitors not for his licentiousness, but because he said Mass every day in a state of sin, and urged in excuse that he considered himself pardoned by the mere fact of putting on the sacred vestments.[1]

[1] Tractat. de Hæret., cap. ii.

The Jews, as such, were never regarded as heretics. But the usury they so widely practiced evidenced an unorthodox doctrine on thievery, which made them liable to be suspected of heresy. Indeed, we find several Popes upbraiding them "for maintaining that usury is not a sin." Some Christians also fell into the same error, and thereby became subject to the Inquisition. Pope Martin V, in his bull of November 6, 1419., authorizes the Inquisitors to prosecute these usurers.[1]

[1] Bull Inter cætera, sent to the Inquisitor Pons Feugeyron.

Sorcery and magic were also put on a par with heresy. Pope Alexander IV had decided that divination and sorcery did not fall under the jurisdiction of the Inquisition, unless there was manifest heresy involved.[1] But casuists were not wanting to prove that heresy was involved in such cases. The belief in the witches' nightly rides through the air, led by Diana or Herodias of Palestine, was very widespread in the Middle Ages, and was held by some as late as the fifteenth century. The question whether the devil could carry off men and women was warmly debated by the theologians of the time. "A case adduced by Albertus Magnus, in a disputation on the subject before the Bishop of Paris, and recorded by Thomas of Cantimpré, in which the daughter of the Count of Schwalenberg was regularly carried away every night for several hours, gave immense satisfaction to the adherents of the new doctrine, and eventually an ample store of more modern instances was accumulated to confirm Satan in his enlarged privileges."[2] Satan, it seems, imprinted upon his clients an indelible mark, the stigma diabolicum.

[1] Bull of December 9, 1257.

[2] Lea, op. cit., vol. iii, p. 497.

"In 1458, the Inquisitor Nicholas Jaquerius remarked reasonably enough that even if the affair was an illusion, it was none the less heretical, as the followers of Diana and Herodias were necessarily heretics in their waking hours."[1]

[1] Lea, op. cit., pp. 497, 498.

About 1250, the Inquisitor Bernard of Como taught categorically that the phenomena of witchcraft, especially the attendance at the witches' Sabbath, were not fanciful but real: "This is proved," he says, "from the fact that the Popes permitted witches to be burned at the stake; they would not have countenanced this, if these persons were not real heretics, and their crimes only imaginary, for the Church only punishes proved crimes."[1] Witchcraft was, therefore, amenable to the tribunals of the lnquisition.[2]

[1] Lucerna Inquisitorium, Romæ, 1584, p. 144.

[2] In a letter to one of the cardinals of the Holy Office, dated 1643, witchcraft is classed with heresy. Douais, Documents, vol. i, p. ccliv. In practice, the heretical tendency of witchcraft was hard to determine. Each judge, therefore, as a rule, pronounced sentence according to his own judgment.

While the casuists thus increased the number of crimes which the Inquisition could prosecute, on the other hand, they shortened the judicial procedure then in vogue.

Following the Roman law, the Inquisition at first recognized three forms of action in criminal cases—accusatio, denuntiatio, and inquisitio. In the accusatio, the accuser formally inscribed himself as able to prove his accusation; if he failed to do so, he had to undergo the penalty which the prisoner would have incurred (poena talionis).[1] "From the very beginning, he was placed in the same position as the one he accused, even to the extent of sharing his imprisonment."[2] The denuntiatio did not in any way bind the accuser; he merely handed in his testimony, and then ceased prosecuting the case; the judge at once proceeded to take action against the accused. In the inquisitio, there was no one either to accuse or denounce the criminal; the judge cited the suspected criminal before him and proceeded to try him. This was the most common method of procedure; from it the Inquisition received its name.[3]

[1] Tanon, op. cit., p. 260, n. 4.

[2] Tancrède, Ordo judiciorum, lib. ii.

[3] On these three forms of action, cf. Eymeric, Directorium, 3a pars, p. 413 et seq.

The Inquisitorial procedure was therefore inspired by the Roman law. But in practice the accusatio, which gave the prisoner a chance to meet the charges against him, was soon abandoned. In fact the Inquisitors were always most anxious to set it aside. Urban IV enacted a decree, July 28, 1262, whereby they were allowed to proceed simpliciter et de plano, absque advocatorum strepitu et figura.[1] Bernard Gui insisted on this in his Practica.[2] Eymeric advised his associates, when an accuser appeared before them who was perfectly willing to accept the poena talionis in case of failure, to urge the imprudent man to withdraw his demand. For he argued that the accusatio might prove harmful to himself, and besides give too much room for trickery.[3] In other words, the Inquisitors wished to be perfectly untrammeled in their action.

[1] Bull Præ cunctis of July 28, 1262.

[2] Practica, 4a pars. ed. Douais, p. 192.

[3] Directorium, p. 414. col. 1.

The secrecy of the Inquisition's procedure was one of the chief causes of complaint.

But the Inquisition, dreadful as it was, did not lack defenders. Some of their arguments were most extravagant and far-fetched. "Paramo, in the quaint pedantry with which he ingeniously proves that God was the first Inquisitor, and the condemnation of Adam and Eve the first model of the Inquisitorial process, triumphantly points out that he judges them in secret, thus setting the example which the Inquisition is bound to follow, and avoiding the subtleties which the criminals would have raised in their defence, especially at the suggestion of the crafty serpent. That he called no witnesses is explained by the confession of the accused, and ample legal authority is cited to show that these confessions were sufficient to justify the conviction and punishment."[1]

[1] Lea, op. cit., vol. i, p. 406.

. . . . . . . .

The subtlety of the casuists had full play when they came to discuss the torture of the prisoner who absolutely refused to confess. According to law, the torture could be inflicted but once, but this regulation was easily evaded. For it was lawful to subject the prisoner to all the various kinds of torture in succession; and if additional evidence were discovered, the torture could be repeated. When they desired, therefore, to repeat the torture, even after an interval of some days, they evaded the law by calling it technically not a "repetition" but a "continuance of the first torture:" Ad continuandum tormenta, non ad iterandum, as Eymeric styles it.[1] This quibbling of course gave full scope to the cruelty and the indiscreet zeal of the Inquisitors.

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

But a new difficulty soon arose. Confessions extorted under torture, had, as we have seen, no legal value. Eymeric himself admitted that the results obtained in this way were very unreliable, and that the Inquisitors should realise this fact.

If, on leaving the torture chamber, the prisoner reiterated his confession, the case was at once decided. But suppose, on the contrary, that the confession extorted under torture was afterwards retracted, what was to be done? The Inquisitors did not agree upon this point. Some of them, like Eymeric, held that in this case the prisoner was entitled to his freedom. Others, like the author of the Sacro Arsenale, held that "the torture should be repeated, in order that the prisoner might be forced to reiterate his first confession which had evidently compromised him." This seems to have been the traditional practice of the Italian tribunals.

But the casuists did not stop here. They discovered "that Clement V had only spoken of torture in general, and had not specifically alluded to witnesses, whence they concluded that one of the most shocking abuses of the system, the torture of witnesses, was left to the sole discretion of the Inquisitor, and this became the accepted rule. It only required an additional step to show that after the accused had been convicted by evidence or had confessed as to himself, he became a witness as to the guilt of his friends, and thus could be arbitrarily (?) tortured to betray them."[1]

[1] Lea, op. cit., vol. i, p. 425.

As a matter of course, the canonists and the theologians approved the severest penalties inflicted by the Inquisition. St. Raymond of Pennafort, however, who was one of the most favored counselors of Gregory IX, still upheld the criminal code of Innocent III. The severest penalties he defended were the excommunication of heretics and schismatics, their banishment and the confiscation of their property.[1] His Summa was undoubtedly completed when the Dccretal of Gregory IX appeared, authorizing the Inquisitors to enforce the cruel laws of Frederic II.

[1] Lea writes (op. cit., vol. i, p. 229, note) "Saint Raymond of Pennafort, the compiler of the decretals of Gregory I, who was the highest authority in his generation, lays it down as a principle of ecclesiastical law that the heretic is to be coerced by excommunication and confiscation, and if they fail, by the extreme exercise of the secular power. The man who was doubtful in faith was to be held a heretic, and so also was the schismatic who, while believing all the articles of religion, refused the obedience due to the Roman Church. All alike were to be forced into the Roman fold, and the fate of Core, Dathan and Abiron was invoked for the destruction of the obstinate." (Summa, lib. i. tit. v, 2, 4, 8; tit. vi, i.) This is a travesty of the mind, and words of Saint Raymond. He merely called attention to the lot of Core, Dathan and Abiron to show what a great crime schism was. He never asserted that heretics or schismatics, even when obdurate, ought to be "destroyed." Summa, lib. i, cap. De Hæreticis and De Schismaticis.

But St. Thomas, who wrote at a time when the Inquisition was in full operation, felt called upon to defend the infliction of the death penalty upon heretics and the relapsed. His words deserve careful consideration. He begins by answering the objections that might be brought from the Scriptures and the Fathers against his thesis. The first of these is the well-known passage of St. Matthew, in which our Saviour forbids the servants of the householder to gather up the cockle before the harvest time, lest they root up the wheat with it.[1] St. John Chrysostom, he says, "argues from this text that it is wrong to put heretics to death."[2] But according to St. Augustine the words of the Saviour: "Let the cockle grow until the harvest," are explained at once by what follows: "lest perhaps gathering up the cockle, you root up the wheat also with it." When there is no danger of uprooting the wheat and no danger of schism, violent measures may be used:" Cum metus iste non subest … non dormiat severitas disciplinæ."[3] We doubt very much whether such reasoning would have satisfied St. John Chrysostom, St. Theodore the Studite, or Bishop Wazo, who understood the Saviour's prohibition in a literal and an absolute sense.

[1] Matt. xiii. 28-30.

[2] In Matthæum, Homil. xlvi.

[3] Augustine, Contra epistol. Parmeniani, lib. iii. cap. ii.

But this passage does not reveal the whole mind of the Angelic doctor. It is more evident in his exegesis of Ezechiel xviii. 32, Nolo mortem peccatoris. "Assuredly," he writes, "none of us desires the death of a single heretic. But remember that the house of David could not obtain peace until Absalom was killed in the war he waged against his father. In like manner, the Catholic Church saves some of her children by the death of others, and consoles her sorrowing heart by reflecting that she is acting for the general good."[1]

[1] St. Thomas, Summa, loc. cit., ad. 4m.

If we are not mistaken, St. Thomas is here trying to prove, on the authority of St. Augustine, that it is sometimes lawful to put heretics to death.

But it is only by garbling and distorting the context that St. Thomas makes the Bishop of Hippo advocate the very penalty which, as a matter of fact, he always denounced most strongly. In the passage quoted, St. Augustine was speaking of the benefit that ensues to the Church from the suicide of heretics, but he had no idea whatever of maintaining that the Church had the right to put to death her rebellious children.[1] St. Thomas misses the point entirely, and gives his readers a false idea of the teaching of St. Augustine.

[1] Ep. clxxxv, ad Bonifacium, no. 32.

Thinking, however, that he has satisfactorily answered all the objections against his thesis, he states it as follows: "Heretics who persist in their error after a second admonition ought not only to be excommunicated, but also abandoned to the secular arm to be put to death. For, he argues, it is much more wicked to corrupt the faith on which depends the life of the soul, than to debase the coinage which provides merely for temporal life; wherefore, if coiners and other malefactors are justly doomed to death, much more may heretics be justly slain once they are convicted. If, therefore, they persist in their error after two admonitions, the Church despairs of their conversion, and excommunicates them to ensure the salvation of others whom they might corrupt; she then abandons them to the secular arm that they may be put to death."[1]

[1] Summa, IIa IIae, quæst. xi, art. 3.

St. Thomas in this passage makes a mere comparison serve as an argument. He does not seem to realize that if his reasoning were valid, the Church could go a great deal further, and have the death penalty inflicted in many other cases.

The fate of the relapsed heretic had varied from Lucius III to Alexander IV. The bull Ad Abolendam decreed that converted heretics who relapsed into heresy were to be abandoned to the secular arm without trial.[1] But at the time this Decretal was published, the Animadversio debita of the State entailed no severer penalty than banishment and confiscation. When this term, already fearful enough, came to mean the death penalty, the Inquisitors did not know whether to follow the ancient custom or to adopt the new interpretation. For a long time they followed the traditional custom. Bernard of Caux, who was undoubtedly a zealous Inquisitor, is a case in point. In his register of sentences from 1244 to 1248, we meet with sixty cases of relapse, not one of whom was punished by a penalty severer than imprisonment. But a little later on the strict interpretation of the Animadversio debita began to prevail. In St. Thomas's time it meant the death penalty; and we find him citing the bull Ad Abolendam[2] as his authority for the infliction of the death penalty upon the relapsed, penitent or impenitent, in ignorance of the fact that this document originally had a totally different interpretation.

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

[2] Summa, IIa IIae, quæst. ix, art. 4: Sed contra.

His reasoning therefore rests on a false supposition. He advocates the death penalty for the relapsed in the name of Christian charity. For, he argues, charity has for its object the spiritual and temporal welfare of one's neighbor. His spiritual welfare is the salvation of his soul; his temporal welfare is life, and temporal advantages, such as riches, dignities, and the like. These temporal advantages are subordinate to the spiritual, and charity must prevent their endangering the eternal salvation of their possessor. Charity, therefore, to himself and to others, prompts us to deprive him of these temporal goods, if he makes a bad use of them. For if we allowed the relapsed heretic to live, we would undoubtedly endanger the salvation of others, either because he would corrupt the faithful whom he met, or because his escape from punishment would lead others to believe they could deny the faith with impunity. The inconstancy of the relapsed is, therefore, a sufficient reason why the Church, although she receives him to penance for his soul's salvation, refuses to free him from the death penalty.

Such reasoning is not very convincing. Why would not the life imprisonment of the heretic safeguard the faithful as well as his death? Will you answer that this penalty is too trivial to prevent the faithful from falling into heresy? If that be so, why not at once condemn all heretics to death, even when repentant? That would terrorize the wavering ones all the more. But St. Thomas evidently was not thinking of the logical consequences of his reasoning. His one aim was to defend the criminal code in vogue at the time. That is his only excuse. For we must admit that rarely has his reasoning been so faulty and so weak as in his thesis upon the coercive power of the Church, and the punishment of heresy.

. . . . . . . .

St. Thomas defended the death penalty without indicating how it was to be inflicted. The commentators who followed him were more definite. The Animadversio debita, says Henry of Susa (Hostiensis + 1271), in his commentary on the bull Ad Abolendam, is the penalty of the stake (ignis crematio). He defends this interpretation by quoting the words of Christ: "If any one abide not in me, he shall be cast forth as a branch, and shall wither, and they shall gather him and cast him into the fire, and he burneth."[1] Jean d'Andre (+ 1348), whose commentary carried equal weight with Henry of Susa's throughout the Middle Ages, quotes the same text as authority for sending heretics to the stake.[2] According to this peculiar exegesis, the law and custom of the day merely sanctioned the law of Christ. To regard our Saviour as the precursor or rather the author of the criminal code of the Inquisition evidences, one must admit, a very peculiar temper of mind.

[1] John, xv, 6; Hostiensis, on the decretal Ad Abolendum, cap. xi, in Eymeric, Directorium inquisitorum, 2a pars, pp. 149, 150.

[2] On the decretal Ad Abolendum, cap. xiv, in Eymeric, ibid., pp. 170, 171.

. . . . . . . .

The next step was to free the Church from all responsibility in the infliction of the death penalty—truly an extremely difficult undertaking.

St. Thomas held, with many other theologians, that heretics condemned by the Inquisition should be abandoned to the secular arm, judicio sæculari. But he went further, and declared it the duty of the State to put such criminals to death.[1] The State, therefore, was to carry out this sentence at least indirectly in the name of the Church.

[1]Summa, IIa, IIae, quæst. xi, art. 3.

A contemporary of St. Thomas thus meets this difficulty: "The Pope does not execute any one," he says, "or order him to be put to death; heretics are executed by the law which the Pope tolerates; they practically cause their own death by committing crimes which merit death."[1] The heretic who received this answer to his objections must surely have found it very far-fetched. He could easily have replied that the Pope "not only allowed heretics to be put to death, but ordered this done under penalty of excommunication." And by this very fact he incurred all the odium of the death penalty.

[1] Disputatio inter catholicum et Paterinum hæreticum, cap. xii, in Martène, Thesaurus Anecdotorum, vol. v. col. 1741.

The casuists of the Inquisition, however, came to the rescue, and tried to defend the Church by another subterfuge. They denounced in so many words the death penalty and other similar punishments, while at the same time they insisted upon the State's enforcing them. The formula by which they dismissed an impenitent or a relapsed heretic was thus worded: "We dismiss you from our ecclesiastical forum, and abandon you to the secular arm. But we strongly beseech the secular court to mitigate its sentence in such a way as to avoid bloodshed or danger of death."[1] We regret to state, however, that the civil judges were not supposed to take these words literally. If they were at all inclined to do so, they would have been quickly called to a sense of their duty by being excommunicated. The clause inserted by the canonists was a mere legal fiction, which did not change matters a particle.

[1] Eymeric, Directorium Inquisitorum, 3a pars, p. 515, col. 2.

It is hard to understand why such a formula was used at all. Probably it was first used in other criminal cases in which abandonment to the secular arm did not imply the death penalty, and the Inquisition kept using it merely out of respect to tradition. It seemed to palliate the too flagrant contradiction which existed between ecclesiastical justice and the teaching of Christ, and it gave at least an external homage to the teaching of St. Augustine, and the first Fathers of the Church. Moreover, as it furnished a specious means of evading by the merest form of prohibition against clerics taking part in sentences involving the effusion of blood and death, aud the irregularity resulting therefrom, the Inquisitors used it to reassure their conscience.

Finally, however, some Inquisitors, realizing the emptiness of this formula, dispensed with it altogether, and boldly assumed the full responsibility for their sentences. They deemed the rôle of the State so unimportant in the execration of heretics, that they did not even mention it. The Inquisition is the real judge; it lights the fires. "All whom we cause to be burned," says the famous Dominican Sprenger in his Malleus Maleficarum.[1] Although not intended as an accurate statement of fact,[2] it indicates pretty well the current idea regarding the share of the ecclesiastical tribunals in the punishment of heretics.

[1] Malleus maleficarum maleficas et earum hæresim framea conterens, auct. Jacobo Sprengero, Lugduni, 1660, pars ii, quæst. i, cap. ii, p. 108, col. 2.

[2] We must interpret in the same sense the decree of the Council of Constance pronouncing the penalty of the stake against the followers of John Huss, John Wyclif and Jerome of Prague. Session xxiv, no. 23, Harduin, Concilia, vol. viii, col. 896 et seq. The Council here indicates only the usual punishment for the relapsed, without really decreeing it.

. . . . . . . .

It is evident that the theologians and canonists were simply apologists for the Inquisition, and interpreters of its laws. As a rule, they tried, like St. Raymond Pennafort and St. Thomas, to defend the decrees of the Popes. We cannot say that they succeeded in their task. Some by their untimely zeal rather compromised the cause they endeavored to defend. Others, going counter to the canon law, drew conclusions from it that the Popes never dreamed of, and in this way made the procedure of the Inquisition, already severe enough, still more severe, especially in the use of torture.