Mediæval Heresy & the Inquisition

by Arthur Stanley Turberville

This step was taken by Pope Gregory IX, who may therefore legitimately be said to have founded the Inquisition. Both the episcopal courts and the experiment of the occasional legate had been insufficient. Gregory made use of a powerful weapon which came readily to hand in the two great Mendicant Orders. Recognizing their potential utility, Gregory, herein followed by Innocent IV, showered upon them all manner of special privileges and exemptions and bound them by this means peculiarly to the service of the papacy. They were pre-eminently fitted, as it happened, for the special service of prosecuting heresy. They were still young in the first white heat of a new enthusiasm, while their zeal and their purity made them both influential and popular. They were also often endowed—especially the Dominicans—with high intellectual gifts and early acquired a great reputation as subtle and learned theologians. Thus while their poverty, their single-mindedness and their good works were an answer to anti-sacerdotal attacks, their theological attainments enabled them to combat the dialectical arguments of the heterodox. The uniformity and permanence of inquisitorial practice came largely from the selection of the two orders of the Friars to undertake the jurisdiction over heresy. In so far, therefore, as the choice of a particular date or incident for the commencement of an institution can be otherwise than arbitrary, it is legitimate to fix upon the delegation by Gregory IX of jurisdictional powers almost exclusively to the members of the Franciscan and Dominican orders as marking the beginning of the Inquisition as an organized tribunal.

Actually the first delegation made by Pope Gregory in regard to heresy was made neither to a Franciscan nor a Dominican, but to a man notorious for his extraordinary relations with Saint Elizabeth of Hungary, namely Conrad of Marburg. Whatever his status to begin with, he certainly became a delegate possessed of very wide powers eventually. He was in fact an inquisitor in precisely the same sense as Pierre de Castelnau and Arnaud of Citeaux had been inquisitors; and the question of his precise authority has exactly the same bearing on the question of the beginnings of the tribunal of the Inquisition as the question of their authority—no more.[301]

Eight days after the bestowal of the commission upon Conrad, namely on June 20, 1227, Gregory entrusted another inquisitorial commission to a Dominican. This, however, is not the significant date. The decisive event is the addressing of two bulls to France in April 1233, the first to the bishops, the second to the Preaching Friars. The first explains that owing to ‘the whirlwind of cares’ and ‘the presence of overwhelming anxieties,’ under which the bishops labour, the Pope has thought it well to divide their burdens and has decided to send the Preaching Friars against the heretics of France. The bishops are earnestly exhorted to treat the Brothers kindly and lend them all assistance in the fulfilment of their office. The second, and by far the more important bull, addressed to the Friars, empowers them ‘to deprive clerks of their benefices for ever, and to proceed against them and all others without appeal, calling in the aid of the secular arm if necessary, and coercing opposition, if needful, with the censures of the Church, without appeal.’[302] Some have detected in these bulls an apologetic tone indicating uncertainty on Gregory’s part as to whether the bishops would acquiesce in this invasion of their powers, and it is also no doubt true that ‘the character of his instructions proves that he had no conception of what the invasion was to lead to.’[303] On the other hand, there is here the clear evidence of a matured conception, based upon the experience of the multiplication of special commissions to individual legates, of a permanent delegation.[304] By 1235 this system had penetrated not only through France, Toulouse and Burgundy, but also Lombardy, Sicily, Aragon, Brabant, Germany.[305]

The inquisitorial commissions entrusted to the Friars, it is important to note, did not involve the extinction of episcopal jurisdiction in matters of heresy. In 1234 Gregory is found threatening the bishops of the province of Narbonne, if they do not show due energy against heretics, and making no mention of the new authority.[306] As yet the friars-inquisitor are regarded only as a more efficient supplement to the ordinary ecclesiastical tribunals. Gregory intended that bishops and inquisitors should work together, and bishops had to concur in the friars’ sentences. Plainly there was not unnatural antagonism, bishops wishing to treat inquisitors simply as expert advisers, inquisitors aiming at becoming the real judges. In 1247 Innocent IV treats the bishops as the real judges: yet in the numerous sentences of the celebrated inquisitor, Bernard de Caux, recorded between 1246 and 1248, there is no trace of episcopal concurrence.[307] In 1248 the Council of Valence had to bring pressure upon bishops to observe the sentences of inquisitors.[308] Between 1250 and 1254 the director of the proceedings of the Carcassonne Inquisition who makes the interrogations and imposes the sentences is a bishop: but it is not certain whether he was acting in his episcopal capacity or as a special papal commissioner. Such commissions were rarely given to bishops, as the popes much preferred, as a rule, to use the friars. The root fact was that to perform his special duties efficiently an inquisitor needed to devote his entire time and attention to them: and thus, as it became more and more apparent that heresy was no mere ephemeral menace which could be stamped out once for all, but a lasting trouble which had constantly to be met, so the Inquisition, first regarded as a temporary expedient to deal with an emergency, developed into a permanent institution. So also the efforts of the bishops, either to retain the jurisdiction over heresy in their own ordinary courts or to superimpose their authority over the inquisitor in his extraordinary court, were alike doomed to failure. As a matter of fact, probably the average bishop was too much immersed in other cares and interests to trouble to secure his prerogative in the matter of heresy.[309] Thus it was that before the end of the thirteenth century the Inquisition had come to be an intrinsic part of the judicial organization of the Church.

The pontificate of Gregory IX is in more ways than one a critical period in the history of the repression of heresy. It saw the first clear authorization of the death penalty for the obdurate heretic. Capital punishment had at times been shown to be the popular remedy for heresy; it had sometimes been adopted by the secular arm, sometimes approved by the clergy. But it had not been legalized in the empire, formally sanctioned by the temporal law of the world, as the general rule of Christendom. The first public law of Europe enjoining it was the work of the Emperor Frederick II. That the most extraordinary member of the house of Hohenstaufen, being a man who despite a curious strain of superstition in him was a rationalist and a sceptic, should have been responsible for this legislation may at first sight appear astonishing. An Italian, not a German, brought up among the half Greek, half Saracen influences of Sicily, drawing his inspiration rather from Averrhoës and Arab free-thought than from any Christian source, amazingly versatile, poet, lover of learning, statesman, diplomatist, his outlook upon the world was altogether individual, his intellect powerful and singular, untrammelled by convention. He was a medley of strange contradictions: he protected Jews and Mussulmans; he persecuted heretics. The Averrhoïst heretics from Islam interested him, the heretics from Catholicism not at all.

On November 22, 1220, Frederick produced his first constitution for Lombardy.[310] This repealed the penalties of Frederick Barbarossa in his edict of 1184, confiscation of property and outlawry, penalties severe enough, because outlawry in the Middle Ages was a terrible punishment, putting the culprit at any man’s mercy. This first constitution appears to have been inspired by Honorius III.[311] A second constitution of March 1224, published at Catania for the whole of Lombardy, first introduced the death penalty—death at the stake; but at the discretion of the judge, the loss of the tongue might be substituted.[312] In 1231 in the Constitutions of Melfi, which applied indeed only to Sicily, this element of choice was no longer included, and the penalty was made absolutely death by fire. In 1238 this regulation was extended to the empire, being afterwards introduced into the Sachenspiegel and Schwabenspiegel of Germany.[313] Thus death by fire became the recognized punishment for heresy in the empire. In 1226 Louis IX issued ordinances prescribing severe punishments for heretics; but at the time the use of the stake was general in France, and it was formally accepted as the legal punishment in the Etablissements of Louis IX in 1270.[314]

In view of what Frederick II did in his Constitutions, some historians have placed upon his shoulders the full responsibility for the horrors of the stake. This is both unfair and unhistorical. The blame attaches to no single man. The fact of first giving sanction in civil law to death by burning is certainly important, but the importance can easily be exaggerated. Frederick was only giving legal recognition to the actual practice of France and Germany; only introducing what was customary elsewhere into Italy, where tolerance had on the whole been general. Some importance should also be attached to the revival of the study of Roman Law, which showed that Manichæans had suffered death in days before Constantine. In the part played by Frederick II we shall be wise to recognize not something catastrophic but rather a link among very many in a lengthy chain of development.[315] Nor must we forget the significance of the order that burnings are to take place ‘in conspectu populi.’ This is surely an answer to a popular demand that the execution of heretics should be made a public example, a salutary spectacle? The examination of the force of public opinion is almost always more fruitful than that of the motives of individuals, however powerful.

What was the attitude of the Church in its crusade against heresy towards the action of Frederick? Being crucial, the question is exceedingly controversial. There have been apologists for the Church who have argued that the whole blame for the burning of heretics rests with the secular power, that Gregory IX had a positive aversion to the idea, that Frederick II’s laws against heretics are to be regarded as an attempt to humiliate the Pope and wrest from the Church jurisdiction which properly belonged to it. This argument makes the establishment of the Inquisition a measure of self-defence, a strategic blow delivered in the great war between the secular and ecclesiastical authorities.[316]

This ingenious theory will not stand close examination. There is in the first place the prima facie probability that an unorthodox emperor, anxious to utilize the question of heresy in a conflict with the papacy, would rather protect than prosecute it. In the second place, there is really no evidence for discovering in Frederick’s action an elaborate Machiavellian device; while we have sufficient evidence that Gregory did approve the burning of heretics.[317] There seems clearly to have been clerical influence behind the constitutions. The constitution of 1224 has been ascribed to the influence of a certain German prelate, Albert, Archbishop of Magdeburg, imperial legate in Italy, who wanted to see heretics treated in Italy as they were in his own country, and who therefore induced the emperor to give legal sanction to the death penalty.[318] Even more significant would appear to have been the part played by the Spanish Dominicans, Guala and Raymond of Peñaforte. Guala was Bishop of Brescia in 1230, and Brescia was the first town to place among its municipal laws the Lombard Constitution of 1224. The Bishop was in constant communication with Gregory, and when Rome followed the example of Brescia, it is surmised, though it cannot be proved, that Guala was responsible for this, as also for the Constitution of 1231.[319] This is conjecture, and so is the alternative theory which attributes the legal establishment of the death sentence not so much to Guala as to Raymond.[320] Whatever may be the truth concerning clerical influence prior to the promulgation of the Constitutions, the question of the subsequent attitude of the Church towards them is not a matter of conjecture.

In his bull, Excommunicamus, Gregory orders that heretics, condemned by the Church, shall be handed over to the secular arm and punished by the merited penalty (‘puniantur animadversione debita’). What this punishment is, is not expressly mentioned, but inasmuch as all other possible penalties are mentioned by name—imprisonment, excommunication, infamy, deprivation of civil rights etc., we are left by a process of elimination with the death penalty as the only conceivable end for the obdurate heretic abandoned to the secular arm.[321] Only wilful blindness can misinterpret the phrase ‘animadversione debita,’ especially as its meaning seems to be forcibly illustrated by the practice of the Senator Annibaldi who ruled Rome in Gregory’s name. In 1231 he issued a decree, introducing the imperial constitution into the city and establishing that each senator, on admission into office, must pronounce the ban of the city against all heretics in it, seize upon all who are pointed out as heretics by the inquisitors and punish them within eight days from the passing of sentence. Here Annibaldi used the Pope’s euphemism, ‘merited penalty.’ The same year several heretics were seized in Rome, some imprisoned, but the obdurate burnt.[322]