Mediæval Heresy & the Inquisition

by Arthur Stanley Turberville

As the system became elaborated, the inquisitors had at their command a formidable spy system, carried on by their agents, the familiars. At the same time much encouragement was given to wholesale delation. The inquisitor or his vicar would make a sudden dramatic descent upon town or village, and deliver a solemn, perhaps menacing, exhortation to the inhabitants to proffer information against heretics. By thus appealing to the religious zeal or the apprehensions of the populace many accusations would be obtained, often from husbands and wives, parents and children. But to reinforce such voluntary incriminations it was customary to proclaim a ‘time of grace,’ which lasted from a fortnight to a month. If within that period the heretic came forward, acknowledged his own guilt and gave any information he possessed against others, he would obtain either complete exemption or considerable alleviation from the penalties merited by heresy. This method, Bernard Gui assures us, was remarkably satisfactory.[377]

The inquisitio generalis being concluded, and prisoners obtained either by voluntary self-denunciations or on the information of others, the judge, according to canonical usage, had a choice of expedients. He could either proceed to an inquisitio specialis or make use of the method of purgatio canonica. The second method had been solemnly adopted by the Church in 803.[378] It was an appeal to God. The accused solemnly swore by the Gospels that he was innocent, while those of his friends or neighbours willing to support him acted as his compurgatores and gave similar solemn testimony to his innocence, their number, from two or three to forty, varying in accordance with the degree of suspicion existing against him. The device was obviously defective. Its only advantage lay in the impressiveness of its appeal to the devout mind, persuaded of the heinousness of the sin of perjury, while it allowed the innocent man to suffer, if he happened to be unpopular and could not prevail upon the necessary number of compurgators to assist him, and also allowed the guilty to go free, so long as he was not over-scrupulous as regards perjury and had the necessary popularity to persuade, or power to compel, others to act as his compurgators. Thus, while the system of canonical purgation was never abolished, it had fallen into virtual desuetude before the end of the thirteenth century.[379] In practice the inquisitio generalis was followed automatically by the inquisitio specialis. The accused was served with a citation to appear before the tribunal and kept in prison pending his trial.[380]

In the case of those who had yielded themselves up of their own accord, the voluntary act constituted the confession, which it was the inquisitor’s object to obtain. For those accused who refused to confess there followed the interrogatory. Here the inquisitor acted as prosecutor and cross-examiner, as a sort of juge d’instruction.[381] Only the inquisitor’s office, unlike that of the juge d’instruction, did not end with the completion of the interrogatory; having conducted the examination, he would also afterwards pronounce the sentence. The interrogatory resolved itself into an unequal contest between inquisitor and accused. It was unequal, in the first place, because there was always a presumption against anyone charged with heresy. As we have seen, it was an offence for anyone to be so criminally negligent in vitally important matters as to allow his conduct to give rise to the slightest rumour of heresy. It was an excellent characteristic of both Roman and Canon law that the accused was held to be innocent until actually proved to be guilty. This characteristic was not shewn, in actual practice, in dealing with one accused of heresy. The mere fact of defamation tainted a man. It was, therefore, a matter of very great difficulty for the defendant to demonstrate his innocence. He had to demonstrate it; for the mere fact of the diffamatio, whether well-grounded or not, was good evidence against him; and to free himself, he must rebut this evidence. The process was indeed so difficult that it was much safer to confess guilt at the outset than to labour to prove innocence.

In the second place, the duel was unequal because the inquisitor considered it perfectly legitimate to disconcert his adversary by means of disingenuous subtleties and subterfuges. It is only fair to add that the inquisitor adopted such devices because he believed that the heretic was apt to indulge in them and might save himself by clever equivocations unless dealt with astutely; and the inquisitor had a lively sense of the extreme undesirability of permitting a heretic to get the better of him in a duel of wits. Such a thing would be ignominious for the inquisitor; a blow to the Church and the truth. We are told of some of the artifices practised by Waldenses. In answer to the question: ‘What is Holy Church?’ they will say, ‘What you consider to be such’ or assert that they are simple illiterate men standing in need of instruction, and must leave it to the judge to express their beliefs in words. That the inquisitors may have found the rejoinders even of illiterate men at times disconcerting is likely.[382] But it is certain that they practised their subtleties on many who had not the wits to cope with them: and, in any case, the inquisitor, being both examiner and judge, had an enormous initial advantage. As a rule, the inquisitor or his vicar was extremely well equipped to conduct the interrogatory skilfully and successfully, even against the most redoubtable antagonists. They possessed, moreover, a rich repository of ready-made devices in the treatises written by the great masters of the inquisitorial art. The difficulty of escaping from the tentacles of the inquisitorial process inspired Bernard Délicieux to say that even the orthodoxy of St. Peter and St. Paul would not have been sufficient to satisfy the tribunal.[383] It was held to be legitimate to surprise and confuse the defendant by a multiplicity of questions, which would involve him in contradictions.[384]

Altogether the dice were heavily loaded against the accused. Dismayed to begin with very likely by the simple shock of finding himself accused of the terrible crime of heresy,[385] confronted by a formidable examiner, who was clearly bent upon securing a confession if at all possible, he had also to face the great obstacle presented by the close secrecy of all the proceedings. There was none of the security that comes from the open trial, none of the encouragement to make a good fight for freedom, for honour, for life that comes from publicity. Again, the chances of acquittal were very small when the agreement of only two of the witnesses against him was sufficient for the condemnation of the accused, whether he confessed or not: especially as the delicate question of what constituted sufficient agreement was left to the discretion of the judge. It was laid down that agreement in substance was sufficient; and even when there was discord in the evidence of the two witnesses, this was not sufficient to secure acquittal. Moreover, evidence, not good enough to procure conviction, would be good enough to serve as the basis of a prolonged, searching and perplexing examination, in which the accused was more likely to incriminate than to clear himself.[386]

A further heavy obstacle to the making of a defence was insufficiency of information. While the résumé or capitula of the charges preferred against him was communicated to the defendant, on the other hand, the names of the witnesses were withheld from him, and he was not allowed to read their evidence in extenso. This practice of secrecy commenced early in the thirteenth century in Languedoc, and the rule soon came to apply in most other countries. Occasionally the names were given, though in an incomplete or confusing fashion[387]; but the inquisitors themselves were in favour of not disclosing names at all.[388] This was owing to the circumstances in which the Inquisition had originated, amid an unfriendly populace.[389] There had been cases of the assassination of witnesses by the friends of the accused; and undoubtedly there was always a certain element of risk in giving evidence against a heretic in a country where heresy flourished and was popular. In those early days the inquisitor was very likely endangering his life in the prosecution of his labours: in such circumstances, if the indispensable evidence was to be collected, some sort of safeguard for voluntary witnesses was reasonable.

But an arrangement, which was justified, and perhaps rendered imperative, by the conditions prevailing when the Inquisition began, was continued indefinitely, and maintained when not the witnesses but the defendant belonged to an unpopular minority and stood in urgent need of some protection. How could anyone put on trial make an effective answer to the charges brought against him when he was never allowed to confront the witnesses, did not even know their identity, and was permitted to see only a précis of their testimony? It is obvious that the system, whatever its origin, became in course of time a positive encouragement to delation and a temptation to perjury. But it is only right to add that the Inquisition, both in the Middle Ages and later on, showed itself at times extremely severe in punishing proved cases of false witness.[390]

Nevertheless, as a rule, the Inquisition was not at all nice in its selection of evidence, and certainly not impartial. It accepted the evidence of persons who were debarred from bearing testimony in the secular courts. It even accepted the evidence of one heretic against another, though it never admitted that the evidence of one heretic in favour of another had the slightest validity.[391] Similarly the Inquisition permitted, indeed encouraged, husbands to testify against their wives, children against parents, servants against masters; though their favourable testimony was rejected.[392] The rules as regards age seem to have varied in different countries; but certainly it is, generally speaking, true that persons were permitted to give evidence before the Holy Office at an age when their testimony would not have been received in a lay court. We even hear of a case at Montségur of a child of six incriminating members of his own family and many others. The ordinary rules regarding the status and character of witnesses were similarly in abeyance. Criminals and men of infamous reputation, homicides, harlots, proved perjurers and excommunicates were none of them debarred from giving evidence against heretics.

Information might be forthcoming from the confessional. What were the duties of a father-confessor in such a case? There was, on the one hand, the fact of the extraordinary heinousness of this offence which had necessitated the creation of a special court for its suppression; but, on the other hand, the institution of the confessional had to be safeguarded and a feeling of security be assured to the penitent, without which he could not be expected to make a full and free confession of all his sins, whatever their magnitude. The solution was that the granting of absolution, upon an avowal of heresy, lay outside the powers of an ordinary confessor; he must refer the matter to his superiors. The question coming up before the Council of Tarragona in 1242, it was indeed decided that, although a confessor granting absolution for heresy without consulting his bishop merited censure, nevertheless his grant of absolution, if duly certified by himself, should entitle the penitent to a limited protection, i.e. immunity from temporal penalties. This, however, was an isolated ruling, and it was generally recognized that heresy was a ‘reserved’ case.

Absolution by an ordinary confessor was invalid and could be no safeguard from the institution of inquisitorial proceedings against a penitent, should evidence of heresy be preferred against him. But what if, in spite of his knowledge that he could not obtain absolution from his confessor, a penitent incriminated himself; what if he, inadvertently perhaps, incriminated others? Was information derived by a confessor in such a way sacrosanct, because obtained in the confessional? Not apparently in Toulouse and Carcassonne at all events. There priests were positively enjoined to utilize the hearing of confessions to make diligent enquiry concerning heretics, their believers and fautors, and also to confide carefully to writing anything they learnt. They were also to take the penitent before the bishop or his vicar, so that he might there repeat his testimony. But if the penitent was unwilling to do this, the priest was ‘notwithstanding this’ to seek advice from expert and God-fearing persons, as to how he should proceed further. What this must involve is not specified; but clearly the only conceivable further proceedings are either to bring more pressure to bear upon the penitent, or else to use his evidence without his consent. Even if the latter never happened, the former course is not in strict accordance with the rules that should regulate the confessional.[393]