Mediæval Heresy & the Inquisition

by Arthur Stanley Turberville

Yet another most serious disability, under which the accused laboured, was that he was not allowed the assistance of an advocate, he was thrown entirely on his own resources in making his defence. Innocent III expressly forbade advocates and notaries to lend any aid to heretics or their abettors. The prohibition at first applied only to the case of open and avowed heretics. Eymeric ruled that counsel were in no wise to be denied to the accused, but he followed this up by the qualification, that advocates espousing the cause of a heretic rendered themselves liable to prosecution before the Inquisition, as suspect of heresy themselves for doing so.[394] In actual practice what happened probably was that when the evidence against the accused was clear, he need expect no advocate; but when it was weak, then an advocate might be forthcoming. For if the evidence in support of the charge of heresy was strong, then assistance given to the accused was tantamount to fautorship of heresy, which was in itself a very serious offence. In any case the rôle of advocate was dangerous and there was no inducement to compensate for so grave a risk.

That such assistance was seldom, if ever, actually given seems proved by the absence of any indication of the practice even in the early inquisitorial registers.[395] Very soon, however, it was decided absolutely that the use of advocates was to be prohibited. Such was the ruling of the Council of Albi in 1254; and the regulation soon became general.[396] This was the really inevitable consequence of the view which made the suspect a marked, a tainted man even before he had stood his trial. But certainly one consideration which weighed heavily against the use of advocates was the possibility of the practice encouraging the spread of heresy, though the chances of an advocate’s allowing himself to be infected by his client’s erroneous doctrines were remote. In its attitude towards this question we are once more reminded of the fundamental fact of the Inquisition’s twofold nature. If the inquisitor be considered as a confessor, the accused as a penitent paternally exhorted, lovingly urged to reconciliation, pardon being assured for the truly repentant, what possible need can there be for an advocate?[397] The tribunal gave every facility for the escape of the prisoner from all the possible unhappy consequences of his defamation, down one avenue—confession, penance, reinstatement.

If the defendant was obstinately determined on defending himself, instead of throwing himself upon the mercy of the inquisitor, as representative of the infinite compassion of the Church, he was very much limited in his choice of pleadings. Ignorance was a possible plea—more likely to be accepted in the case of a woman than a man—but inquisitors were on their guard against feigned ignorance. That words complained of were only a lapsus linguae, or an idle jest uttered on the spur of the moment, or in drunkenness, might be accepted as a legitimate excuse. The plea of great perturbation of mind—mortal terror, for instance—might also possibly be accepted; but not the madness of love or the sudden grief of bereavement.[398] To make out a case on these lines was in any event very difficult, and the only device that promised any really good prospect of success was to challenge a witness on the ground that he was actuated by personal malice. But as the witnesses’ names were not disclosed, this was no easy matter. All that the accused could do, was to mention the names of any of his neighbours who might bear him a grudge, on the chance that they might be included among the authors of his defamation.[399] But it was not sufficient to indicate simple ill-will. The charge of heresy was so terrible that it was assumed that little short of mortal enmity would induce anyone to prefer it maliciously. The accused would, therefore, be carefully examined as to the nature of any quarrel with his neighbours that he might allege in his defence. The only purpose for which he was allowed the use of witnesses was to prove the facts of such a quarrel.

It must be clear that even when the presiding judge was a fair-minded, conscientious man, not too fanatical, the chances of effective defence were small. And the prosecution was exceedingly strong. If preliminary inducements, the subtleties of the interrogatory, the absence of means of defence, all proved insufficient to produce the desired confession, it was possible severely to shake the moral of the defendant by subjecting his case to prolonged delay, which was calculated to impose a great strain upon the nerves. Except in rare instances time was no consideration to the Inquisition. Its invincible patience was one of the most terrible of its weapons. It was willing relentlessly to wait, not merely weeks and months, but years and many years. It was quite common for an interval of anything up to ten years to elapse between the date of the first interrogatory and that of the final condemnation. The period might be considerably longer. We hear of a man, first brought to trial in 1301, being sentenced to death in 1319.[400] This slow torture of suspense was generally endured in prison, where the recalcitrant would probably receive frequent visits from the inquisitor or his assistants, who would instruct him and exhort him to make confession. If simple incarceration proved insufficient to overcome the victim’s fortitude, great additional hardships could be introduced—insufficiency of food, comfort, rest.

Finally, the most celebrated weapon which the Inquisition possessed for procuring confession was torture itself. Torture had been known to both Roman and barbarian law, being used even for such minor offences as theft.[401] On the other hand, according to all the best authorities, it was strange to Canon law. It did indeed recognize flogging, but only as a punishment or penance. Gratian laid it down categorically that torture was not to be used as a means of extorting confession. It was not until after the condemnation of the ordeal by the Lateran Council of 1215 that the Church sanctioned its use for this purpose. In the bull, Ad extirpanda, published in 1252 by Innocent IV, the employment of torture was not merely permitted, but enjoined.[402] The rule was thereby laid down, that any sort of torment short of mutilation was to be utilized in order to obtain confessions and information. But the actual infliction of the torture was to be carried out by the secular arm. The idea of the clergy’s personally superintending the infliction of cruelty was very properly repugnant.

The sense of repugnance did not last long, however.[403] The inquisitors of the thirteenth century found Innocent IV’s proviso irksome. The employment of a secular official to assist them in carrying through the inquisitorial process was no doubt inconvenient, and in 1256 Alexander IV overcame the difficulty by granting inquisitors and their assistants the privilege of absolving one another, or giving one another dispensations, for any canonical irregularities they might commit in the pursuance of their duties.[404] This was an oblique reference to torture. This rule was reinforced by Urban IV in 1262.[405] The subterfuge satisfied the scruples of the inquisitors.

The extent to which torture was used no doubt varied in accordance with the character of the inquisitor. In the sentences of Bernard de Caux there is only one passing mention of the practice; there is only one mention of it also in Bernard Gui. Though it is frequently referred to by Geoffrey d’Ablis, this is in a negative way only.[406] It is stated that so and so confessed freely, no torture having to be used. But that torture was being used and with great severity is proved by the intervention of Philip the Fair in 1291 and 1301, and of Clement V in 1306; while in 1311 the Pope endeavoured to moderate the practice by the requirement that torture should not be inflicted save with the concurrence of the bishop of the diocese.[407] Bernard Gui very much resented the restriction, and though in his sentences there is only the one mention of torture, it is clear from his treatise that he thoroughly approved of it, on account of its great utility.[408]

Certainly torture was regarded by inquisitors of the best type, not as a habitual practice, but only as a final measure, to be used solely when other means had failed. Eymeric lays it down that the circumstances justifying its application are that the case against the accused has been half-proved already or that the accused has contradicted himself.[409]

It was a very salutary rule that no prisoner might be tortured more than once; but this humane regulation became a dead-letter. The inquisitors found it galling and surmounted the obstacle with an utterly disgraceful quibble. Torture, they agreed, could not be repeated; but it might be continued.[410] They used this patent sophistry to justify the application of torture an indefinite number of times at indefinite intervals. Thus some of the witches of Arras were tortured forty times, twice in a day.[411] In such cavalier fashion could rules and regulations be treated. The requirement that confessions must be freely made without restraint was satisfied by another similar subterfuge. A confession, which had actually been wrung from the defendant or witness in the physical anguish of torture, was confirmed some two or three days later in some other place than the torture chamber; and this confirmation of the actual confession was officially regarded as the true confession.[412]

There were no exemptions from the administration of torture on the ground of youth, old age or infirmity, except for pregnant women. Old men and women, young children might all be subjected to the process, only in their case the infliction must be light.[413]