Eymeric laid it down that at all times the application must be moderate and that there must never be any effusion of blood. The term ‘moderate’ is vague; and it is clear that there was no strict general rule, the determining factor here, as so often with the Inquisition, being the discretion of the judge.[414] The unhappy victim, on being brought into the chamber, was first of all shown the instruments of torment and urged to confess without recourse being had to them. In some cases this alone was sufficient. But if a confession was not immediately forthcoming, the prisoner—male or female, it made no difference—was stripped naked and bound by the executioners. A second exhortation to confess followed. If still there was no confession, the victim was then actually subjected to the pain of the rack, the pulleys, the strappado and the other devices of calculated cruelty, which were regarded as appropriate for the coercion of recalcitrant suspect or unwilling witness. Continued refusal to speak led to increase in the severity of the application; further obduracy with increase in the severity of the type of torture. The refinements of cruelty in the machines and devices at the inquisitor’s disposal were so exquisite that it is marvellous with what constancy they were often endured. There were many, no doubt, who submitted at the simple threat of torture or at the first turn of the screw; others who with almost superhuman endurance bore frightful extremities of pain.
Note.—The important subject of the influence exerted by the procedure of the Inquisition upon the civil courts of Europe has never been thoroughly worked out. There is partial treatment of it in Esmein’s Histoire de la Procédure Criminelle en France; English version, A History of Continental Criminal Procedure; H. Brunner, Die Entstehung der Schwurgerichte (1872); C. V. Langlois, L’Inquisition après des travaux récents; P. Fournier, Les Officialités au Moyen Age; H. C. Lea, Superstition and Force, esp. pp. 428-590. Vol. v of the Continental Legal History Series, published by the Association of American Law Schools, while mainly based on Esmein’s study of Criminal Procedure in France, is of wider scope and traces the inquisitorial system in Europe generally. While the system of inquisitio, derived from the later Roman Empire, was not passed on to the civil courts of Europe solely through the inquisitio haereticae pravitatis, it is the case that ‘The Church was able to furnish the secular courts with a lesson and a model.... By its example it paved the way for the substitution, consummated in the 1500’s, of the inquisitorial procedure for the accusatory procedure in every country of Europe.’ Again: ‘This system, originally employed for prosecutions for heresy, afterwards for all crimes, became, under the name of “procédure à l’extraordinaire,” the system of common law in force in the royal jurisdictions for the prosecution of serious crimes until 1789.’—A History of Continental Criminal Procedure, p. 10 and pp. 10-11, note.
CHAPTER V - INQUISITORIAL PENALTIES
Acquittals being virtually unknown,[415] nearly every case brought before the Holy Office involved the sentence of one penalty or another. The word ‘penalty’ is not technically exact. Strictly speaking, the Inquisition was concerned not with crimes and punishments, but with spiritual errors and penances.[416] Thus, when the tribunal consigned some one to prison, its formula ran that the man in question shall betake himself to prison and there penance himself on a diet of bread and water. No confessor will regard the mere expression of contrition as sufficient in itself; nor will the genuine penitent be satisfied. Penance is the outward and visible sign of sincere repentance, and an earnest of future amendment of life. All the penalties inflicted by the Inquisition had this expiatory character.[417] Some of them were of quite a trivial description. The penitent ‘suspect’ might simply be enjoined to hear Mass on so many Sundays and festivals, or—if his commercial practice suggested unsoundness of doctrine on the subject of interest—to undertake not to exact usury in the future or to promise to restore ill-gotten gains.[418] But, as a rule, the penance was a much more serious matter. One of the most frequent was that of pilgrimages.[419] These were of various kinds. In the earlier days of the Inquisition the penitent[420] was often sent to Palestine on crusade against the infidel. But after the failure of St. Louis’ expedition and the fall of the Kingdom of Jerusalem, the crusade ceased to find a place among inquisitorial penances. Ordinary pilgrimages were classified as greater or less. The former took the penitent out of his own country and involved long travelling; the latter were to shrines in his own country. Thus for a Frenchman Rome, the shrine of St. Thomas at Canterbury, Cologne, St. James of Compostella, Constantinople would come under the first category; Paris, Boulogne, Bordeaux, Vienne under the latter. The undertaking of the longer journeys might be a most severe imposition. The penitent had to abandon his work and set out upon travels which might well occupy many months and even years. He probably had to endure much real suffering, fatigue, and privation. In the case of the crusade, and probably in other pilgrimages as well, there was an element of personal danger. In the pilgrim’s absence what happened to his family and dependents? In many instances one supposes that on his return after a long absence he must have found his occupation gone. Those condemned to make pilgrimages received from the inquisitor letters which explained their itinerary and might give instructions as to certain additional penances they had to undergo, while they at the same time served as safe-conducts, of which there might be much need in localities where popular feeling was strong against heretics. Pilgrims were required to bring back with them written attestations, signed by the chaplains at shrines they were ordered to visit, in proof that they had actually carried out the prescribed programme.[421]
The penance of pilgrimage was often united with two others—scourging and the wearing of crosses, or other marks on the clothing, indicative of the penitent heretic. Flagellation by itself was regarded as one of the lightest of penances. The Councils of Tarragona (1242) and of Narbonne (1243) fixed it as the penance to be undergone by those who voluntarily made confession during the term of grace—that is, by the least culpable of all possible kinds of heretic. The custom was for the flogging to be inflicted in public and in ceremonious fashion. The penitent was obliged to present himself on the appointed days stripped to the waist, and to bring the rod with him. As a general rule the day appointed was Sunday, and the priest performed the operation of scourging upon the penitent between the reading of the Epistle and of the Gospel during Mass. Whether the operation was painful or not is disputed. One commentator supposes that it was no light matter and that the penitent was soundly whipped; another argues that, as the whipping was done at the altar by inexperienced hands and the sufferer was in a position to cry out and resist during divine service, the humiliation was the most severe part of the penance.[422] One may perhaps conclude that the severity of the flagellation depended very much upon the intention of the inquisitors and the strength of arm of the ministering priest. Sometimes the sufferer might have to submit to the scourging in processions through the streets or in every house in which he had been seen in company with heretics; or, in the case of the pilgrim, at the various shrines visited. Such repeated floggings may or may not have been very painful, but even in days when they would not produce such a sense of shame as now, they must have been very humiliating.
In this respect the wearing of crosses was even worse. The origin of this penance was that during his missionary labours St. Dominic had ordered penitents to wear two small crosses, sewn on the breast of their clothing in token of contrition. The Inquisition adopted the practice and it was very frequently inflicted, being prescribed, like flagellation, for those who voluntarily made confession of heresy. Next to imprisonment this penance figures most often in the sentences of Bernard Gui; it was rather less extensively used latterly. The small marks which St. Dominic had required became under the Inquisition very large ones—as a rule two-and-a-half palms in height, two in breadth. They were saffron in colour and had to be worn one on the breast, the other on the back. Other symbols besides crosses were sometimes used. Thus false witnesses had to wear the symbol of red tongues, prisoners liberated on bail hammers, sorcerers the representation of demons. The wearing of distinguishing marks was designed to be, and was felt to be, a less tolerable penalty than flogging. The shameful garb had to be worn continuously indoors and out, exposing the wearer at all times to the jeers, if not the fanatical hostility, of the crowd. The penance was enjoined sometimes for an indefinite period, and so long as he had to wear it, it would be difficult for the penitent to obtain employment. It is plain that evasion was frequently attempted. The Council of Béziers (1233) prescribed confiscation of goods for those who either refused to wear the crosses or tried to conceal them.[423] The Council of Valence (1248) went further and decreed that evasion should be regarded as a sign of impenitent heresy. But evidently the hardships attendant upon this penance were so great that the Church felt it must do something to mitigate their severity, and the Council of Béziers (1246) commanded that penitents wearing crosses should not be subjected to ridicule or excluded from the transaction of business.[424]
There were penalties of a pecuniary nature—the exaction of fines, the confiscation of property. In earlier days, when it was yet thought of as contrary to the principles of their origin that the Friars should receive money on any pretext, it was felt to be repugnant that inquisitors, being friars, should exact fines. On the other hand, from of old it had been regarded as a normal and praiseworthy form of showing genuine contrition to give alms; and it would have been surprising had this sort of penance been found absent from Inquisitorial practice. From the time of the Council of Béziers (1246) onwards, it seems to have been recognized that the exaction of a fine was a perfectly legitimate form of penance, the proceeds to be used for the maintenance of inquisitorial prisons and similar necessary expenses. Eymeric laid it down that this penance should be used ‘decently and in such a way as not to give offence to the laity.’[425] A broader interpretation came to be made of the ‘pious’ purposes for which the proceeds of fines might properly be utilized; they might even include public work of general utility, such as the building of bridges.[426] In moderation, the payment of a fine was a form of penance much more easily borne than those already mentioned; and if the money was used for such objects as the erection of a church or chapel or hospital, the maintenance of the poor or other such philanthropic work, it seems an eminently justifiable sort of penalty.