[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.