[1] Decretals, cap. xv, De Hæreticis, lib. v, tit. vii. Mon. Germ., Leges, sect. iv, vol. ii, p. 196.
But when we consider how these laws were carried out in practice, we must admit that the Church did have some share in the death sentence. We have already seen that the Church excommunicated those princes who refused to burn the heretics which the Inquisition handed over to them. The princes were not really judges in this case; the right to consider questions of heresy was formally denied them.[1] It was their duty simply to register the decree of the Church, and to enforce it it according to the civil law. In every execution, therefore, a twofold authority came into play: the civil power which carried out its own laws, and the spiritual power which forced the State to carry them out. That is why Peter Cantor declared that the Cathari ought not to be put to death after an ecclesiastical trial, lest the Church be compromised: "Illud ab eo fit, cujus auctoritate fit," he said, to justify his recommendation.[2]
[1] Cf. Sexto, v. ii, cap. xi, and xviii. De Hæreticis, in Eymeric, Directorium, p. 110.
[2] Verbum abbreviatum, cap. lxxvii, P.L., vol. ccv, col. 231.
It is therefore erroneous to pretend that the Church had absolutely no part in the condemnation of heretics to death. It is true that this participation of hers was not direct and immediate; but, even through indirect, it was none the less real and efficacious.[1]
[1] In Spain, the manner in which the Inquisition abandoned heretics to the secular arm denoted a real participation of the State in the execution of heretics. The evening before the execution the Inquisitors brought the King a small fagot tied with ribbons. The King as once requested "that this fagot be the first thrown upon the fire in his name." Cf. Baudrillart, A propos de l'Inquisition, in the Revue Pratique d'Apologétique, July 15, 1906, p. 354, note.
The judges of the Inquisition realized this, and did their best to free themselves of this responsibility which weighed rather heavily upon them. Some maintained that in compelling the civil authority to enforce the existing laws, they were not going outside their spiritual office, but were merely deciding a case of conscience. But this theory was unsatisfactory. To reassure their consciences, they tried another expedient. In abandoning heretics to the secular arm, they besought the state officials to act with moderation, and avoid "all bloodshed and all danger of death." This was unfortunately an empty formula which deceived no one. It was intended to safeguard the principle which the Church had taken for her motto: Ecclesia abhorret a sanguine. In strongly asserting this traditional law, the Inquisitors imagined that they thereby freed themselves from all responsibility, and kept from imbruing their hands in bloodshed. We must take this for what it is worth. It has been styled "cunning" and "hypocrisy;"[1] let us call it simply a legal fiction.
[1] Lea, op. cit., vol. i, p. 224.
. . . . . . . .
The penalty of life imprisonment and the penalty of confiscation inflicted upon so many heretics, was like the death penalty imposed only by the secular arm. We must add to this banishment, which was inscribed in the imperial legislation, and reappeared in the criminal codes of Lucius III and Innocent III. These several penalties were by their nature vindicative. For this reason they were particularly odious, and have been the occasion of bitter accusations against the Church.