A History of the Inquisition of the Middle Ages; volume I

by Henry Charles Lea

CHAPTER IX.
THE INQUISITORIAL PROCESS.

THE procedure of the episcopal courts, as described in a former chapter, was based on the principles of the Roman law, and whatever may have been its abuses in practice, it was equitable in theory, and its processes were limited by strictly defined rules. In the Inquisition all this was changed, and if we would rightly appreciate its methods we must understand the relations which the inquisitor conceived to exist between himself and the offenders brought before his tribunal. As a judge, he was vindicating the faith and avenging God for the wrongs inflicted on him by misbelief. He was more than a judge, however, he was a father-confessor striving for the salvation of the wretched souls perversely bent on perdition. In both capacities he acted with an authority far higher than that of an earthly judge. If his sacred mission was accomplished, it mattered little what methods were used. If the offender asked mercy for his unpardonable crime it must be through the most unreserved submission to the spiritual father who was seeking to save him from the endless torment of hell. The first thing demanded of him when he appeared before the tribunal was an oath to stand to the mandates of the Church, to answer truly all questions asked of him, to betray all heretics known to him, and to perform whatever penance might be imposed on him; and refusal to take this oath was to proclaim himself at once a defiant and obstinate heretic.[357]

The duty of the inquisitor, moreover, was distinguished from that of the ordinary judge by the fact that the task assigned to him was the impossible one of ascertaining the secret thoughts and opinions of the prisoner. External acts were to him only of value as indications of belief, to be accepted or rejected as he might deem them conclusive or illusory. The crime he sought to suppress by punishment was purely a mental one—acts, however criminal, were beyond his jurisdiction. The murderers of St. Peter Martyr were prosecuted, not as assassins, but as fautors of heresy and impeders of the Inquisition. The usurer only came within his purview when he asserted or showed by his acts that he considered usury no sin; the sorcerer when his incantations proved that he preferred to rely on the powers of demons rather than those of God, or that he entertained wrongful notions upon the sacraments. Zanghino tells us that he witnessed the condemnation of a concubinary priest by the Inquisition, who was punished not for his licentiousness, but because while thus polluted he celebrated daily mass and urged in excuse that he considered himself purified by putting on the sacred vestments. Then, too, even doubt was heresy; the believer must have fixed and unwavering faith, and it was the inquisitor’s business to ascertain this condition of his mind.[358] External acts and verbal professions were as naught. The accused might be regular in his attendance at mass; he might be liberal in his oblations, punctual in confession and communion, and yet be a heretic at heart. When brought before the tribunal he might profess the most unbounded submission to the decisions of the Holy See, the strictest adherence to orthodox doctrine, the freest readiness to subscribe to whatever was demanded of him, and yet be secretly a Catharan or a Vaudois, fit only for the stake. Few, indeed, were there who courageously admitted their heresy when brought before the tribunal, and to the conscientious judge, eager to destroy the foxes which ravaged the vineyard of the Lord, the task of exploring the secret heart of man was no easy one. We cannot wonder that he speedily emancipated himself from the trammels of recognized judicial procedure which, in preventing him from committing injustice, would have rendered his labors futile. Still less can we be surprised that fanatic zeal, arbitrary cruelty, and insatiable cupidity rivalled each other in building up a system unspeakably atrocious. Omniscience alone was capable of solving with justice the problems which were the daily routine of the inquisitor; human frailty, resolved to accomplish a predetermined end, inevitably reached the practical conclusion that the sacrifice of a hundred innocent men were better than the escape of one guilty.

Thus of the three forms of criminal actions, accusation, denunciation, and inquisition, the latter necessarily became, in place of an exception, the invariable rule, and at the same time it was stripped of the safeguards by which its dangerous tendencies had been in some degree neutralized. If a formal accuser presented himself, the inquisitor was instructed to discourage him by pointing out the danger of the talio to which he was exposed by inscribing himself; and by general consent this form of action was rejected in consequence of its being “litigious”—that is, because it afforded the accused some opportunities of defence. That there was danger to the accuser, and that the Inquisition practically discouraged the process, was shown in 1304, when an inquisitor, Frà Landulfo, imposed a fine of one hundred and fifty ounces of gold on the town of Theate because it had officially accused a man of heresy and had failed in the proof. The action by denunciation was less objectionable, because in it the inquisitor acted ex officio; but it was unusual, and the inquisitorial process at an early period became substantially the only one followed.[359]

Not only, as we shall see, were its safeguards withdrawn, but virtually the presumption of guilt was assumed in advance. About 1278 an experienced inquisitor lays down the rule as one generally received, that in places much suspected of heresy every inhabitant must be cited to appear, must be forced to abjure heresy and to tell the truth, and be subjected to a detailed interrogatory about himself and others, in which any lack of frankness will subject him hereafter to the dreadful penalties of relapse. That this was not a mere theoretical proposition appears from the great inquests held by Bernard de Caux and Jean de Saint-Pierre in 1245 and 1246, when there are recorded two hundred and thirty interrogatories of inhabitants of the little town of Avignonet, one hundred of those of Fanjeaux, and four hundred and twenty of Mas-Saintes-Puelles.[360]

From this responsibility there was no escape for any one who had reached the age at which the Church held him able to answer for his own acts. What this age was, however, was a subject of dispute. The Councils of Toulouse, Béziers, and Albi assumed it to be fourteen for males and twelve for females, when they prescribed the oath of abjuration to be taken by the whole population, and this rule was adopted by some authorities. Others contented themselves with the definition that the child must be old enough to understand the purport of an oath, while there were not wanting high authorities who reduced the age of responsibility to seven years, and those who more charitably fixed it at nine and a half for girls and ten and a half for boys. It is true that in Latin countries, where minority did not cease until the age of twenty-five, no one beneath that age had a standing in court, but this was readily evaded by appointing for him a “curator,” under whose shadow he could be tortured and condemned; and when we are told that no one below the age of fourteen should be tortured, we are left to conjecture the minimum age of responsibility for heresy.[361]

Nor could the offender escape by absenting himself. Absence was contumacy and only increased his guilt, by adding a fresh and unpardonable offence, besides being technically tantamount to confession. In fact, before the Inquisition was thought of, the inquisitorial process was rendered absolute in ecclesiastical jurisprudence precisely to meet such cases, as when Innocent III. degraded the Bishop of Coire on evidence taken ex parte by his commissioners, after the bishop had repeatedly refused to appear before them; and the importance of this decision is shown by the fact that Raymond of Pennaforte embodied it in the canon law to prove that in cases of contumacy the testimony taken in an inquisitio was valid ground for condemnation without a litis contestatio or contest between the prosecution and the defence. Accordingly, when a party failed to appear, after due citation published in his parish church and proper delay, there was no hesitation in proceeding against him to conviction in absentia—the absence of the culprit being piously supplied by “the presence of God and the Gospels” when the sentence was rendered. Contumacious absence, in fact, was in itself enough. Frederic II. in his earliest edict, in 1220, following the Lateran Council of 1215, had declared that the suspect who did not clear himself within twelve months was to be condemned as a heretic, and this was applied to the absent, who were ordered to be sentenced after a year’s excommunication, whether anything was proved against them or not. Enduring excommunication for a year without seeking its removal was evidence of heresy as to the sacraments and the power of the keys, if as to nothing else; and some authorities were so rigid with regard to this that the Council of Béziers denounced the punishment of heresy for all who remained excommunicate for forty days. Even the delay of a twelvemonth, however, was evaded, for inquisitors were instructed when citing the absent to summon them, not only to appear, but to purge themselves within a given time, and then as soon as it had elapsed the accused was held to be convicted. Yet the extreme penalty of relaxation was rarely enforced in such cases, and the Inquisition contented itself generally with imprisoning for life those against whom no offence was proved save contumacy, unless, indeed, when caught they refused to submit and abjure.[362]

As little was there any escape by death. It mattered not that the sinner had been called to the judgment-seat of God, the faith must be vindicated by his condemnation and the faithful be edified by his punishment. If he had incurred only imprisonment or the lighter penalties, his bones were simply dug up and cast out. If his heresy had deserved the stake, they were solemnly burned. A simulacrum of defence was allowed to heirs and descendants, on whom were visited the heavy penalties of confiscation and personal disabilities. How unflagging was the zeal with which these mortuary prosecutions were sometimes carried on is visible in the case of Armanno Pongilupo of Ferrara, over whose remains war was waged between the Bishop and the Inquisitor of Ferrara for thirty-two years after his death, in 1269, ending with the triumph of the Inquisition in 1301. No prescription of time barred the Church in these matters, as the heirs and descendants of Gherardo of Florence found when, in 1313, Frà Grimaldo the inquisitor commenced a successful prosecution against their ancestor who had died prior to 1250.[363]

At best the inquisitorial process was a dangerous one in its conjunction of prosecutor with judge, and when it was first introduced in ecclesiastical jurisprudence careful limitations to prevent abuse were felt to be absolutely essential. The danger was doubled when the prosecuting judge was an earnest zealot bent on upholding the faith and predetermined on seeing in every prisoner before him a heretic to be convicted at any cost; nor was the danger lessened when he was merely rapacious and eager for fines and confiscations. Yet the theory of the Church was that the inquisitor was an impartial spiritual father whose functions in the salvation of souls should be fettered by no rules. All the safeguards which human experience had shown to be necessary in judicial proceedings of the most trivial character were deliberately cast aside in these cases, where life and reputation and property through three generations were involved. Every doubtful point was decided “in favor of the faith.” The inquisitor, with endless iteration, was empowered and instructed to proceed summarily, to disregard forms, to permit no impediments arising from judicial rules or the wrangling of advocates, to shorten the proceedings as much as possible by depriving the accused of the ordinary facilities of defence, and by rejecting all appeals and dilatory exceptions. The validity of the result was not to be vitiated by the omission at any stage of the trial of the forms which had been devised to prevent injustice and subject the judge to responsibility.[364]

Had the proceedings been public, there might have been some check upon this hideous system, but the Inquisition shrouded itself in the awful mystery of secrecy until after sentence had been awarded and it was ready to impress the multitude with the fearful solemnities of the auto de fé. Unless proclamation were to be made for an absentee, the citation of a suspected heretic was made in secret. All knowledge of what took place after he presented himself was confined to the few discreet men selected by his judge, who were sworn to inviolable silence, and even the experts assembled to consult over his fate were subjected to similar oaths. The secrets of that dismal tribunal were guarded with the same caution, and we are told by Bernard Gui that extracts from the records were to be furnished rarely and only with the most careful discretion. Paramo, in the quaint pedantry with which he ingeniously proves that God was the first inquisitor and the condemnation of Adam and Eve the first model of the inquisitorial process, triumphantly points out that he judged them in secret, thus setting the example which the Inquisition is bound to follow, and avoiding the subtleties which the criminals would have raised in their defence, especially at the suggestion of the crafty serpent. That he called no witnesses is explained by the confession of the accused, and ample legal authority is cited to show that these confessions were sufficient to justify the conviction and punishment. If this blasphemous absurdity raises a smile, it has also its melancholy side, for it reveals to us the view which the inquisitors themselves took of their functions, assimilating themselves to God and wielding an irresponsible power which nothing short of divine wisdom could prevent from being turned by human passions into an engine of the most deadly injustice. Released from all the restraint of publicity and unrestricted by the formalities of law, the procedure of the Inquisition, as Zanghino tells us, was purely arbitrary. How the inquisitors construed their powers and what use they made of their discretion we shall have abundant opportunity of seeing hereafter.[365]