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

by Henry Charles Lea

All this is interesting as an illustration of the spirit which pervaded every act of the Inquisition, but in reality no advocate could be of material service to the accused, save in the most exceptional cases. The men who organized the Holy Office knew too well what they wanted to leave open any possibilities of which even the shrewdest advocate could take advantage, and it was admitted on all hands as a recognized fact that there was no method of defence save disabling the witnesses for the prosecution. It has been seen that enmity was the only source of disability in a witness, and this had to be mortal—there must have been bloodshed between the parties, or other cause sufficient to induce one to seek the life of the other. If, therefore, the case rested on witnesses of this kind, their testimony had to be rejected and the prosecution fell. As this was the only possible mode of escape, the cruelty of withholding from the prisoner the names of the adverse witnesses becomes doubly conspicuous. He was forced to grope around in the dark and blindly name such persons as he imagined might have a hand in his misfortunes. If he failed to hit upon any who appeared in the case, the evidence against him was conclusive, as far as it went. If he chanced to name some of the witnesses, he was interrogated as to the causes of enmity; the inquisitor examined into the facts of the alleged quarrel, and decided as he saw fit as to the retention or the rejection of their testimony. Conscientious jurists like Gui Foucoix and inquisitors like Eymerich warned their brethren that as the accused had so slender a chance of guessing the sources of evidence, the judge ought to investigate for himself and discard any that seemed to be the product of malice; but there were others who sought rather to deprive the poor wretch of every straw that might postpone his sinking. One device was to ask him, as though casually, at the end of his examination, whether he had any enemies who would so disregard the fear of God as to accuse him falsely, and if, thus taken unawares, he replied in the negative, he debarred himself from any subsequent defence; or the most damaging witness would be selected and the prisoner be asked if he knew him, when a denial would estop him from claiming enmity. It is easy to imagine other tricks by which shrewd and experienced inquisitors could save themselves the trouble of admitting the accused to even the nugatory form of defence to which alone he was entitled. As to allowing him to call witnesses in his favor, except to prove enmity of the accusers, it was never thought of in ordinary cases. By a legal fiction, the inquisitor was supposed to look at both sides of the case, and to take care of the defence as well as of the prosecution. If the accused failed to guess the names of enemies among the witnesses and to disable their testimony, he was condemned.[400]

In England, under the barbarous custom of the peine forte et dure, a prisoner who refused to plead either guilty or not guilty was pressed to death, because the trial could not go on without either confession or defence. Cruel as was this expedient, it was the outcome of a manly sense of justice, which based its procedure on the rule that the worst felon should have a fair opportunity to prove his innocence. Far worse was the system of the Inquisition, which was equally resolved that its culprits should have no such easy method of escape as a refusal to plead. It had no scruples as to proceeding in such cases, and the obstinacy of the accused only simplified matters. The refusal was an act of contumacy, equivalent to disobeying a summons to appear, or it was held to be tantamount to a confession, and the obdurate prisoner was forthwith handed over to the secular arm as an impenitent heretic, fit only for the stake. The use of torture, however, rendered such cases rare.[401]

The enviable simplicity which the inquisitorial process thus assumed in the absence of counsel and of all practical opportunities for defence can perhaps best be illustrated by one or two cases. Thus in the Inquisition of Carcassonne, June 19, 1252, P. Morret is called up and asked if he wishes to defend himself against the matters found in the instructio or indictment against him. He has nothing to allege except that he has enemies, of whom he names five. Apparently he did not happen to guess any of the witnesses, for the case proceeded by reading the evidence to him, after which he is again asked thrice if he has anything further to say. To this he replies in the negative, and the case ends by assigning January 29 for the rendering of sentence. Two years later, in 1254, at Carcassonne, a certain Bernard Pons was more lucky, for he happened to guess aright in naming his wife as an inimical witness, and we have the proceedings of the inquest held to determine whether the enmity was mortal. Three witnesses are examined, all of whom swear that she is a woman of loose character; one deposes that she had been taken in adultery by her husband; another that he had beaten her for it, and the third that he had recently heard her say that she wished her husband dead that she might marry a certain Pug Oler, and that she would willingly become a leper if that would bring it about. This would certainly seem sufficient, but Pons appears nevertheless not to have escaped. So thoroughly hopeless, indeed, was the prospect of any effort at defence, that it frequently was not even attempted, and the accused, like Arnaud Fabri at Carcassonne, August 20, 1252, when asked if he wished a copy of the evidence against him, would despairingly decline it. It was a customary formula in a sentence to state that the convict had been offered opportunity for defence and had not availed himself of it, showing how frequently this was the case.[402]

In the case of prosecution of the dead, the children or the heirs were scrupulously cited to appear and defend his memory, as they were necessarily parties to the case through the disabilities and confiscation following upon condemnation. Proclamation was also made publicly in the churches inviting any one else who chose to appear or who had any interest in the matter by reason of holding property of the deceased; and then a third public notice was given that if no one came forward on the day named, definitive sentence would be rendered. Thus in a case occurring in 1327, Jean Duprat, Inquisitor of Carcassonne, orders the priests of all the churches in the dioceses of Carcassonne, Narbonne, and Alet to publish the notice during divine service on every Sunday and feast-day till the day of hearing, and to send him a notarial attestation of their action. The sentences in these cases are careful to recite these notices so sedulously served on all concerned; but notwithstanding this display of a desire to do exact justice, the proceedings were quite as hollow a mockery as those against the living. That it was so recognized is seen at the auto of 1309 at Toulouse, where there were four dead persons sentenced, and it is stated that in one case no one appeared, and in the other three the heirs obeyed the citation but renounced all defence. In the case of Castel Fabri, before alluded to, at Carcassonne, in 1300, where the estate was very large, the heirs appeared, but were denied all opportunity of defence by Nicholas d’Abbeville, the inquisitor; and in that of Pierre de Tornamire, though the heirs, as we have seen, succeeded in reversing the judgment through the gross informality of the proceedings, it was not until after a struggle which lasted for thirty-two years, during which time the estate must have been sequestrated. Sometimes, when death-bed heretications had occurred, the children put in the plea of non compos, which was admitted to be good, but as none of the family were allowed to testify, and only disinterested witnesses of approved orthodoxy were received, instances of success must have been rare indeed.[403]

Practically every avenue of escape was closed to those who fell into the hands of the inquisitor. Technically the accused had a right, as in other cases, to recuse his judge, but this was a dangerous experiment, and we hardly need the assurance of Bernardo di Como that it was virtually unknown. Ignorance was no defence, and its mere assertion, according to Bernard Gui, only rendered a man worthy of condemnation along with his master, the father of lies. Persistent denial of the offence charged, even when accompanied with profession of faith and readiness to submit to the mandates of the Church, was obstinacy and impenitence which precluded all hope of mercy. Even suicide in prison was equivalent to confession of guilt without repentance. It is true that insanity or drunkenness might be urged in extenuation of the utterance of heretical words, and this might mitigate the sentence, if there were due contrition and seeking for reconciliation, but admission of the conclusion at which the inquisitor had arrived from his ex parte inquest was the predetermined result, and the only alternative to this was abandonment to the secular arm.[404]

That plain-spoken friar, Bernard Délicieux, uttered the literal truth when he declared, in the presence of Philippe le Bel and all his court, that if St. Peter and St. Paul were accused of “adoring” heretics and were prosecuted after the fashion of the Inquisition, there would be no defence open for them. Questioned as to their faith, they would answer like masters in theology and doctors of the Church, but when told that they had adored heretics, and they asked what heretics, some names, common in those parts, would be mentioned, but no particulars would be given. When they would ask for statements as to time and place, no facts would be furnished, and when they would demand the names of the witnesses these would be withheld. How, then, asked Bernard, could the holy apostles defend themselves, especially when any one who wished to aid them would himself be attacked as a fautor of heresy. It was so. The victim was enveloped in a net from which there was no escape, and his frantic struggles only twisted it more tightly around him.[405]

Theoretically, indeed, an appeal lay to the pope from the Holy Office, and to the metropolitan from the bishop, for denial of justice or irregularity of procedure, but it had to be made before sentence was rendered, as condemnation was final. Possibly this may have held out some prospect of benefit in the case of bishops exercising their inquisitorial jurisdiction. In that of inquisitors, when “apostoli,” or letters remanding the case to the Holy See, were demanded, it rested with them to grant affirmative (“reverential”) ones, or negative ones. The former admitted the transfer of the case; the latter kept it in the inquisitor’s hands unless it was formally taken from him by the pope. This, it is safe to say, could rarely happen, and, as the proceeding was an intricate one, it could only be resorted to by experts. A man like Master Eckart, supported by the whole Dominican Order, could undertake it, even though in the end he fared no better at the hands of John XXII. than he would have done at those of the Archbishop of Cologne. So when, in 1323, the Sire de Partenay, one of the most powerful nobles of Poitou, was cited for heresy by Friar Maurice, the Inquisitor of Paris, and was thrown into the Temple by Charles le Bel, he appealed from Maurice as a judge prejudiced by personal hatred. Charles sent him under guard to John XXII. at Avignon, who at first refused to entertain the appeal, but at length, by the influential intercession of Partenay’s friends, was induced to appoint several bishops as assessors to the inquisitor, and after long-protracted proceedings the interest of Partenay was sufficient to obtain his liberation. Cases like these, however, are wholly exceptional and have no bearing upon the thousands of humble folk and “petite noblesse” who filled the prisons of the Inquisition and figured in its autos de fé. The manuals for inquisitors, indeed, make no scruple in instructing them as to the devices and deceits by which they can elude all attempts to appeal when through disregard of rules they have exposed themselves to it.[406]

There was another class of cases, however, in which the interference of the pope occasionally gave relief, for the Holy See was autocratic and could set aside all rules. The curia was always greedy for money, and, outside of Italy, had no share in the confiscations. It can, therefore, readily be imagined that men of wealth whose whole property was at stake might well consent to divide it with the papal court, whose all-powerful intervention would thereby be secured. As early as 1245 the bishops of Languedoc are found complaining to Innocent IV. of the number of heretics who thus obtain exemption. Not only those undergoing trial, but those fearing to be cited, those excommunicated for contumacy, or legitimately sentenced, escape the jurisdiction of the Inquisition and enjoy immunity on the strength of letters granted by the papal penitentiaries. I have met with a number of special cases of this interference of the Holy See with the Holy Office, one at least of which indicates the means of persuasion employed. In letters of December 28, 1248, the papal penitentiary Algisius orders the release, without confiscation, of six prisoners of the Inquisition who had confessed to heresy, one of the reasons assigned being the liberal contributions which they had made to the cause of the Holy Land. It is no wonder that the inquisitors sometimes grew mutinous under this aggravating interference, of which they could so readily guess the motive, and, on one occasion at least, they gave the curia a lesson. Some inhabitants of Limoux, in 1249, condemned to wear crosses and perform heavy penances, obtained from Innocent IV. an order for their mitigation, whereupon the inquisitors, in their irritation, went a step further and absolved the penitents without reserve. Accepting this rebuke, Innocent commanded the original sentence to be reimposed, and the unlucky culprits gained nothing by their effort. Less questionable was the interference, in 1255, of Alexander IV. in the case of Aimeric de Bressols of Castel-Sarrazin, who had been condemned for heretical acts committed thirty years before. He represented that he had performed most of the penance enjoined on him and that he was unable, through old age and poverty, to accomplish the rest, whereupon the pope mercifully authorized the Inquisitors to commute it into other pious works. A somewhat remarkable case occurred in 1371, when Gregory XI. authorized the Inquisitor of Carcassonne to release Bidon de Puy-Guillem, condemned to perpetual imprisonment, and repentant, the reason given for papal intervention being that there existed no other power to commute the sentence.[407]

This kind of papal intervention, however, was in contravention of the law and not in its fulfilment, and need not be weighed in considering the results of the inquisitorial process. That result, as might be expected, was condemnation in some form or other so uniformly that it may be regarded as inevitable. In the register of Carcassonne from 1249 to 1258, comprising about two hundred cases, there does not occur a single instance of a prisoner discharged as innocent. It is true that the interrogatory of Alizaïs Debax, March 27, 1249, is followed by the note “she was not heard a second time because she was considered innocent,” but this apparent exception is nullified by a second memorandum “crucesignata est”—she was condemned to the public infamy of wearing crosses, probably to confirm the popular impression that the Inquisition never missed its mark. A man against whom there was no evidence to justify conviction and who yet would not confess himself guilty, was kept in prison indefinitely at the discretion of the inquisitor; at length, if the proof against him was only incidental and not direct, and the suspicion was light, he might be mercifully discharged under bail, with orders to stand at the door of the Inquisition from breakfast-time until dinner, and from dinner until supper, until some further testimony should turn up against him, and the inquisitor be able to prove the guilt so confidently assumed. On this side of the Alps it was a recognized rule that no one should be acquitted. The utmost stretch of justice, when the accusation failed entirely, was a sentence of not proven. The charges were simply declared not to be substantiated, and the inquisitors were carefully warned never to pronounce a man innocent, so that there might be no bar to subsequent proceedings in case of further evidence. Possibly in Italy, in the fourteenth century, this rule may have been neglected, for Zanghino gives a formula of acquittal, based, significantly enough, on the evidence being proved to be malicious.[408]

Clement V. recognized the injustice wrought under this system when he embodied in the canon law a declaration that inquisitors abused to the injury of the faithful the wise provisions made for the defence of the faith; when he forbade them from falsely convicting any one, or acting either for or against the accused through love, hate, or the hopes of gain, under penalty of ipso facto excommunication, removable only by the Holy See. Bernard Gui hotly denied these assertions, which he declared to be precisely those with which the heretics defamed the Holy Office to its great damage. To impute heresy to the innocent, he said, is worthy of damnation, but none the less so is it to slander the Inquisition. In spite, he adds, of the refutation of the accusations brought against it, this canon assumes their truth and the heretics exult over its disgrace. If the heretics exulted, their rejoicings were premature. The Inquisition went its way in the accustomed paths, and Clement’s well-meant effort at reform proved wholly unavailing.[409]