A History of The Inquisition of The Middle Ages Volume I Part 16

Naturally the conscientious inquisitor recognized the vicious circle in which he moved and sought to satisfy himself that he could designate infallible signs which would justify the conclusion of heresy. There is ample store of such enumerated. Thus for the Cathari it sufficed to show that the accused had venerated one of the perfected, had asked a blessing, had eaten of the blessed bread or had kept it, had been voluntarily present at an heretication, had entered into the _covenansa_ to be hereticated on the death-bed, etc. For the Waldenses such indications were considered to be the confessing of sins to and accepting penance from those known not to be regularly ordained by an orthodox bishop, praying with them according to their rites by bending the knees with them on a bench or other inclined object, being present with them when they pretended to make the Host, receiving "peace" from them, or blessed bread. All this was easily catalogued, but beyond it lay a region of doubt concerning which authorities differed. The Council of Albi, in 1254, declared that entering a house, in which a heretic was known to be, converted simple suspicion into vehement; and Bernard Gui mentions that some inquisitors held that visiting heretics, giving them alms, guiding them in their journeys, and the like was sufficient for condemnation, but he agrees with Gui Foucoix in not so considering it, as all this might be done through carnal affection or for hire. The heart of man, he adds, is deep and inscrutable, but he seeks to satisfy himself for attempting the impossible by arguing that all which cannot be explained favorably must be admitted as adverse proof. It is a noteworthy fact that in long series of interrogations there will frequently be not a single question as to the belief of the party making confession. The whole energy of the inquisitor was directed to obtaining statements of external acts. The upshot of it all necessarily was that almost everything was left to the discretion of the inquisitor, whose temper had more to do with the result than the proof of guilt or its absence. How insignificant were the tokens on which a man's fate might depend may be understood by a single instance. In 1234 Accursio Aldobrandini, a Florentine merchant in Paris, made the acquaintance of some strangers with whom he conversed several times, giving their servant on one occasion ten sols, and bowing to them when they met, out of politeness. This latter act was equivalent to the "veneration" which was the crucial test of heresy, and when he chanced to learn that his new acquaintances were heretics he felt himself lost. Hastening to Rome, he laid the matter before Gregory IX., who exacted bail of him and sent a commission to the Bishop of Florence to investigate the antecedents of Accursio. The report was examined by the cardinals of Ostia and Preneste and found to be emphatic in commending his orthodoxy, so he escaped with a penance prescribed by Raymond of Pennaforte, the papal penitentiary, and Gregory wrote to the inquisitors of Paris not to molest him. Under such a system the most devout Catholic could never feel safe for a moment.[387]

Yet in spite of all these efforts to define the indefinable, it was in the very nature of things that absolute cert.i.tude could not, in a vast range of cases, be reached except through confession. In order, therefore, to avert the misfortune of acquitting those who could not be brought to confess, it became necessary to invent a new crime--that known as "suspicion of heresy." This opened a wide field for the endless subtleties and refinements in which the jurists of the schools delighted, rendering their so-called science of law a worthy rival of scholastic theology. Suspicion thus was primarily divided into three grades, designated as light, vehement, and violent, and the glossators revel in defining the amount and quality of evidence which renders the accused guilty of either of these, with the usual result that practically the matter was left to the discretion of the tribunal. That a man against whom nothing substantial was proved should be punished merely because he was suspected of guilt may seem to modern eyes a scant measure of justice; but to the inquisitor it appeared a wrong to G.o.d and man that any one should escape against whose orthodoxy there rested a shadow of a doubt. Like much else taught by the Inquisition, this found its way into general criminal law, which it perverted for centuries.[388]

Two witnesses were usually a.s.sumed to be necessary for the condemnation of a man of good repute, though some authorities demanded more. Yet when a case threatened to fail for lack of testimony, the discretion of the inquisitor was the ultimate arbitrator; and it was agreed that if two witnesses to the same fact could not be had, single witnesses to two separate facts of the same general character would suffice. When there was only one witness in all, the accused was still put on his purgation.

With the same determination to remove all obstacles in the way of conviction, if a witness revoked his testimony it was held that if his evidence had been favorable to the accused, the revocation annulled it; if adverse, the revocation was null.[389]

The same disposition to construe everything in favor of the faith governed the admissibility of witnesses of evil character. The Roman law rejected the evidence of accomplices, and the Church had adopted the rule. In the False Decretals it had ordered that no one should be admitted as an accuser who was a heretic or suspected of heresy, was excommunicate, a homicide, a thief, a sorcerer, a diviner, a ravisher, an adulterer, a bearer of false witness, or a consulter of diviners and soothsayers. Yet when it came to prosecuting heresy all these prohibitions were thrown to the winds. As early as the time of Gratian, infamous and heretical witnesses were receivable against heretics. The edicts of Frederic II. rendered heretics incapable of giving testimony, but this disability was removed when they testified against heretics.

That there was some hesitation on this point we see in the Legatine Inquisition held in Toulouse in 1229, where it is recorded that Guillem Solier, a converted heretic, was restored in fame in order to enable him to bear witness against his former a.s.sociates, and even as late as 1260 Alexander IV. was obliged to rea.s.sure the French inquisitors that they could safely use the evidence of heretics; but the principle became a settled one, adopted in the canon law, and constantly enforced in practice. Without it, in fact, the Inquisition would have been deprived of its most fruitful means of tracking heretics. It was the same with excommunicates, perjurers, infamous persons, usurers, harlots, and all those who, in the ordinary criminal jurisprudence of the age, were regarded as incapable of bearing witness, yet whose evidence was receivable against heretics. All legal exceptions were declared inoperative except that of mortal enmity.[390]

In the ordinary criminal law of Italy no evidence was received from a witness under twenty, but in cases of heresy such testimony was taken, and, though not legal, it sufficed to justify torture. In France the distinction seems to have been less rigidly defined, and the matter probably was left, like so much else, to the discretion of the inquisitors. As the Council of Albi specifies seven years as the period at which all children were ordered to be made to attend church and learn the Creed, Paternoster, and Salutation to the Virgin, it may be safely a.s.sumed that below that age they would hardly be admitted to give testimony. In the records of the Inquisition the age of the witness is rarely stated, but I have met with one case, in 1244, after the capture of the pestilent nest of heretics at Montsegur, where the Inquisition gathered so goodly a harvest, when the age of a witness, Arnaud Olivier, happens to be mentioned as ten years. He admitted having been a Catharan "believer" since he had reached the age of discretion, and thus was responsible for himself and others. His evidence is gravely recorded against his father, his sister, and nearly seventy others; and in it he is made to give the names of sixty-six persons who were present about a year before at the sermon of a Catharan bishop. The wonderful exercise of so young a memory does not seem to have excited any doubts as to the validity of his testimony, which must have been held conclusive against the unfortunates enumerated, as he stated that they all "venerated"

their prelate.[391]

Wives and children and servants were not admitted to give evidence in favor of the accused, but their testimony if adverse to him was welcomed, and was considered peculiarly strong. It was the same with the heretic, who, as we have seen, was freely admitted as an adverse witness, but who was rejected if appearing for the defence. In short, the only exception which could be taken to an accusing witness was malignity. If he was a mortal enemy of the prisoner it was presumed that his testimony was rather the prompting of hate than zeal for the faith, and it was required to be thrown out. In the case of the dead, the evidence of a priest that he had shriven the defunct and administered the _viatic.u.m_ went for nothing; but if he testified that the departed had confessed to being a heretic, had recanted, and had received absolution, then his bones were not exhumed and burned, but the heirs had to endure such penance of fine or confiscation as would have been inflicted on him if alive.[392]

Of course no witness could refuse to give evidence. No privilege or vow or oath released him from the duty. If he was unwilling and paltered or prevaricated and equivocated, there was the gentle persuasion of the torture-chamber, which, as we have seen, was even more freely used on witnesses than on princ.i.p.als. It was the ready instrument by which any doubts as to the testimony could be cleared up; and it is fair to attribute to the sanction of this terrible abuse by the Inquisition the currency which it so long enjoyed in European criminal law. Even the secrecy of the confessional was not respected in the frenzied effort to obtain all possible information against heretics. All priests were enjoined to make strict inquiries of their penitents as to their knowledge of heretics and fautors of heresy. The seal of sacramental confession could not be openly and habitually violated, but the result was reached by indirection. When the confessor succeeded in learning anything he was told to write it down and then endeavor to induce his penitent to reveal it to the proper authorities. Failing in this, he was, without mentioning names, to consult G.o.d-fearing experts as to what he ought to do--with what effect can readily be conjectured, since the very fact of consulting as to his duty shows that the obligation of secrecy was not to be deemed absolute.[393]

After this glimpse at the inquisitorial system of evidence, we hardly need the a.s.surance of the legists that less was required for conviction in heresy than in any other crime, and inquisitors were instructed that slender testimony was sufficient to prove it--"_probatur quis hreticus ex levi causa_." Yet evil as was all this, the crowning infamy of the Inquisition in its treatment of testimony was withholding from the accused all knowledge of the names of the witnesses against him. In the ordinary courts, even in the inquisitorial process, their names were communicated to him along with the evidence which they had given, and it will be remembered that when the Legate Romano held his inquest at Toulouse, in 1229, the accused followed him to Montpellier with demands to see the names of those who had testified against them, when the cardinal recognized their right to this, but eluded it by showing merely a long list of all the witnesses who had appeared during the whole inquest, giving as an excuse the danger to which they were exposed from the malevolence of those who had suffered by their evidence. That there was some risk incurred by those who destroyed their neighbors is true; the inquisitors and chroniclers mention that a.s.sa.s.sinations from this cause sometimes occurred--six being reported in Toulouse between 1301 and 1310. It would have been strange had this not been the case, nor was the chance of such wild justice altogether an unwholesome check upon the security of malevolence. Yet that so flimsy an excuse should have been systematically put forward shows merely that the Church recognized and was ashamed of its plain denial of justice, since no such precaution was deemed necessary in other criminal affairs.

Already in 1244 and 1246 the councils of Narbonne and Beziers order the inquisitors not to indicate in any manner the names of the witnesses, alleging as a reason the "prudent wish" of the Holy See, although in the instructions of the Cardinal of Albano the saving clause of risk is expressed. When Innocent IV. and his successors regulated the inquisitorial procedure, the same limitation to cases in which divulging the names would expose the witnesses to danger was sometimes omitted and sometimes repeated, and when Boniface VIII. embodied in the canon law the rule of withholding the names he expressly cautioned bishops and inquisitors to act with pure intentions, not to withhold the names when there was no peril in communicating them, and if the peril ceased they were to be revealed. Yet it is impossible to regard all this as more than a decent veil of hypocrisy to cover recognized injustice, for it was a flagrant fact that inquisitors everywhere treated these exhortations as the councils of Narbonne and Beziers had treated the limitations prescribed by the Cardinal of Albano. Although in the inquisitorial manuals the limitation of risk is usually mentioned, the instructions with regard to the conduct of the trials always a.s.sume as a matter of course that the prisoner is kept in ignorance of the names of the witnesses against him. As early as the time of Gui Foucoix that jurist treats it as the universal practice; a nearly contemporary MS.

manual lays it down as an invariable rule; and in the later periods we are coolly informed by both Eymerich and Bernardo di Como that cases were rare in which risk did not exist; that it was great when the accused was rich and powerful, but greater still when he was poor and had friends who had nothing to lose. Eymerich evidently considers it much more decent to refuse the names than to adopt the expedients of some over-conscientious inquisitors who furnished, like Cardinal Romano, the names written on a different piece of paper and so arranged that their identification with their evidence was impossible, or who mixed up other names with those of the witnesses so as to confuse hopelessly the defence. Occasionally a less disreputable but almost equally confusing plan was adopted, in swearing a portion of the witnesses in the presence of the accused, while examining them in his absence. Thus in the trial of Bernard Delicieux, in 1319, out of forty-eight witnesses whose depositions are recorded, sixteen were sworn in his presence; in that of Huss, in 1414, it is mentioned that fifteen witnesses at one time were taken to his cell that he might see them sworn.[394]

From this withholding of names it was but a step to withholding the evidence altogether, and that step was sometimes taken. In truth the whole process was so completely at the arbitrary discretion of the inquisitor, and the accused was so wholly without rights, that whatever seemed good in the eyes of the former was allowable in the interest of the faith. Thus we are told that if a witness retracted his evidence, the fact should not be made known to the defendant lest it should encourage him in his defence, but the judge is recommended to bear it in mind when rendering judgment. The tender care for the safety of witnesses even went so far that it was left to the conscience of the inquisitor whether or not to give the accused a copy of the evidence itself if there appeared to be danger to be apprehended from doing so.

Relieved from all supervision, and practically not subject to appeals, it may be said that there were no rules which the inquisitor might not suspend or abrogate at pleasure when the exigencies of the faith seemed to require it.[395]

Among the many evils springing from this concealment, which released witnesses and accusers from all responsibility, not the least was the stimulus which it afforded to delation and the temptation created to gratify malice by reckless perjury. Even without any special desire to do mischief, an unfortunate, whose resolution had been broken down by suffering and torture, when brought at last to confess, might readily be led to make his story as satisfactory as possible to his tormentors by mentioning all names that might occur to him as being present at conventicles and heretications. There can be no question that the business of the Inquisition was greatly increased by the protection which it thus afforded to informers and enemies, and that it was made the instrument of an immense amount of false-witness. The inquisitors felt this danger and frequently took such precautions as they could without trouble, by warning a witness of the penalties incurred by perjury, making him obligate himself in advance to endure them, and rigidly questioning him as to whether he had been suborned.

Occasionally, also, we find a conscientious judge like Bernard Gui carefully sifting evidence, comparing the testimony of different witnesses, and tracing out incompatibilities which proved that one at least was false. He accomplished this twice, once in 1312 and again in 1316, the earlier case presenting some peculiar features. A man named Pons Arnaud came forward spontaneously and accused his son Pierre of having endeavored to have him hereticated when laboring under apparently mortal sickness. The son denied it. Bernard, on investigation, found that Pons had not been sick at the date specified, and that there had been no heretics at the place named. Armed with this information he speedily forced the accuser to confess that he had fabricated the story to injure his son. Creditable as is this case to the inquisitor, it is hideously suggestive of the pitfalls which lay around the feet of every man; and no less so is an instance in which Henri de Chamay, Inquisitor of Carca.s.sonne, in 1329, resolutely traced out a conspiracy to ruin an innocent man, and had the satisfaction of forcing five false-witnesses to confess their guilt. Rare instances such as these, however, offered but a feeble palliation for the inherent vices of the system, and in spite of the severe punishment meted out to those who were discovered, the crime was of very frequent occurrence. The security with which it could be committed renders it safe to a.s.sume that detection occurred in a very small proportion of the cases; so when among the scanty doc.u.ments that have reached us we see six false-witnesses (of whom two were priests and one a clerk), sentenced at an _auto de fe_ held at Pamiers in 1323; four at Narbonne in December, 1328; one, a few weeks after, at Pamiers; four more at Pamiers in January, 1329, and seven (one of whom was a notary) at Carca.s.sonne in September, 1329, we may conclude that if the full records of the Inquisition were accessible, the list would be a frightful one, and would suggest an incalculable amount of injustice which remained undiscovered. We do not need the admission of Eymerich that witnesses are found frequently to conspire together to ruin an innocent man, and we may well doubt his a.s.surance that persistent scrutiny by the inquisitor will detect the wrong. There is, perhaps, only a consistent exhibition of inquisitorial logic in the dictum of Zanghino, that a witness who withdraws testimony adverse to a prisoner is to be punished for false-witness, while his testimony is to stand, and to receive full weight in rendering judgment.[396]

A false-witness, when detected, was treated with as little mercy as a heretic. As a symbol of his crime two pieces of red cloth in the shape of tongues were affixed to his breast and two to his back, to be worn through life. He was exhibited at the church-doors on a scaffolding during divine service on Sundays, and was usually imprisoned for life.

The symbol was changed to that of a letter in the case of Guillem Maurs, condemned in 1322 for conspiring with others to forge letters of the Inquisition whereby some parties were to be cited for heresy with the view of extorting hush-money from them. As the degree of criminality varied, so there were differences in the severity of punishment. Those condemned in Pamiers in 1323 were let off without incarceration. The four at Narbonne, in 1328, were regarded as peculiarly culpable, having been suborned by enemies of the accused, and they were accordingly condemned to the severest form of imprisonment, on bread and water, with chains on hands and feet. The a.s.sembly of experts held at Pamiers for the _auto_ of January, 1329, decided that, in addition to imprisonment, either lenient or harsh, according to the gravity of the offence, the offenders should make good any damage accruing to the accused. This was an approach to the _talio_, and the principle was fully carried out in 1518 by Leo X. in a rescript to the Spanish Inquisition, authorizing the abandonment to the secular arm of false witnesses who had succeeded in inflicting any notable injury on their victims. The expressions used by the pope justify the conclusion that the crime was still frequent.

Zanghino tells us that in his time there was no defined legal penalty, and that the false witness was to be punished at the discretion of the inquisitor--another instance of the tendency which pervades the whole inquisitorial jurisprudence, to fetter the tribunals with as few rules as possible, to clothe them with arbitrary power, and trust to G.o.d, in whose name and for whose glory they professed to act, to inspire them with the wisdom necessary for the discharge of their irresponsible trust.[397]

CHAPTER XI.

THE DEFENCE.

From the preceding sketch of the inquisitorial process it may readily be inferred that scant opportunities for defence were allowed by the Holy Office. It was in the very nature of the process that all the preliminary proceedings were taken in secrecy and without the knowledge of the accused. The case against him was made up before his arrest, and he was examined, urged to confess, and perhaps imprisoned for years and tortured, before he was allowed to know what were the charges against him. It was only after a confession had been extorted from him, or the inquisitor despaired of extorting one, that he was furnished with the evidence against him, and even then the names of the witnesses were habitually suppressed. All this is in cruel contrast with the righteous care to avoid injustice prescribed for the ordinary episcopal courts. In them the Council of Lateran orders that the accused shall be present at the inquisition against him, unless he contumaciously absents himself; the charges are to be explained to him, that he may have the opportunity of defending himself; the witnesses' names, with their respective evidence, are to be made public, and all legitimate exceptions and answers be admitted, for suppression of names would invite slander, and rejection of exceptions would admit false testimony.[398] The suspected heretic, however, was prejudged. The effort of the inquisitor was not to avoid injustice, but to force him to admit his guilt and seek reconciliation with the Church. To accomplish this effectually the facilities for defence were systematically reduced to a minimum.

It is true that, in 1246, the Council of Beziers lays down the rule that the accused shall have proper opportunities for defence, including necessary delays and the admission of exceptions and legitimate replies; but if this were intended as a check on the arbitrary operations which already characterized the Inquisition, it was wholly disregarded. In the first place, the secrecy of the tribunal enabled the judge to do as he might think best. In the second place, the only possible remaining check to arbitrary action was removed by denying to the accused the advantage of counsel. Then, as now, the intricacy of legal forms rendered the trained advocate a necessity to every man on trial; the layman, ignorant of his rights, and of the method of enforcing them, was utterly helpless. So thoroughly was this understood that in the ecclesiastical courts it was frequently a custom to furnish advocates gratuitously to poor men unable to employ them, and in the charter granted by Simon de Montfort, in 1212, to his newly-acquired territories, it was provided that justice should always be gratuitous, and that counsel should be provided by the court for pleaders too poor to retain them. When this right thus was recognized in the most trifling cases, to refuse it to those who were battling for their lives before a tribunal in which the judge was also prosecutor, was more than the Church at first dared openly to do, but it practically reached the result by indirection.

Innocent III., in a decretal embodied in the canon law, had ordered advocates and scriveners to lend no aid or counsel to heretics and their defenders, or to undertake their causes in litigation. This, which was presumably intended as one of the disabilities inflicted on defiant and acknowledged heretics, was readily applied to the suspect who were not yet convicted, and who were struggling to prove their innocence, for their guilt was always a.s.sumed in advance. The councils of Valence and Albi, in 1248 and 1254, while ordering inquisitors not to embarra.s.s themselves with the vain jangling of lawyers in the conduct of the prosecution, significantly make reference to this provision of the canon law as applicable to counsel who might be so hardy as to aid the defence. That this became a settled and recognized principle is shown by Bernard Gui's a.s.sertion that advocates who excuse and defend heretics are to be held guilty of fautorship of heresy--a crime which became heresy itself if satisfaction at the discretion of the inquisitor was not rendered within a twelvemonth. When to this we add the perpetually reiterated commands to the inquisitors to proceed without regard to legal forms or the wrangling of advocates, and the notice to notaries that he who drew up the revocation of a confession was excommunicated as an impeder of the Inquisition, it will readily be seen that there was no need of formally refusing counsel to the accused, and that there was no practical benefit permitted from the admission of the barren generality that one who believed a heretic to be innocent and endeavored to prove him so was not on that account liable to punishment. Eymerich is careful to specify that the accused has the right to employ counsel, and that a denial of this justifies an appeal, but then he likewise states that the inquisitor can prosecute any advocate or notary who undertakes the cause of heretics; and a century earlier a ma.n.u.script manual for inquisitors directs them to prosecute as defenders of heresy any advocates who take such cases, with the addition that if they are clerks they are to be perpetually deprived of their benefices. It is no wonder, therefore, that finally inquisitors adopted the rule that advocates were not to be allowed in inquisitorial trials. This injustice had its compensation, however, for the employment of counsel, in fact, was likely to prove as dangerous to the defendant as to his advocate, for the Inquisition was ent.i.tled to all accessible information, and could summon the latter as a witness, force him to surrender any papers in his hands, and reveal what had pa.s.sed between him and his client. Such considerations, however, are rather theoretical than practical, for it may well be doubted whether, in the ordinary course of the Inquisition, counsel for the defence ever appeared before it. The terror that it inspired is well ill.u.s.trated by the circ.u.mstance that when, in 1300, Friar Bernard Delicieux was commissioned by his Franciscan provincial to defend the memory of Castel Fabri, and Nicholas d'Abbeville, the Inquisitor of Carca.s.sonne, rudely refused him even an audience, he could find no notary in the city who dared to a.s.sist him in drawing up a legal protest; every one feared arrest and prosecution if he took the least part in an opposition to the dreaded inquisitor, and Bernard had to wait ten or twelve days until he could bring a notary from a distance to perform the simplest formality.

The local officials might well hesitate to incur the wrath of Nicholas, for a few years before he had cast in jail a notary who had ventured to draw up an appeal of the inhabitants of Carca.s.sonne to the king.[399]

All this is interesting as an ill.u.s.tration 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 G.o.d 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 ent.i.tled. 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 a.s.sumed in the absence of counsel and of all practical opportunities for defence can perhaps best be ill.u.s.trated by one or two cases. Thus in the Inquisition of Carca.s.sonne, 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 a.s.signing January 29 for the rendering of sentence. Two years later, in 1254, at Carca.s.sonne, 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 Carca.s.sonne, 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 Carca.s.sonne, orders the priests of all the churches in the dioceses of Carca.s.sonne, 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 Carca.s.sonne, 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 a.s.surance of Bernardo di Como that it was virtually unknown. Ignorance was no defence, and its mere a.s.sertion, 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 Delicieux, 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 n.o.bles 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 a.s.sessors 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 "_pet.i.te n.o.blesse_" who filled the prisons of the Inquisition and figured in its _autos de fe_. 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 cla.s.s 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 a.s.signed 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 Carca.s.sonne 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 Carca.s.sonne 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 Alizas 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 a.s.sumed. 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 p.r.o.nounce 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 a.s.sertions, 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 d.a.m.nation, 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 a.s.sumes 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]

The erection of suspicion into a crime gave ample opportunity for the habitual avoidance of acquittal. This took its origin in the customs of the barbarian and mediaeval codes, which required the accused, against whom a probable case was made out, to demonstrate his innocence either by the ordeal, or by the form of purgation known in England as the Wager of Law, in which he produced a prescribed number of his friends to share with him the oath of denial. In the coronation-edict of Frederic II.

those who were suspected of heresy were required to purge themselves in this manner, as the Church might demand, under pain of being outlawed, and, if they remained so for a year, of being condemned as heretics.

This gave a peculiar and sinister significance to suspicion of heresy which was carefully elaborated and turned to account. Suspicion might arise from many causes, the chief of which was popular rumor and belief.

Omission to take the oath abjuring heresy imposed on all the inhabitants of Languedoc, within the term prescribed, was sufficient, or neglect to reveal heretics, or the possession of heretical books. The intricate questions to which this extension of criminality gave rise are fairly ill.u.s.trated in the discussion of an inquisitor whether those who listened to the instructions of the Waldenses, "Do not lie, nor swear, nor commit fornication, but give to every man his due; go to church, pay your t.i.thes, and the perquisites of the priests," and, knowing this to be good advice, conclude the utterers to be good men--whether such are to be considered suspect of heresy; and he tells us that after diligent consideration he must decide in the affirmative, and order them to purgation. The difficulty of reducing to practice these intangible speculations was realized by Chancellor Gerson, who admits that due allowance should be made for variations of habits and manners in different places and times, but the ordinary inquisitor was troubled with few such scruples. It was easier to treat the suspect as criminals; to cla.s.sify suspicion into its three grades of light, vehement, and violent; to prescribe punishment for it, and to inflict the disabilities of heresy on the suspect and their descendants. Even the definition of the three grades of suspicion was abandoned as impossible, and it was left to the arbitrary discretion of the inquisitor to cla.s.sify each individual case which came before him. Nothing more condemnatory of the whole system can well be imagined than the explanation of Eymerich that suspects are not heretics; that they are not to be condemned for heresy, and that therefore their punishment should be lighter, except in the case of violent suspicion. Against this there was no defence possible, and no evidence to be admitted. The culprit might not be a heretic or entertain any error of belief, but if he would not abjure and give satisfaction (and abjuration included confession), he was to be handed over to the secular arm; if he confessed and sought reconciliation, he was to be imprisoned for life.[410]

For light and vehement suspicion the accused was ordered to furnish conjurators in his oath of denial. These were to be men of his own rank in life, who knew him personally and who swore to their belief in his orthodoxy and in the truth of his exculpatory oath. Their number varied, at the discretion of the inquisitor, with the degree of suspicion to be purged away, from three to twenty or thirty, and even more. In the case of strangers, however, who had no acquaintances, the inquisitor was advised to be moderate. It was no mere idle ceremony, and, as usual, all the chances were thrown against the defendant. If he was unable to procure the required number of compurgators, or neglected to do so within a year, the law of Frederic II. was enforced, and he was usually condemned as a heretic to burning alive; although some inquisitors argued that this was only presumptive, not absolute, proof, and that he could escape the stake by confessing and abjuring--of course being subject to the penance of perpetual prison. If he succeeded and performed his purgation duly, he was by no means acquitted. If the suspicion against him was vehement he could still be punished; even if it was light the fact that he had been suspected was an ineradicable blot. With the curious logical inconsequence characteristic of inquisitorial procedure, in addition to the purgation, he was obliged to abjure the heresy of which he had cleared himself; this abjuration remained of record against him, and in case of a second accusation his escape from the previous one was not reckoned as having proved his innocence, but as an evidence of guilt. If the purgation had been for light suspicion, his punishment now was increased; and if it had been for vehement suspicion, he was now regarded as a relapsed, to whom no mercy could be shown, but who was handed over to the secular arm without a hearing. Practically, however, this injustice is important chiefly as a manifestation of the spirit of the Inquisition; its methods were too thorough to render frequent a recourse to purgation, and Zanghino, when he treats of it, feels obliged to explain it as a custom little known.

One case, however, at least, is on record at Angermunde, where the inquisitor Friar Jordan, in 1336, tried by this method a number of persons accused of the mysterious Luciferan heresy, when fourteen men and women who were unable to procure the requisite number of compurgators were duly burned.[411]

An indispensable formality in all cases in which the culprit was admitted to reconciliation with the Church was abjuration of heresy. Of this there were various forms adapted to the different occasions of its use--whether for suspicion, light, vehement, or violent, or after confession and repentance. It was performed in public, at the _autos de fe_, except in rare cases, such as those of ecclesiastics likely to cause scandal, and it frequently embodied a pecuniary penalty for infraction of its promises, and security for their performance. The princ.i.p.al point to be observed in all was to see that the penitent abjured heresy in general as well as the special heresy with which he had been charged. If this were duly attended to, he could always be handed over to the secular arm without a hearing in case of relapse, except when the abjuration had been for light suspicion. If it were neglected, and he had, for instance, abjured Catharism only, he might subsequently indulge in some other form of heresy, such as Waldensianism or usury, and have the benefit of another chance. The case was one not likely to occur, but the point is interesting as showing how the Inquisition could manifest the most scrupulous attention to form, while discarding in its practice all that ent.i.tles the administration of justice to respect. The importance attached to the abjuration is ill.u.s.trated by a case in the Inquisition of Toulouse in 1310. Sibylla, wife of Bernard Borell, had been forced to confession and abjuration in 1305. Continuing her heretical practices, she was arrested in 1309 and again obliged to confess. As a relapsed heretic she was doomed irrevocably to the stake, but, luckily for her, the abjuration could not be found among the papers of the Holy Office, and though the rest of the record seems to have been accessible, she could only be prosecuted as though for a first offence, and she escaped with imprisonment for life.[412]

In the case of suspects of heresy who cleared themselves by compurgation, abjuration, of course, did not include confession. In accusations of heresy, supported by evidence, however, no one could be admitted to abjuration who did not confess that of which he was accused.

Denial, as we have seen, was obduracy, punished by the stake, and confession was a condition precedent to admission to abjuration. In ordinary cases, where torture was freely used, confession was almost a matter of course. There were extraordinary cases, however, like that of Huss at Constance, where torture was spared and where the accused denied the doctrines attributed to him. In such cases the necessity of confession prior to abjuration must be borne in mind if we are to understand the inevitable consequences.

CHAPTER XII.

THE SENTENCE.

The penal functions of the Inquisition were based upon a fiction which must be comprehended in order rightly to appreciate much of its action.

Theoretically it had no power to inflict punishment. Its mission was to save men's souls; to recall them to the way of salvation, and to a.s.sign salutary penance to those who sought it, like a father-confessor with his penitents. Its sentences, therefore, were not, like those of an earthly judge, the retaliation of society on the wrong-doer, or deterrent examples to prevent the spread of crime; they were simply imposed for the benefit of the erring soul, to wash away its sin. The inquisitors themselves habitually speak of their ministrations in this sense. When they condemned a poor wretch to lifelong imprisonment, the formula in use, after the procedure of the Holy Office had become systematized, was a simple injunction on him to betake himself to the jail and confine himself there, performing penance on bread and water, with a warning that he was not to leave it under pain of excommunication, and of being regarded as a perjured and impenitent heretic. If he broke jail and escaped, the requisition for his recapture under a foreign jurisdiction describes him, with a singular lack of humor, as one insanely led to reject the salutary medicine offered for his cure, and to spurn the wine and oil which were soothing his wounds.[413]

Technically, therefore, the list of penalties available to the inquisitor was limited. He never condemned to death, but merely withdrew the protection of the Church from the hardened and impenitent sinner who afforded no hope of conversion, or from him who showed by relapse that there was no trust to be placed in his pretended repentance. Except in Italy, he never confiscated the heretic's property; he merely declared the existence of a crime which, under the secular law, rendered the culprit incapable of possession. At most he could impose a fine, as a penance, to be expended in good works. His tribunal was a spiritual one, and dealt only with the sins and remedies of the spirit, under the inspiration of the Gospels, which always lay open before it. Such, at least, was the theory of the Church, and this must be borne in mind if we would understand what may occasionally seem to be inconsistencies and incongruities--especially in view of the arbitrary discretion which left to the individual inquisitor such opportunity to display his personal characteristics in dealing with the penitents before him. He was a judge in the forum of conscience, bound by no statutes and limited by no rules, with his penitents at his mercy, and no power save that of the Holy See itself could alter one jot of his decrees.[414]

This sometimes led to a lenity which would be otherwise inexplicable, as in the case of the murderers of St. Peter Martyr. Pietro Balsamo, known as Carino, one of the hired a.s.sa.s.sins, was caught red-handed, and his escape by bribery from prison created a popular excitement leading to a revolution in Milan. Yet, when recaptured, he repented, was forgiven, and allowed to enter the Dominican Order, in which he peacefully died, with the repute of a "_beato;_" and though the Church never formally recognized his right to the public worship paid to him in some places, still, in one of the stalls of the martyr's own great church of Sant'

Eustorgio, he appears, with the t.i.tle of the blessed Acerinus, in a chiaroscuro of 1505, among the Dominican saints. Not one, indeed, of those concerned in the a.s.sa.s.sination appears to have been put to death, and the leading instigator of the crime, Stefano Confaloniere of Aliate, a notorious heretic and fautor of heretics, after repeated abjurations, releases, and relapses, was not fairly imprisoned until 1295, forty-three years after the murder. It was the same when, soon afterwards, the Franciscan inquisitor, Pier da Bracciano, was a.s.sa.s.sinated, and Manfredo di Sesto, who had hired the a.s.sa.s.sins, was brought before Rainerio Saccone, the Inquisitor of Milan. He confessed the crime and other offences in aid of heresy, but was only ordered to present himself to the pope and receive penance. Contumaciously neglecting to do this, Innocent IV. merely ordered the magistrates of Italy to arrest and detain him if he should be found.[415]