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]
The ordinary course of a trial by the Inquisition was this. A man would be reported to the inquisitor as of ill-repute for heresy, or his name would occur in the confessions of other prisoners. A secret inquisition would be made and all accessible evidence against him would be collected. He would then be secretly cited to appear at a given time, and bail taken to secure his obedience, or if he were suspected of flight, he would be suddenly arrested and confined until the tribunal was ready to give him a hearing. Legally there required to be three citations, but this was eluded by making the summons "one for three;" when the prosecution was based on common report the witnesses were called apparently at random, making a sort of drag-net, and when the mass of surmises and gossip, exaggerated and distorted by the natural fear of the witnesses, eager to save themselves from suspicion of favoring heretics, grew sufficient for action, the blow would fall. The accused was thus prejudged. He was assumed to be guilty, or he would not have been put on trial, and virtually his only mode of escape was by confessing the charges made against him, abjuring heresy, and accepting whatever punishment might be imposed on him in the shape of penance. Persistent denial of guilt and assertion of orthodoxy, when there was evidence against him, rendered him an impenitent, obstinate heretic, to be abandoned to the secular arm and consigned to the stake. The process thus was an exceedingly simple one, and is aptly summarized by an inquisitor of the fifteenth century in an argument against admitting the accused to bail. If one is caught in heresy, by his own confession, and is impenitent, he is to be delivered to the secular arm to be put to death; if penitent, he is to be thrust in prison for life, and therefore is not to be let loose on bail; if he denies, and is legitimately convicted by witnesses, he is, as an impenitent, to be delivered to the secular court to be executed.[366]
Yet many reasons led the inquisitor earnestly to desire to secure confession. In numerous cases--indeed, no doubt in a majority--the evidence, while possibly justifying suspicion, was of too loose and undefined a character to justify condemnation, for every idle rumor was taken up, and any flimsy pretext which led to prosecution assumed importance when the inquisitor found himself bound to show that he had not acted unadvisedly, or when he had in prospect fines and confiscations for the benefit of the faith. Even when the evidence was sufficient, there were motives equally strong to induce the inquisitor to labor with his prisoner in the hope of leading him to withdraw his denial and throw himself upon the mercy of the tribunal. Except in the somewhat rare cases of defiant heretics, confession was always accompanied with professions of conversion and repentance. Not only thus was a soul snatched from Satan, but the new convert was bound to prove his sincerity by denouncing all whom he knew or might suspect to be heretic, thus opening fresh avenues for the extirpation of heresy.
Bernard Gui, copying an earlier inquisitor, tells us eloquently that when the external evidence was insufficient for conviction, the mind of the inquisitor was torn with anxious cares. On the one side, his conscience pained him if he punished one who was neither confessed nor convicted; but he suffered still more, knowing by constant experience the falsity and cunning and malice of these men, if he allowed them to escape through their vulpine astuteness, to the damage of the faith. In such case they were strengthened and multiplied, and rendered keener than ever, while the laity were scandalized at seeing the inefficiency of the Inquisition, baffled in its undertakings, and its most learned men played with and defied by rude and illiterate persons, for they believed the inquisitors to have all the proofs and arguments of the faith so ready at hand that no heretic could elude them or prevent their converting him. From this it is easy to see how the self-conceit of the inquisitor led him inevitably to conviction. In another passage he points out how greatly profitable to the faith was the conversion of such persons, because not only were they obliged to betray their fellows and the hiding-places and conventicles of darkness, but those whom they had influenced were more ready to acknowledge their errors and seek in turn to be converted. As early as 1246 the Council of Béziers had pointed out the utility of such conversions, and had instructed the inquisitors to spare no pains in procuring them, and all subsequent authorities evidently regarded this as the first of their duties. They all agree, moreover, in holding delation of accomplices as the indispensable evidence of true conversion. Without this the repentant heretic in vain might ask for reconciliation and mercy; his refusal to betray his friends and kindred was proof that he was unrepentant, and he was forthwith handed over to the secular arm, exactly as in the Roman law a converted Manichæan who consorted with Manichæans without denouncing them to the authorities was punishable with death. How useful this was is seen in the case of Saurine Rigaud, whose confession is recorded at Toulouse in 1254, where it is followed by a list of one hundred and sixty-nine persons incriminated by her, their names being carefully tabulated with their places of residence for immediate action. How strictly, moreover, the duty of the reconciled heretic was construed is seen in the fate of Guillem Sicrède at Toulouse in 1312. He had abjured and been reconciled in 1262. Fifty years afterwards, in 1311, he had been present at the death-bed of his brother, where heretication had been performed, and he had failed to betray it, though he had vainly objected to it. When asked for his reasons, he simply said that he had not wished to injure his nephews, and for this, in 1312, he was imprisoned for life. Delation was so indispensable to the Inquisition that it was to be secured by rewards as well as by punishments. Bernard Gui tells us that those who voluntarily come forward and prove their zeal by confession and by betraying all their associates are not only to be pardoned, but their livelihood must be secured at the hands of princes and prelates; while betraying a single "perfected" heretic insured immunity and perhaps additional reward.[367]
The inquisitor's anxiety to secure confession was well grounded, not only through the advantages thus secured, but to satisfy his own conscience. In ordinary crimes, a judge was usually certain that an offence had been committed before he undertook to prosecute a prisoner accused of murder or theft. In many cases, however, the inquisitor could have no assurance that there had been any crime. A man might be reasonably suspected, he might have been seen conversing with those subsequently proved to be heretics, he might have given them alms or other assistance, he might even have attended a meeting of heretics, and yet be thoroughly orthodox at heart; or he might be a bitter heretic and yet have given no outward sign. His own assertion of orthodoxy, his willingness to subscribe to the faith of Rome, went for nothing, for experience had proved that most heretics were willing to subscribe to anything, and that they had been trained by persecution to conceal their beliefs under the mask of rigid orthodoxy. Confession of heresy thus became a matter of vital importance, and no effort was deemed too great, no means too repulsive, to secure it. This became the centre of the inquisitorial process, and it is deserving of detailed consideration, not only because it formed the basis of procedure in the Holy Office, but also because of the vast and deplorable influence which it exercised for five centuries on the whole judicial system of Continental Europe.
The first and readiest means was, of course, the examination of the accused. For this the inquisitor prepared himself by collecting and studying all the adverse evidence that could be procured, while the prisoner was kept in sedulous ignorance of the charges against him. Skill in interrogation was the one pre-eminent requisite of the inquisitor, and manuals prepared by experienced brethren for the benefit of the younger officials are full of details with regard to it and of carefully prepared forms of interrogations suited for every heretical sect. Constant training developed a class of acute and subtle minds, practised to read the thoughts of the accused, skilled to lay pitfalls for the incautious, versed in every art to confuse, prompt to detect ambiguities, and quick to take advantage of hesitation or contradiction. Even in the infancy of the institution the consuls of Narbonne complained to those of Nimes that the inquisitors, in their efforts to entrap the unwary, did not hesitate to make use of dialectics as sophistical as those with which students encountered each other in scholastic diversion. Nothing more ludicrous can well be imagined than the complaints of these veteran examiners, restricted by no rules, of the shrewd duplicity of their victims, who struggled, occasionally with success, to avoid criminating themselves, and they sought to explain it by asserting that wicked and shameless priests instructed them how to equivocate on points of faith.[368]
An experienced inquisitor drew up for the guidance of his successors a specimen examination of a heretic, to show them the quibbles and tergiversations for which they must be prepared when dealing with those who shrank from boldly denying their faith. Its fidelity is attested by Bernard Gui reproducing it fifty years later in his "Practica," and it is too characteristic an illustration of the encounter between the trained intellect of the inquisitor and the untutored shrewdness of the peasant struggling to save his life and his conscience, to be omitted.
"When a heretic is first brought up for examination, he assumes a confident air, as though secure in his innocence. I ask him why he has been brought before me. He replies, smiling and courteous, 'Sir, I would be glad to learn the cause from you.'
"I. 'You are accused as a heretic, and that you believe and teach otherwise than Holy Church believes.'
"A. (Raising his eyes to heaven, with an air of the greatest faith) 'Lord, thou knowest that I am innocent of this, and that I never held any faith other than that of true Christianity.'
"I. 'You call your faith Christian, for you consider ours as false and heretical. But I ask whether you have ever believed as true another faith than that which the Roman Church holds to be true.
"A. 'I believe the true faith which the Roman Church believes, and which you openly preach to us.'
"I. 'Perhaps you have some of your sect at Rome whom you call the Roman Church. I, when I preach, say many things, some of which are common to us both, as that God liveth, and you believe some of what I preach. Nevertheless you may be a heretic in not believing other matters which are to be believed.'
"A. 'I believe all things that a Christian should believe.'
"I. 'I know your tricks. What the members of your sect believe you hold to be that which a Christian should believe. But we waste time in this fencing. Say simply, Do you believe in one God the Father, and the Son, and the Holy Ghost?'
"A. 'I believe.'
"I. 'Do you believe in Christ born of the Virgin, suffered, risen, and ascended to heaven?'
"A. (Briskly) 'I believe.'
"I. 'Do you believe the bread and wine in the mass performed by the priests to be changed into the body and blood of Christ by divine virtue?'
"A. 'Ought I not to believe this?'
"I. 'I don't ask if you ought to believe, but if you do believe.'
"A. 'I believe whatever you and other good doctors order me to believe.'
"I. 'Those good doctors are the masters of your sect; if I accord with them you believe with me; if not, not.'
"A. 'I willingly believe with you if you teach what is good to me.'
"I. 'You consider it good to you if I teach what your other masters teach. Say, then, do you believe the body of our Lord Jesus Christ to be in the altar?'
"A. (Promptly) 'I believe.'
"I. 'You know that a body is there, and that all bodies are of our Lord. I ask whether the body there is of the Lord who was born of the Virgin, hung on the cross, arose from the dead, ascended, etc.?'
"A. 'And you, sir, do you not believe it?'
"I. 'I believe it wholly.'
"A. 'I believe likewise.'
"I. 'You believe that I believe it, which is not what I ask, but whether you believe it.'
"A. 'If you wish to interpret all that I say otherwise than simply and plainly, then I don't know what to say. I am a simple and ignorant man. Pray don't catch me in my words.'
"I. 'If you are simple, answer simply, without evasions.'
"A. 'Willingly.'
"I. 'Will you then swear that you have never learned anything contrary to the faith which we hold to be true?'
"A. (Growing pale) 'If I ought to swear, I will willingly swear.'
"I. 'I don't ask whether you ought, but whether you will swear.'
"A. 'If you order me to swear, I will swear.'
"I. 'I don't force you to swear, because as you believe oaths to be unlawful, you will transfer the sin to me who forced you; but if you will swear, I will hear it.'
"A. 'Why should I swear if you do not order me to?'
"I. 'So that you may remove the suspicion of being a heretic.'
"A. 'Sir, I do not know how unless you teach me.'
"I. 'If I had to swear, I would raise my hand and spread my fingers and say, "So help me God, I have never learned heresy or believed what is contrary to the true faith."'
"Then trembling as if he cannot repeat the form, he will stumble along as though speaking for himself or for another, so that there is not an absolute form of oath and yet he may be thought to have sworn. If the words are there, they are so turned around that he does not swear and yet appears to have sworn. Or he converts the oath into a form of prayer, as 'God help me that I am not a heretic or the like;' and when asked whether he had sworn, he will say: 'Did you not hear me swear?' And when further hard pressed he will appeal, saying 'Sir, if I have done amiss in aught, I will willingly bear the penance, only help me to avoid the infamy of which I am accused through malice and without fault of mine.' But a vigorous inquisitor must not allow himself to be worked upon in this way, but proceed firmly till he makes these people confess their error, or at least publicly abjure heresy, so that if they are subsequently found to have sworn falsely, he can, without further hearing, abandon them to the secular arm. If one consents to swear that he is not a heretic, I say to him, 'If you wish to swear so as to escape the stake, one oath will not suffice for me, nor ten, nor a hundred, nor a thousand, because you dispense each other for a certain number of oaths taken under necessity, but I will require a countless number. Moreover, if I have, as I presume, adverse witnesses against you, your oaths will not save you from being burned. You will only stain your conscience without escaping death. But if you will simply confess your error, you may find mercy.' Under this anxiety, I have seen some confess."[369]
The same inquisitor illustrates the ease with which the cunning of these simple folk fenced and played with the best-trained men of the Holy Office by a case in which he saw a serving-wench elude the questions of picked examiners for several days together, and she would have escaped had there not by chance been found in her chest the fragment of a bone of a heretic recently burned, which she had preserved as a relic, according to one of her companions who had collected the bones with her. But the inquisitor does not tell us how many thousand good Catholics, confused by the awful game which they were playing, mystified with the intricacies of scholastic theology, ignorant how to answer the dangerous questions put to them so searchingly, and terrified with the threats of burning for persistent denial, despairingly confessed the crime of which they were so confidently assumed to be guilty, and ratified their conversion by inventing tales about their neighbors, while expiating the wrong by suffering confiscation and lifelong imprisonment.
Yet the inquisitor was frequently baffled in this intellectual digladiation by the innocence or astuteness of the accused. His resources, however, were by no means exhausted, and here we approach one of the darkest and most repulsive aspects of our theme. Human inconsistency, in its manifold development, has never exhibited itself in more deplorable fashion than in the instructions on this subject transmitted to their younger brethren by the veterans of the Holy Office--instructions intended for none but official eyes, and therefore framed with the utmost unreserve. Trained through long experience in an accurate knowledge of all that can move the human breast; skilled not only to detect the subtle evasions of the intellect, but to seek and find the tenderest point through which to assail the conscience and the heart; relentless in inflicting agony on body and brain, whether through the mouldering wretchedness of the hopeless dungeon protracted through uncounted years, the sharper pain of the torture-chamber, or by coldly playing on the affections; using without scruple the most violent alternatives of hope and fear; employing with cynical openness every resource of guile and fraud on wretches purposely starved to render them incapable of self-defence, the counsels which these men utter might well seem the promptings of fiends exulting in the unlimited power to wreak their evil passions on helpless mortals. Yet through all this there shines the evident conviction that they are doing the work of God. No labor is too great if they can win a soul from perdition; no toil too repulsive if they can bring a fellow-creature to an acknowledgment of his wrong-doing and a genuine repentance that will wipe out his sins; no patience too prolonged if it will avoid the unjust conviction of the innocent. All the cunning fence between judge and culprit, all the fraud, all the torture of body and mind so ruthlessly employed to extort unwilling confessions, were not necessarily used for the mere purpose of securing a victim, for the inquisitor was taught to be as earnest with the recalcitrants against whom he had sufficient testimony as with the cases in which evidence was deficient. With the former he was seeking to save a soul from immolating itself in the pride of obstinacy; with the latter he was laboring to preserve the sheep by not liberating an infected one to spread pestilence among the flock. It mattered little to the victim what were the motives actuating his persecutor, for conscientious cruelty is apt to be more cold-blooded and calculating, more relentless and effective, than passionate wrath, but the impartial student must needs recognize that while many inquisitors were doubtless dullards who followed unthinkingly a prescribed routine as a vocation, and others were covetous or sanguinary tyrants actuated only by self-interest or ambition, yet among them were not a few who believed themselves to be discharging a high and holy duty, whether they abandoned the impenitent to the flames, or by methods of unspeakable baseness rescued from Satan a soul which he had reckoned as his own. They were instructed that it was better to let the guilty escape than to condemn the innocent, and, therefore, that they must have either clear proofs or confession. In the absence of absolute evidence, therefore, the very conscientiousness of the judge, under such a system, led him to resort to any means to satisfy himself by wringing an acknowledgment from his victim.[370]
The resources for procuring unwilling confession, at command of the inquisitor, may be roughly divided into two classes--deceit and torture, the latter comprehending both mental and physical pain, however administered. Both classes were resorted to freely and without scruple, and there was ample variety to suit the idiosyncrasies of all judges and prisoners.
Perhaps the mildest form of the devices to entrap an unwary prisoner was the recommendation that the examiner should always assume the fact of which he was in quest and ask about the details, as, for instance, "How often have you confessed as a heretic?" "In what chamber of yours did they lie?" Going a step further, the inquisitor is advised during the examination to turn over the pages of evidence as though referring to it, and then boldly inform the prisoner that he is not telling the truth, for it is thus and thus; or to pick up a paper and pretend to read from it whatever is necessary to deceive him; or he can be told circumstantially that some of the masters of the sect have incriminated him in their revelations. To render these devices more effective, the jailer was instructed to worm himself into the confidence of the prisoners, with feigned interest and compassion, and urge them to confess at once, because the inquisitor is a merciful man who will take pity on them. Then the inquisitor was to pretend that he had conclusive evidence, and that if the accused would confess and point out those who had led him astray, he should be allowed to go home forthwith, with any other blandishments likely to prove effective. A more elaborate trap was that of treating the prisoner with kindness in place of rigor; sending trusty agents to his cell to gain his confidence, and then urge him to confess, with promises of mercy and that they would intercede for him. When everything was ripe, the inquisitor himself would appear and confirm these promises, with the mental reservation that all which is done for the conversion of heretics is merciful, that penances are mercies and spiritual remedies, so that when the unlucky wretch was prevailed upon to ask for mercy in return for his revelations, he was to be led on with the general expression that more would be done for him than he asked.[371]
That spies should play a prominent part in such a system was inevitable. The trusty agents who were admitted to the prisoner's cell were instructed to lead him graduallv on from one confession to another until they should gain sufficient evidence to incriminate him, without his realizing it. Converted heretics, we are told, were very useful in this business. One would be sent to visit him and say that he had only pretended conversion through fear, and after repeated visits overstay his time and be locked up. Confidential talk would follow in the darkness, while witnesses with a notary were crouching within earshot to take down all that might fall from the lips of the unconscious victim. Fellow-prisoners were utilized whenever possible, and were duly rewarded for treachery. In the sentence of a Carmelite monk, January 17, 1329, guilty of the most infamous sorceries, it is recorded in extenuation of his black catalogue of guilt, that while in prison with sundry heretics he had aided greatly in making them confess and had revealed many important matters which they had confided to him, from which the Inquisition had derived great advantage and hoped to gain more.[372]
These artifices were diversified with appeals to force. The heretic, whether acknowledged or suspected, had no rights. His body was at the mercy of the Church, and if through tribulation of the flesh he could be led to see the error of his ways, there was no hesitation in employing whatever means were readiest to save his soul and advance the faith. Among the miracles for which St. Francis was canonized it is related that a certain Pietro of Assisi was captured in Rome on an accusation of heresy, and confided for conversion to the Bishop of Todi, who loaded him with chains and fed him on measured quantities of bread and water in a dark dungeon. Thus brought through suffering to repentance, on the vigil of St. Francis he invoked the saint for help with passionate tears. Moved by his zeal, St. Francis appeared to him and ordered him forth. His chains fell off and the doors flew open, but the poor wretch was so crazed by the sudden answer to his prayer that he clung to the doorpost with cries which brought the jailers running to him. The pious bishop hastened to the prison, and reverently acknowledging the power of God, sent the shivered fetters to the pope in token of the miracle. Even more illustrative and better authenticated is a case related with much gratulation by Nider as occurring when he was teaching in the University of Vienna. A heretic priest, thrown into prison by his bishop, proved obstinate, and the most eminent theologians who labored for his conversion found him their match in disputation. Believing that vexation brings understanding, they at length ordered him to be bound tightly to a pillar. The cords eating into the swelling flesh caused such exquisite torture that when they visited him the next day he begged piteously to be taken out and burned. Coldly refusing, they left him for another twenty-four hours, by which time physical pain and exhaustion had broken his spirit. He humbly recanted, retired to a Paulite monastery, and lived an exemplary life.[373]
It will readily be believed that there was scant hesitation in employing any methods likely to crush the obduracy of the prisoner who refused the confession and recantation demanded of him. If he were likely to be reached through the affections, his wife and children were admitted to his cell in hopes that their tears and pleadings might work on his feelings and overcome his convictions. Alternate threats and blandishments were tried; he would be removed from his foul and dismal dungeon to commodious quarters, with liberal diet and a show of kindness, to see if his resolution would be weakened by alternations of hope and despair. Master of the art of playing upon the human heart, the trained inquisitor left no method untried which promised victory in the struggle between him and the helpless wretch abandoned to his experiments. Among these, one of the most efficient was the slow torture of delay. The prisoner who refused to confess, or whose confession was deemed imperfect, was remanded to his cell, and left to ponder in solitude and darkness. Except in rare cases time was no object with the Inquisition, and it could afford to wait. Perhaps in a few weeks his resolution might break down, and he might ask to be heard. If not, six months might elapse before he was again called up for hearing. If still obstinate he would be again sent back. Months would lengthen into years, perhaps years into decades, and find him still unconvicted and still a prisoner, hopeless and despairing. Should friendly death not intervene, the terrible patience of the Inquisition was nearly certain to triumph in the end, and the authorities all agree upon the effectiveness of delay. This explains what otherwise would be hard to understand--the immense protraction of so many of the inquisitorial trials whose records have reached us. Three, five, or ten years are common enough as intervals between the first audience of a prisoner and his final conviction, nor are instances wanting of even greater delays. Bernalde, wife of Guillem de Montaigu, was imprisoned at Toulouse in 1297, and made a confession the same year, yet she was not formally sentenced to imprisonment until the auto of 1310. I have already alluded to the case of Guillem Garric, brought to confess at Carcassonne in 1321 after a detention of nearly thirty years. In the auto de fé of 1319, at Toulouse, Guillem Salavert was sentenced, who had made an unsatisfactory confession in 1299 and another in 1316; to the latter he had unwaveringly adhered, and at last Bernard Gui, overcome by his obstinacy, let him off with the penance of wearing crosses, in consideration of his twenty years' imprisonment without conviction. At the same auto were sentenced six wretches who had recently died in prison, two of whom had made their first confession in 1305, one in 1306, two in 1311, and one in 1315. Nor was this hideous torture of suspense peculiar to any special tribunal. Guillem Salavert was one of those implicated in the troubles of Albi in 1299, when many of the accused were speedily tried and sentenced by the bishop, Bernard de Castenet, and Nicholas d'Abbeville, inquisitor of Carcassonne, but some were reserved for the harder fate of detention without trial. The intervention of the pope was sought, and in 1310 Clement V. wrote to the bishop and the inquisitor, giving the names of ten of them, including some of the most respectable citizens of Albi, who had lain for eight years or more in jail awaiting judgment, many of them in chains and all in narrow, dark cells. His order for their immediate trial was disobeyed, and in a subsequent letter he speaks of several of them having died before his previous epistle, and reiterated his command for the prompt disposal of the survivors. The Inquisition was a law unto itself, however, and again his mandate was disregarded. In 1319, besides Guillem Salavert, two others, Guillem Calverie and Isarn Colli, were brought from their dungeon and retracted their confessions which had been extorted from them by torture. Calverie figured with Salavert in the auto of Toulouse in the same year. When Colli was sentenced we do not know, but in the accounts of Arnaud Assalit, royal steward of confiscations, for 1322-3, there appears the property of "Isarnus Colli condemnatus," showing his ultimate fate. In the auto of 1319, moreover, occur the names of two citizens of Cordes, Durand Boissa and Bernard Ouvrier (then deceased), whose confessions date respectively from 1301 and 1300, doubtless belonging to the same unfortunate group, who had eaten their hearts in despair and misery for a score of years.[374]
When it was desired to hasten this slow torture, the object was easily accomplished by rendering the imprisonment unendurably harsh. As we shall see hereafter, the dungeons of the Inquisition at best were abodes of fearful misery, but when there was reason for increasing their terrors there was no difficulty in increasing the hardships. The "durus career et arcta vita"--chains and starvation in a stifling hole--was a favorite device for extracting confession from unwilling lips. We shall meet hereafter an atrocious instance of this inflicted on a witness, as early as 1263, when the ruin of the great house of Foix was sought. It was pointed out that judicious restriction of diet not only reduced the body but weakened the will, and rendered the prisoner less able to resist alternate threats of death and promises of mercy. Starvation, in fact, was reckoned as one of the regular and most efficient methods to subdue unwilling witnesses and defendants. In 1306 Clement V. declared, after an official investigation, that at Carcassonne prisoners were habitually constrained to confession by the harshness of the prison, the lack of beds, and the deficiency of food, as well as by torture.[375]
With all these resources at their command, it might seem superfluous for inquisitors to have recourse to the vulgar and ruder implements of the torture-chamber. The rack and strappado, in fact, were in such violent antagonism, not only with the principles of Christianity, but with the practices of the Church, that their use by the Inquisition, as a means of furthering the faith, is one of the saddest anomalies of that dismal period. I have elsewhere shown how consistently the Church opposed the use of torture, so that, in the barbarism of the twelfth century, Gratian lays it down as an accepted rule of the canon law that no confession is to be extorted by torment. Torture, moreover, except among the Wisigoths, had been unknown among the barbarians who founded the commonwealths of Europe, and their system of jurisprudence had grown up free from its contamination. It was not until the study of the revived Roman law, and the prohibition of ordeals by the Lateran Council of 1215, which was gradually enforced during the first half of the thirteenth century, that jurists began to feel the need of torture and accustom themselves to the idea of its introduction. The earliest instances with which I have met occur in the Veronese Code of 1228 and the Sicilian Constitutions of Frederic II. in 1231, and in both of these the references to it show how sparingly and hesitatingly it was employed. Even Frederic, in his ruthless edicts, from 1220 to 1239, makes no allusion to it, but, in accordance with the Verona decree of Lucius III., prescribes the recognized form of canonical purgation for the trial of all suspected heretics. Yet it rapidly won its way in Italy, and when Innocent IV., in 1252, published his bull Ad extirpanda, he adopted it, and authorized its use for the discovery of heresy. A decent respect for the old-time prejudices of the Church, however, forbade him to allow its administration by the inquisitors themselves or their servitors. It was the secular authorities who were ordered to force all captured heretics to confess and accuse their accomplices, by torture which should not imperil life or injure limb, "just as thieves and robbers are forced to confess their crimes and accuse their accomplices." The unrepealed canons of the Church, in fact, prohibited all ecclesiastics from being concerned in such acts, and even from being present where torture was administered, so that the inquisitor whose zeal should lead him to take part in it was thereby rendered "irregular" and unfit for sacred functions until he could be "dispensed" or purified. This did not suit the policy of the institution. Possibly outside of Italy, where torture was as yet virtually unknown, it found difficulty in securing the co-operation of the public officials; everywhere it complained that this cumbrous mode of administration interfered with the profound secrecy which was an essential characteristic of its operations. But four years after the bull of Innocent IV., Alexander IV., in 1256, removed the difficulty with characteristic indirection by authorizing inquisitors and their associates to absolve each other, and mutually grant dispensations for irregularities--a permission which was repeatedly reiterated, and which was held to remove all impediment to the use of torture under the direct supervision of the inquisitor and his ministers. In Naples, where the Inquisition was but slenderly organized, we find the public officials used by it as torturers until the end of the century, but elsewhere it speedily arrogated the administration of torment to its own officials. Even in Naples, however, Frà Tomaso d'Aversa is seen, in 1305, personalty inflicting the most brutal tortures on the Spiritual Franciscans; and when he found it impossible in this manner to make them convict themselves, he employed the ingenious expedient of starving for a few days one of the younger brethren, and then giving him strong wine to drink; when the poor wretch was fuddled there was no difficulty in getting him to admit that he and his twoscore comrades were all heretics.[376]
Torture saved the trouble and expense of prolonged imprisonment; it was a speedy and effective method of obtaining what revelations might be desired, and it grew rapidly in favor with the Inquisition, while its extension throughout secular jurisprudence was remarkably slow. In 1260 the charter granted by Alphonse of Poitiers to the town of Auzon specially exempts the accused from torture, no matter what the crime involved. This shows that its use was gradually spreading, and already, in 1291, Philippe le Bel felt himself called upon to restrain its abuses; in letters to the seneschal of Carcassonne he alludes to the newly-introduced methods of torture in the Inquisition, whereby the innocent were convicted and scandal and desolation pervaded the land. He could not interfere with the internal management of the Holy Office, but he sought a corrective in forbidding indiscriminate arrests at the sole bidding of the inquisitors. As might be expected, this was only a palliative; callous indifference to human suffering grows by habit, and the misuse of this terrible method of coercion continued to increase. When the despairing cry of the population induced Clement V. to order an investigation into the iniquities of the Inquisition of Carcassonne, the commission issued to the cardinals sent thither in 1306 recites that confessions were extorted by torture so severe that the unfortunates subjected to it had only the alternative of death; and in the proceedings before the commissioners the use of torture is so frequently alluded to as to leave no doubt of its habitual employment. It is a noteworthy fact, however, that in the fragmentary documents of inquisitorial proceedings which have reached us the references to torture are singularly few. Apparently it was felt that to record its use would in some sort invalidate the force of the testimony. Thus, in the cases of Isarn Colli and Guillem Calverie, mentioned above, it happens to be stated that they retracted their confessions made under torture, but in the confessions themselves there is nothing to indicate that it had been used. In the six hundred and thirty-six sentences borne upon the register of Toulouse from 1309 to 1323 the only allusion to torture is in the recital of the case of Calverie, but there are numerous instances in which the information wrung from the convicts who had no hope of escape could scarce have been procured in any other manner. Bernard Gui, who conducted the Inquisition of Toulouse during this period, has too emphatically expressed his sense of the utility of torture on both principals and witnesses for us to doubt his readiness in its employment.[377]
The result of Clement's investigation in 1306 led to an effort at reform which was agreed to in the Council of Vienne in 1311, but with customary indecision Clement delayed the publication of the considerable body of legislation adopted by the council until his death, and it was not issued till October, 1317, by his successor John XXII. Among the abuses which he sought to limit was that of torture, and to this end he ordered that it should not be administered without the concurrent action of bishop and inquisitor if this could be had within the space of eight days. Bernard Gui emphatically remonstrated against this as seriously crippling the efficiency of the Inquisition, and he proposed to substitute for it the meaningless phrase that torture should only be used with mature and careful deliberation, but his suggestion was unheeded, and the Clementine regulation remained the law of the Church.[378]
The inquisitors, however, were too little accustomed to restraint in any form to submit long to this infringement on their privileges. It is true that disobedience rendered the proceedings void, and the unhappy wretch who was unlawfully tortured without episcopal consultation could appeal to the pope, but this did not undo the work; Rome was distant, and the victims of the Inquisition for the most part were too friendless and too helpless to protect themselves in such illusory fashion. In Bernard Gui's "Practica," written probably about 1328 or 1330, he only speaks of consultation with experts, making no allusions to bishops; Eymerich adheres to the Clementines, but his instructions as to what is to be done in case of their disregard shows how frequent was such action; while Zanghino boldly affirms that the canon is to be construed as permitting torture by either bishop or inquisitor. In some proceedings against the Waldenses of Piedmont in 1387, if the accused did not confess freely on a first examination an entry was made that the inquisitor was not content, and twenty-four hours were given the prisoner to amend his statements; he would be tortured and brought back next morning in a more complying frame of mind, when a careful record would be made that his confession was without torture and aloof from the torture-chamber. Cunning casuists, moreover, discovered that Clement had only spoken of torture in general and had not specifically alluded to witnesses, whence they concluded that one of the most shocking abuses of the system, the torture of witnesses, was left to the sole discretion of the inquisitor, and this became the accepted rule. It only required an additional step to show that after the accused had been convicted by evidence or had confessed as to himself, he became a witness as to the guilt of his friends and thus could be arbitrarily tortured to betray them. Even when the Clementines were observed, the limit of eight days enabled the inquisitor to proceed independently after waiting for that length of time.[379]
While witnesses who were supposed to be concealing the truth could be tortured as a matter of course, there was some discussion among jurists as to the amount of adverse evidence that would justify placing the accused on the rack. Unless there was some colorable reason to believe that the crime of heresy had been committed, evidently there was no excuse for the employment of such means of investigation. Eymerich tells us that when there are two incriminating witnesses, a man of good reputation can be tortured to ascertain the truth, while if he is of evil repute he can be condemned without it or can be tortured on the evidence of a single witness. Zanghino, on the other hand, asserts that the evidence of a single witness of good character is sufficient for the authorization of torture, without distinction of persons, while Bernardo di Como says that common report is enough. In time elaborate instructions were drawn up for the guidance of inquisitors in this matter, but their uselessness was confessed in the admission that, after all, the decision was to be left to the discretion of the judge. How little sufficed to justify the exercise of this discretion is seen when jurists held it to be sufficient if the accused, on examination, was frightened and stammered and varied in his answers, without any external evidence against him.[380]
In the administration of torture the rules adopted by the Inquisition became those of the secular courts of Christendom at large, and therefore are worth brief attention. Eymerich, whose instructions on the subject are the fullest we have, admits the grave difficulties which surrounded the question, and the notorious uncertainty of the result. Torture should be moderate, and effusion of blood be scrupulously avoided, but then, what was moderation? Some prisoners were so weak that at the first turn of the pulleys they would concede anything asked them; others so obstinate that they would endure all things rather than confess the truth. Those who had previously undergone the experience might be either the stronger or the weaker for it, for with some the arms were hardened, while with others they were permanently weakened. In short, the discretion of the judge was the only rule.
Both bishop and inquisitor ought rightfully to be present. The prisoner was shown the implements of torment and urged to confess. On his refusal he was stripped and bound by the executioners and again entreated to speak, with promises of mercy in all cases in which mercy could be shown. This frequently produced the desired result, and we may be assured that the efficacy of torture lay not so much in what was extracted by its use as in the innumerable cases in which its dread, near or remote, paralyzed the resolution with agonizing expectations. If this proved ineffectual, the torture was applied with gradually increased severity. In the case of continued obstinacy additional implements of torment were exhibited and the sufferer was told that he would be subjected to them all in turn. If still undaunted, he was unbound, and the next or third day was appointed for renewal of the infliction. According to rule, torture could be applied but once, but this, like all other rules for the protection of the accused, was easily eluded. It was only necessary to order, not a repetition, but a "continuance" of the torture, and no matter how long the interval, the holy casuists were able to continue it indefinitely; or a further excuse would be found in alleging that additional evidence had been discovered, which required a second torturing to purge it away. During the interval fresh solicitations were made to elicit confession, and these being unavailing, the accused was again subjected to torment either of the same kind as before or to others likely to prove more efficacious. If he remained silent after torture, deemed sufficient by his judges, some authorities say that he should be discharged and that a declaration was to be given him that nothing had been proved against him; others, however, order that he should be remanded to prison and be kept there. The trial of Bernard Délicieux, in 1319, reveals another device to elude the prohibition of repeated torture, for the examiners could at any moment order the torture to satisfy their curiosity about a single point, and thus could go on indefinitely with others.
Any confession made under torture required to be confirmed after removal from the torture-chamber. Usually the procedure appears to be that the torture was continued until the accused signified his readiness to confess, when he was unbound and carried into another room where his confession was made. If, however, the confession was extracted during the torture, it was read over subsequently to the prisoner and he was asked if it were true: there was, indeed, a rule that there should be an interval of twenty-four hours between the torture and the confession, or its confirmation, but this was commonly disregarded. Silence indicated assent, and the length of silence to be allowed for was, as usual, left to the discretion of the judge, with warning to consider the condition of the prisoner, whether young or old, male or female, simple or learned. In any case the record was carefully made that the confession was free and spontaneous, without the pressure of force or fear. If the confession was retracted, the accused could be taken back for a continuance of the torture--not, as we are carefully told, for a repetition--provided always that he had not been "sufficiently" tortured before.[381]
The question as to the retraction of confession was one which exercised to no small degree the inquisitorial jurists, and practice was not wholly uniform. It placed the inquisitor in a disagreeable position, and, in view of the methods adopted to secure confession, it was so likely to occur that naturally stringent measures were adopted to prevent it. Some authorities draw a distinction between confessions made "spontaneously" and those extorted by torture or its threat, but in practice the difference was disregarded. The most merciful view taken of revocation is that of Eymerich, who says that if the torture had been sufficient, the accused who persistently revokes is entitled to a discharge. In this Eymerich is alone. Some authorities recommend that the accused be forced to withdraw his revocation by repetition of torture. Others content themselves with regarding it as impeding the Inquisition, and as such including it in the excommunication regularly published by parish priests and at the opening of every auto de fé, and this excommunication included notaries who might wickedly aid in drawing up such revocations. The general presumption of law, however, was that the confession was true and the retraction a perjury, and the view taken of such cases was that the retraction proved the accused to be an impenitent heretic, who had relapsed after confession and asking for penance. As such there was nothing to be done with him but to hand him over to the secular arm for punishment without a hearing. It is true, that in the case of Guillem Calverie, thus condemned in 1319 by Bernard Gui for withdrawing his confession, the culprit was mercifully allowed fifteen days in which to revoke his revocation, but this was a mere exercise of the discretion customarily lodged with the inquisitor. How strictly the rule was construed which regarded revocation as relapse is seen in the remark of Zanghino, that if a man had confessed and abjured and been set free under penance, and if he subsequently remarked in public that he had confessed under fear of expense or to avoid heavier punishment, he was to be regarded as an impenitent heretic, liable to be burned as a relapsed. We shall see hereafter the full significance of this point in its application to the Templars. There was an additional question of some nicety which arose when the retracted confession incriminated others besides the accused; in this case the most merciful view taken was that, if it was not to be held good against them, the one who confessed was liable to punishment for false-witness. As no confession was sufficient which did not reveal the names of partners in guilt, those inquisitors who did not regard revocation as relapse could at least imprison the accused for life as a false witness.[382]
* * * * *
The inquisitorial process as thus perfected was sure of its victim. No one whom a judge wished to condemn could escape. The form in which it became naturalized in secular jurisprudence was less arbitrary and effective, yet Sir John Fortescue, the chancellor of Henry VI., who in his exile had ample opportunity to observe its working, declares that it placed every man's life or limb at the mercy of any enemy who could suborn two unknown witnesses to swear against him.[383]
X. EVIDENCE
We have seen in the foregoing chapter the inevitable tendency of the inquisitorial process to assume the character of a duel between the judge and the accused with the former as the assailant. This deplorable result was the necessary outcome of the system and of the task imposed upon the inquisitor. He was required to penetrate the inscrutable heart of man, and professional pride perhaps contributed as much as zeal for the faith in stimulating him to prove that he was not to be baffled by the unfortunates brought before him in judgment.
In such a struggle as this the testimony of witnesses, for the most part, counted for little except as a basis for arrest and prosecution, and for threatening the accused with the unknown mass of evidence against him, and for this the slightest breath of scandal, even from a single person notoriously foul-mouthed, sufficed, without calling witnesses.[384] The real battlefield was the prisoner's conscience, and his confession the prize of victory. Yet the subject of evidence as treated by the Inquisition is not wholly to be passed over, for it affords fresh illustration of the manner in which the practice of construing everything "in favor of the faith" led to the development of the worst body of jurisprudence invented by man, and to the habitual perpetration of the foulest injustice. The matter-of-course way in which rules destructive of every principle of fairness are laid down by men presumably correct in the ordinary affairs of life affords a wholesome lesson as to the power of fanaticism to warp the intellect of the most acute.
This did not arise from any peculiar laxity of practice in the ordinary ecclesiastical courts. Their procedure, based upon the civil law, accepted and enforced its rules as to the admission of evidence, and the onus of proof lay upon the assertor of a fact. Innocent III., in his instructions as to the Cathari of La Charité, reminded the local authorities that even violent presumptions were not proof, and were insufficient for condemnation in a matter so heinous--a rule which was embodied in the canon law, where it became for the inquisitors merely an excuse for obtaining certitude by extorting confession. How completely they felt themselves emancipated from all wholesome restraint is shown by the remarks of Bernard Gui--"The accused are not to be condemned unless they confess or are convicted by witnesses, though not according to the ordinary laws, as in other crimes, but according to the private laws or privileges conceded to the inquisitors by the Holy See, for there is much that is peculiar to the Inquisition."[385]
From almost the inception of the Holy Office there was an effort to lay down rules as to what constituted evidence of heresy; but the Council of Narbonne, in 1244, winds up an enumeration of the various indications by saying that it is sufficient if the accused can be shown to have manifested by any word or sign that he had faith or belief in heretics or considered them to be "good men" (bos homes). The kind of testimony received was as flimsy and impalpable as the facts, or supposed facts, sought to be proved. In the voluminous examinations and depositions which have reached us from the archives of the Inquisition we find the witnesses allowed and encouraged to say everything that may occur to them. Great weight was attached to popular report or belief, and to ascertain this the opinion of the witness was freely received, whether based on knowledge or prejudice, hearsay evidence, vague rumors, general impressions, or idle gossip. Everything, in fact, that could affect the accused injuriously was eagerly sought and scrupulously written down. In the determined effort to ruin the seigneurs de Niort, in 1240, of the one hundred and eight witnesses examined scarce one was able to speak of his own knowledge as to any act of the accused. In 1254 Arnaud Baud of Montréal was qualified as "suspect" of heresy because he continued to visit his mother and aided her in her need after she had been hereticated, though there was absolutely nothing else against him; only delivering her up to be burned would have cleared him. It became, in fact, a settled principle of law that either husband or wife knowing the other to be a heretic and not giving information within a twelvemonth was held to be a consenting party without further evidence, and was punishable as a heretic.[386]
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 certitude 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 God 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 assumed 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 associates, and even as late as 1260 Alexander IV. was obliged to reassure 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 assumed 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 Montségur, 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 viaticum 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 principals. 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 God-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 assurance 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 hœreticus 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 assassinations 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 Béziers 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 Béziers 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 assume 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 Délicieux, 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 Carcassonne, 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 assume that detection occurred in a very small proportion of the cases; so when among the scanty documents that have reached us we see six false-witnesses (of whom two were priests and one a clerk), sentenced at an auto de fé 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 Carcassonne 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 assurance 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 assembly 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 God, 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]
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 Béziers 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 assumed in advance. The councils of Valence and Albi, in 1248 and 1254, while ordering inquisitors not to embarrass 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 assertion 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 manuscript 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 entitled 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 passed 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 illustrated by the circumstance that when, in 1300, Friar Bernard Délicieux was commissioned by his Franciscan provincial to defend the memory of Castel Fabri, and Nicholas d'Abbeville, the Inquisitor of Carcassonne, rudely refused him even an audience, he could find no notary in the city who dared to assist 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 Carcassonne to the king.[399]
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]
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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 mediæval 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 illustrated 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 tithes, 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 classify 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 classify 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 Angermünde, 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 fé, 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 principal 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 entitles the administration of justice to respect. The importance attached to the abjuration is illustrated 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.
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 assign 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 assassins, 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 title of the blessed Acerinus, in a chiaroscuro of 1505, among the Dominican saints. Not one, indeed, of those concerned in the assassination 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 assassinated, and Manfredo di Sesto, who had hired the assassins, 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]
Yet the theory which held the Church to be a loving mother unwillingly inflicting wholesome chastisement on her unruly children only lent a sharper rigor to most of the operations of the Inquisition. Those who were obdurate to its kindly efforts were ungrateful and disobedient when ingratitude and disobedience were offences of the most heinous nature. They were parricides whom it was mercy to reduce to subjection, and whose sin only the severest suffering could expiate. We have seen how little the inquisitor recked of human misery in his efforts to detect and convert the heretic, and it is not to be supposed that he would be more tender in his ministrations to the diseased souls asking for absolution and penance--and it was only the penitent who had confessed and abjured his sin who came before the judgment-seat for punishment. All others were left to the secular arm.
The flimsiness of this theory, however, is manifest from the fact that it was not only heretics--those who consciously erred in matters of faith--who were subjected to the jurisdiction and chastisement of the Inquisition. Fautors, receivers, and defenders--those who showed hospitality, gave alms, or sheltered or assisted heretics in any way, or neglected to denounce them to the authorities, or to capture them when occasion offered, also rulers who omitted to execute the laws against heresy, however orthodox themselves, incurred suspicion of heresy, simple, vehement, or violent. If violent, it was tantamount to heresy; if simple or vehement, we have seen how readily it might, by failure of purgation, or by repetition, grow into technical heresy and relapse, incurring the gravest penalties, including relaxation to the secular arm. Not less conclusive to the real import of the inquisitorial organization is the argument of Zanghino, that if a heretic repents, confesses to his priest, accepts and performs penance and receives absolution, however he may be relieved from hell and pardoned in the sight of God, he is not released from temporal punishment, and is still subject to prosecution by the Inquisition. It would not abandon its prey, while yet it could not impugn the efficacy of the sacrament of penitence, and such difficulties were eluded by forbidding priests to take cognizance of heresy, which was reserved for bishops and inquisitors.[416]
* * * * *
The penances customarily imposed by the Inquisition were comparatively few in number. They consisted, firstly, of pious observances--recitation of prayers, frequenting of churches, the discipline, fasting, pilgrimages, and fines nominally for pious uses, such as a confessor might impose on his ordinary penitents. These were for offences of trifling import. Next in grade are the "pœnœ confusibiles"--the humiliating and degrading penances, of which the most important was the wearing of yellow crosses sewed upon the garments; and, finally, the severest punishment among those strictly within the competence of the Holy Office, the "murus," or prison. Confiscation, as I have said, was an incident, and the stake, like it, was the affair of the secular power; and though both were really controlled by the inquisitor, they will be more conveniently considered separately. The Councils of Narbonne and Béziers, in addition, prescribe a purely temporal punishment--banishment, either temporary or perpetual--but this would appear to have been so rarely employed that it may be disregarded, although in the earlier period it occasionally occurs in sentences, or is found among the penances to which repentant heretics pledged themselves to submit.[417]
The sin of heresy was too grave to be expiated simply by contrition and amendment. While the Church professed to welcome back to her bosom all her erring and repentant children, the way of the transgressor was made hard, and his offence could only be washed away by penances severe enough to prove the robustness of his convictions. Before the Inquisition was founded, about 1208, St. Dominic, while acting under the authority of the Legate Arnaud, converted a Catharan named Pons Roger, and prescribed for him a penance which has chanced to be preserved. It will give us an insight into what were considered reasonable terms of readmission to the Church, at a time when it was straining every nerve to win the heretics back, and before it had fairly resorted to the use of force. On three Sundays the penitent is to be stripped to the waist and scourged by the priest from the entrance of the town of Tréville to the church-door. He is to abstain forever from meat and eggs and cheese, except on Easter, Pentecost, and Christmas, when he is to eat of them in sign of his abnegation of his Manichæan errors. For twoscore days, twice a year, he is to forego the use of fish, and for three days in each week that of fish, wine, and oil, fasting, if his health and labors will permit. He is to wear monastic vestments, with a small cross sewed on each breast. If possible, he is to hear mass daily, and on feast-days to attend church at vespers. Seven times a day he is to recite the canonical hours, and, in addition, the Paternoster ten times each day and twenty times each night. He is to observe the strictest chastity. Every month he is to show this paper to the priest, who is to watch its observance closely, and this mode of life is to be maintained until the legate shall see fit to alter it, while for infraction of the penance he is to be held as a perjurer and a heretic, and be segregated from the society of the faithful.[418]
This shows how the various forms of penance were mingled together at the discretion of the ghostly father. The same is seen in an exceedingly lenient sentence imposed in 1258 by the inquisitors of Carcassonne on Raymond Maria, who had confessed to various acts of heresy committed twenty or thirty years before, and who, for other reasons, had strong claims for merciful treatment. It further illustrates the practice of compounding pious observances for money. Raymond is ordered to fast from the Friday after Michaelmas until Easter, and to eat no meat on Saturdays, but he can redeem the fast by giving a denier to a poor man. Every day he is to recite seven times the Paternoster and Ave Maria. Within three years he is to visit the shrines of St. Mary of Roche-amour, St. Rufus of Aliscamp, St. Gilles of Vauverte, St. William of the Desert, and Santiago de Compostella, bringing home testimonial letters from the rector of each church; and in lieu of other penances he is to give six livres Tournois to the Bishop of Albi to aid in building a chapel. He is to hear mass at least every Sunday and feast-day, and to abstain from all work on those days. Another penance belonging to the same general category is that inflicted on a Carthusian monk of la Loubatière who was guilty of Spiritual Franciscanism. He was ordered not to leave the abbey for three years, and during that time not to speak except in extreme necessity. For a year he was to confess daily in the presence of his brethren that John XXII. was the true pope and entitled to obedience; and, in addition, he was to undergo certain fasts and perform certain recitations of the liturgy and psalter. Penances of this character could be varied ad infinitum at the caprice of the inquisitor.[419]
In all this there is no mention of flagellation, but that was so general a feature of penance that it is frequently taken for granted in prescribing pilgrimages and attendance at church. We have seen Raymond of Toulouse submitting to it, and however abhorrent it may be to our modern ideas, it did not carry with it that sense of humiliation which to us appears inseparable from it. In the lightest penalties provided for voluntary converts, coming forward within the time of grace, the Councils of Narbonne and Béziers, in 1244 and 1246, and that of Tarragona, in 1242, order the discipline. It was no light matter. Stripped as much as decency and the inclemency of the weather would permit, the penitent presented himself every Sunday, between the Epistle and the Gospel, with a rod in his hand, to the priest engaged in celebrating mass, who soundly scourged him in the presence of the congregation, as a fitting interlude in the mysteries of divine service. On the first Sunday in every month, after mass, he was to visit, similarly equipped, every house in which he had seen heretics, and receive the same infliction; and on the occasion of every solemn procession he was to accompany it in the same guise, to be beaten at every station and at the end. Even when the town happened to be placed under interdict, or himself to be excommunicated, there was to be no cessation of the penance, and apparently it lasted as long as the wretched life of the penitent, or at least until it pleased the inquisitor to remember him and liberate him. That this was no idle threat is shown by these precise details occurring in a formula given by Bernard Gui, about 1330, for the release from prison of penitents who by patience and humility in their captivity have earned a mitigation of their punishment, and virtually the same formula was employed immediately after the organization of the Inquisition.[420]
The pilgrimages, which were regarded as among the lightest of penances, were also mercies only by comparison. Performed on foot, the number commonly enjoined might well consume several years of a man's life, during which his family might perish. A frequent injunction by Pierre Cella, one of the most moderate of inquisitors, comprehended Compostella and Canterbury, with perhaps several intermediate shrines, and in one case a man over ninety years of age was ordered to perform the weary tramp to Compostella simply for having consorted with heretics. These pilgrimages were not without peril and hardship, although the hospitality exercised by the numerous convents on the road enabled the poorest pilgrim to sustain life. Still, pilgrimages were so habitual a feature of mediæval habits, and entered so frequently into ordinary penance, that their use by the Inquisition was inevitable. When the yearning for salvation was so strong that two hundred thousand pilgrims arriving in Rome in a single day is said to have been no uncommon occurrence during the Jubilee of 1300, the penitent who escaped with the performance of such pious observances might well regard himself as mercifully treated.[421]
The penitential pilgrimages of the Inquisition were divided into two classes--the greater and the less. In Languedoc the greater pilgrimages were customarily four--to Rome, Compostella, St. Thomas of Canterbury, and the Three Kings of Cologne. The smaller were nineteen in number, extending from shrines of local celebrity to Paris and Boulogne-sur-mer. The cases in which they were employed may be estimated by the sentence passed by Bernard Gui, in 1322, on three culprits whose only offence was that, some fifteen or twenty years before, they had seen Waldensian teachers in their fathers' houses without knowing what they were. Commencing within three months, the penitents were required to perform seventeen of the minor pilgrimages, reaching from Bordeaux to Vienne, bringing back, as usual, from each shrine testimonial letters of the visit. In this case it is specified that they were not obliged to wear the crosses, and I think it probable that this exempted them from scourging at each of the shrines, to which penitents with crosses would naturally be subjected. In one case, occurring in 1308, a culprit was excused from pilgrimages on account of his age and weakness, and was only required to make two visitations a year in the city of Toulouse. Considerate humanity such as this is not sufficiently common in the annals of the Inquisition for an example of it to be passed in silence.[422]
At the inception of the Inquisition the pilgrimage universally ordered for men was that to Palestine, as a crusader. Indeed, the legate, Cardinal Romano, commanded this for all who were suspect of heresy. It seems to have been felt that the best use to which a heretic could be put, if he was to escape the fagot, was to make him aid in the defence of the Holy Land--a service of infinite hardship and peril. In the wholesale persecutions in Languedoc the numbers of these unwilling crusaders were so great that alarm was excited lest they should pervert the faith in the land of its origin, and about 1242 or 1243 a papal prohibition was issued, forbidding it for the future. The Council of Béziers, in 1246, commits to the discretion of the inquisitors whether penitents shall serve beyond seas, or send a man-at-arms to represent them, or fight the battles of the faith nearer home, against heretics or Saracens. The term of service was also left to the inquisitors, but was usually for two or three years, though sometimes for seven or eight, and those who went to Palestine, if they were so fortunate as to return, were obliged to bring back testimonial letters from the Patriarch of Jerusalem or Acre. When Count Raymond was preparing to fulfil his long-delayed vow of a crusade, in his eagerness for recruits he procured in 1247, from Innocent IV., a bull empowering the Archbishop of Ausch and Bishop of Agen, within Raymond's dominions, to commute into a pilgrimage beyond seas the penance of temporary crosses and prison, and even when these were perpetual, if the consent could be had of the inquisitor who had uttered the sentence; and the following year this was extended to those in the territories of the Counts of Montfort. Under this impulsion, the penance of crusading became common again. There is extant a notice given by the inquisitors of Carcassonne, October 5, 1251, in the church of St. Michael, to those wearing crosses and those relieved from them, that they must without fail sail for the Holy Land, as they had pledged themselves to do, in the next fleet; and in the Register of Carcassonne the injunction of the crusade is of frequent occurrence. With the disastrous result of the ventures of St. Louis and the fall of the Kingdom of Jerusalem this form of penance gradually diminished, but it continued to be occasionally prescribed. As late as 1321 we find Guillem Garric condemned to go beyond seas with the next convoy and remain until recalled by the inquisitor; if legitimately impeded (which was likely, as he was an old man who had rotted in a dungeon for thirty years) he could replace himself with a competent fighting-man, and if he neglected to do so, he was condemned to perpetual prison. This sentence, moreover, affords one of the rare instances of banishment, for Guillem, besides furnishing a substitute, is ordered to expatriate himself to such place as shall be designated, during the pleasure of the inquisitor.[423]
These penances did not interfere with the social position and self-respect of the penitent. Far heavier was the apparently simple penalty of wearing the crosses, which was known as a pœna confusibilis, or humiliating punishment. We have seen that already, in 1208, St. Dominic orders his converted heretic to wear two small crosses on the breast in sign of his sin and repentance. It seems a contradiction that the emblem of the Redemption, so proudly worn by the crusader and the military orders, should be to the convert an infliction almost unbearable, but when it became the sign of his sin and disgrace there were few inflictions which might not more readily be borne. The two little crosses of St. Dominic grew to conspicuous pieces of saffron-colored cloth, of which the arms were two and a half fingers in breadth, two and a half palms in height, and two palms in width, one sewed on the breast and the other on the back, though occasionally one on the breast sufficed. If the convert during his trial had committed perjury, a second transverse arm was added at the top; and if he had been a "perfected" heretic, a third cross was placed upon the cap. Another form was that of a hammer, worn by prisoners temporarily liberated on bail; and we have seen the red tongues fastened on false-witnesses, and the symbol of a letter inflicted on a forger, while other emblematical forms were prescribed, as the fancy of the inquisitor might dictate. They were never to be laid aside, in doors or out, and when worn out the penitent was obliged to renew them. During the latter half of the thirteenth century those who went beyond seas might abandon their crosses during their crusade, but were obliged to reassume them on returning. In the earlier days of the Inquisition a term ranging from one year to seven or eight was usually prescribed, but in the later period it was always for life, unless the inquisitor saw fit, as a reward of good behavior, to remit it. Thus in the auto de fé of 1309 Bernard Gui permitted Raymonde, wife of Étienne Got, to remove the crosses which she had been condemned to wear, some forty years before, by Pons de Poyet and Étienne de Gâtine.[424]
The Council of Narbonne, in 1229, prescribed the wearing of these crosses by all converts who voluntarily abandoned heresy and returned to the faith of their own free will, as an evidence of their detestation of their former errors. Apparently the penance was found hard to bear, and efforts were made to escape it, for the statutes of Raymond, in 1234, and the Council of Béziers of the same year, threaten confiscation for all who refuse to wear them, or endeavor to conceal them. Subsequent councils renewed and extended the obligation on all who were reconciled to the Church; and that of Valence, in 1248, decreed that all who disobeyed should be forced without mercy to resume them, and that abandoning them after due monition should be visited, like jail-breaking, with the full penalties of impenitent heresy. In a case recorded in 1251, a penitent preparing for a crusade seems to have thought himself authorized to abandon the crosses before starting, and was sentenced to come to Carcassonne on the first Sunday of every month until his departure, barefooted and in shirt and drawers, and visit every church in the city, with a rod, to undergo scourging.[425]
Though this penance was regarded as merciful in comparison with imprisonment, it was not easily endurable, and we can readily understand the sharp penalties required to enforce obedience. In the sentences of Pierre Cella it is only prescribed in aggravated cases, and then merely for from one to five years, though subsequently it grew to be universal, and without a limit of time. The unfortunate penitent was exposed to the ridicule and derision of all whom he met, and was heavily handicapped in every effort to earn a livelihood. Even in the earlier time, when a majority of the population of Languedoc were heretics, and the cross-wearers were so numerous that their presence in Palestine was dreaded, the Council of Béziers, in 1246, feels obliged to warn the people that penitents should be welcomed and their cheerful endurance of penance should be a subject of gratulation for all the faithful, and therefore it strictly forbids ridicule of those who wear crosses, or refusal to transact business with them. Though penitents were under the special protection of the Church, it had too zealously preached detestation of heresy to be able to control the feelings of the population towards those whom it thus saw fit to stigmatize. A slight indication of this is seen in the case of Raymonde Manifacier, who, in 1252, was cited before the Inquisition of Carcassone for abandoning the crosses, when she urged in extenuation that the one on her cloak had been torn and she was too poor to replace it, while as regards that on her cape, her mistress, whom she served as nurse, had forbidden her to wear it and had given her a cape without one. A stronger case is that already cited of Arnaud Isarn, who found, after year's experience, that he could not earn a living while thus bearing the marks of his degradation.[426]
The Inquisition recognized the intolerable hardships to which its penitents were exposed, and sometimes in mercy mitigated them. Thus, in 1250, at Carcassonne, Pierre Pelha receives permission to lay aside the crosses temporarily during a voyage which he is obliged to make to France. Bernard Gui assures us that young women were frequently excused from wearing them, because with them they would be unable to find husbands; and among the formulas of his "Practica" one which exempts the penitent from crosses enumerates the various reasons usually assigned, such as the age or infirmity of the wearer (presumably rendering him a safe object of insult) or on account of his children, whom he may not otherwise be able to support, or for the sake of his daughters, whom he cannot marry. Still more suggestive are formulas of proclamations threatening to prosecute as impeders of the Inquisition and to impose crosses on those who ridicule such penitents or drive them away or prevent them from following their callings; and the insufficiency of this is shown by still other formulas of orders addressed to the secular officials, who are required to see that no such outrages are perpetrated. Sometimes monitions of this kind formed part of the regular proceedings of the autos de fé. The wearing of the symbol of Christianity was evidently a punishment of no slight character. The well-known sanbenito of the modern Spanish Inquisition was derived from the scapular with saffron-colored crosses which was worn by those condemned to imprisonment, when on certain feast-days they were exposed at the church doors, that their misery and humiliation might serve as a warning to the people.[427]
* * * * *
It will be remembered that at the outset there was some discussion as to whether it should be competent for the inquisitors to inflict the pecuniary penance of fines. The voluntary poverty and renunciation of money of the Mendicants, to whom the Holy Office was confided, had not yet become so obsolete that the incongruity could be overlooked of their using their almost limitless discretion in levying fines and handling the money thence accruing. That they commenced it early is shown by a sentence of 1237, already quoted, in which Pons Grimoardi, a voluntary convert, is required to pay to the order of the inquisitor ten livres Morlaas, while in 1245, in Florence, one rendered by the indefatigable inquisitor, Ruggieri Calcagni, shows that already fines were habitual there. It was not without cause, therefore, that the Council of Narbonne, in 1244, in its instructions to inquisitors, ordered them to abstain from pecuniary penances both for the sake of the honor of their Order and because they would have ample other work to do. The Order itself felt this to be the case, and as inquisitors were not yet, at least in theory, emancipated from the control of their superiors, already, in 1242, the Provincial Chapter of Montpellier had endeavored to enforce the rules of the Order by strictly prohibiting them from inflicting pecuniary penances for the future, or from collecting those which had already been imposed. How little respect was shown to these injunctions is visible from a bull of Innocent IV., in 1245, in which, to preserve the reputation of the inquisitors, he orders all fines paid over to two persons selected by the bishop and inquisitor, to be expended in building prisons and in supporting prisoners, in compliance with which the Council of Béziers, in 1246, abandoned the position taken by the Council of Narbonne, and agreed that the fines should be employed on the prisons, and in defraying the necessary expenses of the Inquisition, possibly because the good bishops found that they themselves were expected to meet these demands as appertaining to the episcopal jurisdiction. In an inquisitorial manual of the period this is specified as the destination of the fines, but the power was speedily abused, and in 1249 Innocent IV. sternly rebuked the inquisitors in general for the heavy exactions which they wrung from their converts, to the disgrace of the Holy See and the scandal of the faithful at large. This apparently had no effect, and in 1251 he prohibited them wholly from levying fines if any other form of penance could be employed. Yet the inquisitors finally triumphed and won the right to inflict pecuniary penances at discretion. These were understood to be for pious uses, in which term were included the expenses of the Inquisition; and as they were payable to the inquisitors themselves, they doubtless were so expended--it is to be hoped in accordance with the caution of Eymerich, "decently and without scandal to the laity." In the sentences of Frà Antonio Secco on the peasants of the Waldensian valleys in 1387, the penance of crosses is usually accompanied with a fine of five or ten florins of pure gold, payable to the Inquisition, nominally to defray the expenses of the trial. An attempt of the State to secure a share was defeated by a council of experts assembled at Piacenza in 1276 by the Lombard inquisitors, Frà Niccolò da Cremona and Frà Daniele da Giussano. A more decent use of the power to inflict money payments was one which Pierre Cella, the first inquisitor of Toulouse, frequently employed, by adding to the pilgrimages or other penances imposed the obligation of maintaining a priest or a poor man for a term of years or for life.[428]
In the later period of the Inquisition it was argued that fines were inadmissible, because if the accused were a heretic all his property disappeared in confiscation, while if he were not he should not be punished, but the inquisitors responded that, although this was true, there were fautors and defenders of heresy, and those whose heresy consisted merely in a thoughtless word, all of whom could legitimately be fined; and the profitable abuse went on.[429]
Scarcely separable from the practice of fines was that of commuting penances for money. When we remember how extensive and lucrative was the custom of commuting the vows of crusaders, it was inevitable that a similar abuse should flourish in the Church's dealings with the penitents whom the Inquisition had placed within its power. A ready excuse was found in the proviso that the sums thence arising should be spent in pious uses--and no use could be more pious than that of ministering to the wants of those who were zealously laboring for the purity of the faith. In this the Holy See set the example. We have seen how, in 1248, Algisius, the papal penitentiary, ordered the release, by authority of Innocent IV., of six prisoners who had confessed heresy, alleging as a reason the satisfactory contributions which they had made to the Holy Land. The same year Innocent formally authorized Algisius to commute the penalties of certain heretics, without regard to the inquisitors, and he further empowered the Archbishop of Ausch to transmute into subsidies the penances imposed on reconciled heretics. Raymond was preparing for his crusade, and the excuse was a good one. The heretics were eager to escape by sacrificing their substance, and the project promised to be profitable. In 1249, accordingly, Algisius was sent to Languedoc armed with power to commute all inquisitorial penances into fines to be devoted to the needs of the Church and of the Holy Land, and to issue all necessary dispensations notwithstanding the privileges of the Inquisition. It is not to be supposed that the example was lost upon the inquisitors. Naturally enough, the cases which have reached us usually specify some pious work to which the funds were to be devoted, as when, in 1255, the inquisitors of Toulouse allowed twelve of the principal citizens of Lavaur to commute their penances into money to be contributed to building the church which was afterwards the Cathedral of Lavaur; and in 1258 they assisted the church of Najac in the same way by allowing a number of the inhabitants to redeem their penalties for its benefit. The public utility of bridges caused them to be included in the somewhat elastic term of pious uses. Thus, in 1310, at Toulouse, Mathieu Aychard is released from wearing crosses and performing certain pilgrimages on condition of contributing forty livres Tournois to a new bridge then under construction at Tonneins; and in a formula for such transactions given by Bernard Gui, absolution and dispensation from pilgrimages and other penances are said to be granted in consideration of the payment of fifty livres for the building of a certain bridge, or of a certain church, or "to be spent in pious uses at our discretion." This last clause shows that commutations were by no means always thus liberally disposed of, and in fact they often inured to the benefit of those imposing them. We have a specimen of this in letters of the Inquisitor of Narbonne in 1264, granting absolution to Guillem du Puy in consideration of his giving one hundred and fifty livres Tournois to the Inquisition. The magnitude of these sums shows the eagerness of the penitents to escape, and the enormous power of extortion wielded by the inquisitor. If he was a man of integrity he could doubtless resist the temptation, but to the covetous and self-indulgent the opportunity of oppressing the helpless was almost unlimited. The system was kept up to the end. Under Nicholas V. Fray Miguel, the Inquisitor of Aragon, gave mortal offence to some high dignitaries in following certain papal instructions, whereupon they maltreated him and kept him in prison for nine months. It was a flagrant case of impeding the Inquisition, and in 1458 Pius II. ordered the Archbishop of Tarragona to dig up the bones of one of the offenders who had died, and to send the rest to the Holy See for judgment--but he added that the archbishop might, at his discretion, substitute a mulct for the war against the Turks, to be transmitted to the papal camera. It goes without saying that the death-penalty could never legally be commuted.[430]
Penitents who died before fulfilling their penance afforded a specially favorable opportunity for such transactions as these. Death, as we have seen, afforded no immunity from the jurisdiction of the Inquisition and in no wise abated its energy of prosecution. There might be a distinction drawn in practice between those who were taken off while humbly performing the penance assigned to them, but before its completion, and those who had wilfully neglected its commencement; but legally the non-fulfilment of penance entailed condemnation for heresy whether in the dead or living. In 1329, for instance, the Inquisition of Carcassonne ordered the exhumation and cremation of the bones of seven persons declared to have died in heresy for not having fulfilled the penance enjoined on them, which of course carried with it the confiscation of their property and the subjection of their descendants to the usual disabilities. The Councils of Narbonne and Albi directed the inquisitors to exact satisfaction at discretion from the heirs of those who had died before judgment, if they would have been condemned to wear crosses, as well as those who had confessed and been sentenced, and who had not lived, whether to commence or to complete their penance. Gui Foucoix expresses his belief that in these cases the penitent is admitted to purgatory, and he decides that nothing should be demanded from his heirs; but even his authority did not overcome the more palatable doctrine of the councils, and a contemporary manual directs the inquisitor to exact a "congruous satisfaction." There is something peculiarly repulsive in the rapacity which thus followed beyond the grave those who had humbly confessed and repented and were received into the bosom of the Church, but the Inquisition was unrelenting and exacted the last penny. For instance, the Inquisitor of Carcassonne had prescribed five years' pilgrimage to the Holy Land for Jean Vidal, who died before performing it. March 21, 1252, his heirs, under citation, swore that his whole estate was worth twenty livres, and gave security to obey the decision of the inquisitor, which was announced the following August, and proved to be a demand for twenty livres--the entire value of his property. In another case, Raymonde Barbaira had died before accomplishing some pilgrimages with crosses to which she had been sentenced. An inventory of her property showed it to consist of some bedding, clothing, a chest, a few cattle, and four sous in money, which had been divided up among her kindred, and from this pitiful inheritance the inquisitor, on March 7, 1256 demanded forty sous, for the payment of which by Easter the heirs had to give security. Such petty and vulgar details as these give us a clearer insight into the spirit and working of the Inquisition, and of the grinding oppression which it exercised on the subject populations. Even in the case of fautors who were not heretics, the heirs were obliged to perform any pecuniary penance which had been inflicted upon them.[431]
A more legitimate source of income, but yet one which opened the door to grave abuses, was the custom of taking bail, which of course was liable to forfeiture, serving, in such cases, as an irregular form of commutation. This custom dated from the inception of the Inquisition, and was practised at every stage of the proceedings, from the first citation to the final sentence, and even afterwards, when prisoners were sometimes liberated temporarily on giving security for their return. The convert who was absolved on abjuring was also required to give security that he would not relapse. Thus, in 1234, we see Lantelmo, a Milanese noble, ordered to give bail in two thousand lire, and two Florentine merchants bailed by their friends in two thousand silver marks. So, in 1244, the Baroni, of Florence, gave bail in one thousand lire to obey the mandates of the Church; and in 1252 a certain Guillem Roger pledged one hundred livres that he would go beyond seas by the next fleet and serve there for two years. The security was always to be pecuniary, and the inquisitor was warned not to take it of heretics, for their offence implied confiscation, but this was not strictly observed, as in special cases friends were found who furnished the necessary pledges. Forfeited bail was payable to the inquisitor, sometimes directly, and sometimes through the hands of the bishops, and was to be used for the expenses of the Inquisition. The usual form of bond pledged all the property of the principal and that of two sureties, jointly and severally; and as a general rule bail may be said to have been universal, except in cases where the offence was regarded as too serious to admit of it, or when the offender could not procure it.[432]
It was impossible that these methods of converting the sentences of the Inquisition into current coin could flourish without introducing wide-spread corruption. Admission to bail might be the result of favoritism or degenerate into covert bribery. The discretion of the inquisitor was so wide that bribery itself could be safely indulged in. A crime necessarily so secret as this form of extortion cannot be expected to leave traces behind it, except in those cases in which it proved a failure, but sufficient instances of the latter are on record to show that the tribunals were surrounded by men who made a trade of their influence, real or presumed, with the judges. When these were incorruptible the business was suppressed with more or less success, but when they were acquisitive, they had ample field for unhallowed gain, to be wrung without stint or check from the subject populations both by bribery and extortion. Considering that every one above the age of seven was liable to the indelible suspicion of heresy by the mere fact of citation, it will be seen what an opportunity lay before the inquisitor and his spies and familiars to practise upon the fears of all, to sell exemptions from arrest, as well as to bargain for liberation. That these fruitful sources of gain were not abundantly worked would be incredible even in the absence of proof, but proof sufficient exists. In 1302 Boniface VIII. wrote to the Dominican Provincial of Lombardy that the papal ears had been lacerated with complaints of the Franciscan inquisitors of Padua and Vicenza, whose malicious cupidity had wronged many men and women by exacting from them immense sums and inflicting on them all manner of injuries. When the pope naïvely adduces in cumulation of their villainy that these wrong-doers had not employed the illicit gains for the benefit of the Holy Office, or of the Roman Church, or even of their own Order, he affords ground for the suspicion that a judicious distribution of the spoils secured silent condonation of such offences in many cases. He had sent Gui, Bishop of Saintes, to investigate these complaints, who reported them well founded, and he orders the provincial to replace the delinquents with Dominicans. The change brought little relief, for the very next year Mascate de' Mosceri, a jurist of Padua, appealed to Benedict from the new Dominican inquisitor, Frà Benigno, who was vexing him with prosecutions in order to extort money from him; and in 1304 Benedict was obliged to address to the inquisitors of Padua and Vicenza a grave warning as to the official complaints which still arose about their fraudulent prosecution of good Catholics by means of false witnesses. It is easy to understand the complaint made by the stricter Franciscans that the inquisitors of their Order rode around in state in place of walking barefoot as was prescribed by the rule. At this very time, moreover, the Dominicans of Languedoc were the subject of precisely similar arraignment on the part of the communities subjected to them. Redress in this case was long in coming, but at last the investigation set on foot by Clement V. convinced him of the truth of the facts alleged, and at the Council of Vienne, in 1311, he caused the adoption of canons, embodied in the Corpus Juris, which placed on record conspicuously his conviction that the inquisitorial office was frequently abused by the extortion of money from the innocent and the escape of the guilty through bribery. The remedy which he devised, of ipso facto excommunication in such cases, was complained of by Bernard Gui on the ground that it would invalidate the rightful acts, as well as the evil ones, of the wrong-doer; which only serves to show the vicious circle in which the whole business moved. Yet neither the hopes of Clement nor the fears of Bernard were justified by the result. The inquisitors continued to enrich themselves and the people to suffer untold miseries. In 1338 a papal investigation was made of a transaction by which the city of Albi purchased, by the payment of a sum of money to the Inquisitor of Carcassonne, the liberation of some citizens accused of heresy. In 1337 Benedict XII. ordered his nuncio in Italy, Bertrand, Archbishop of Embrun, to investigate the complaints which came from all parts of Italy that the inquisitors extorted money, received presents, allowed the guilty to escape, and punished the innocent, through hatred or avarice, and empowered him to make removals in consequence; and the exercise of this power shows that the complaints were well founded. The effects of the measure, however, were evanescent. In 1346 the whole republic of Florence rose against their inquisitor, Piero di Aquila, for various abuses, among which figured extortion. He fled and refused to return during the investigation which followed, in spite of the offer of a safe-conduct. A single witness swore to sixty-six cases of extortion, and in a partial list of them which has been preserved the sums exacted vary from twenty-five to seventeen hundred gold florins, showing how unlimited were the profits which tempted the unscrupulous. Villani tells us that in two years he had thus amassed more than seven thousand florins, an enormous sum in those days; that there were no heretics in Florence at the time, and that the offences which thus proved so lucrative to him consisted of usury and thoughtless blasphemy. As for usury, Alvaro Pelayo tells us that at that time the bishops of Tuscany set the example by habitually so employing the church funds, but the inquisitors did not meddle with the prelates. As for blasphemy, the subtle refinements which converted simple blasphemous expressions into heresy, as set forth by Eymerich, show how readily a skilful inquisitor could speculate on idle oaths. Boccaccio doubtless had Frà Piero in memory when he described the recent inquisitor of Florence who, like all his brethren, had an eye as keen to discover a rich man as a heretic, and who extracted a heavy douceur from a citizen for boasting in his cups that he had wine so good that Christ would drink it. The keenness which thus made profitable business for the Holy Office, when heresy was declining, is illustrated by the case of Marie du Canech, a money-changer of Cambrai, in 1403. In a case before the Ordinary she incautiously expressed the opinion that when under oath she was not bound to give evidence against her own honor and interest. For this the deputy inquisitor, Frère Nicholas de Péronne, prosecuted her and condemned her to various penances, including nine years' abstention from business and eighty gold crowns for expenses.[433]
These abuses continued to the last. Cornelius Agrippa tells us that it was customary for inquisitors to convert corporal punishments into pecuniary ones and even to exact annual payments as the price of forbearance. When he was in the Milanese, about 1515, there was a disturbance caused by their secretly extorting large sums from women of noble birth, whose husbands at length discovered it, and the inquisitors were glad to escape with their lives.[434]
I have dwelt at some length upon this feature of the Inquisition because it is one which has rarely received attention, although it inflicted misery and wrong to an almost unlimited extent. The stake consumed comparatively few victims. While the horrors of the crowded dungeon can scarce be exaggerated, yet more effective for evil and more widely exasperating was the sleepless watchfulness which was ever on the alert to plunder the rich and to wrench from the poor the hard-earned gains on which a family depended for support. It was only in rare cases that the victims dared to raise a cry, and rarer still were those in which that cry was heard; but sufficient instances have reached us to prove what a scourge was the institution, in this aspect alone, on all the populations cursed by its presence. At a very early period the wealthy already recognized that well-timed liberality was advisable towards those who held such power in the hollow of their hands. In 1244 the Dominican Chapter of Cahors lifted a warning voice and ordered inquisitors not to allow their brethren to receive presents which would expose the whole Order to disrepute; but this scrupulousness wore off, and even a man of high character like Eymerich could argue that inquisitors may properly be the recipients of gifts, though he dubiously adds that they ought to be refused from those under trial, except in special circumstances. As the accounts of the Inquisition were rendered only to the papal camera, it will be seen how little the officials had to dread investigation and exposure. As little had they to fear the divine wrath, for their very functions, while thus engaged, insured them plenary indulgence for all sins confessed and repented. Thus secure, here and hereafter, they were virtually relieved from all restraint.[435]
* * * * *
There was one purely temporal penalty which came within the competence of the Inquisition--the designation of the houses which were to be destroyed in consequence of the contamination of heresy. The origin of this curious practice is not readily traced. Under the Roman law, buildings in which heretics held their conventicles with the owner's consent were not torn down, but were forfeited to the Church. Yet as soon as heresy began to be formidable we find their destruction commanded by secular rulers with singular unanimity. The earliest provision I have met with occurs in the assizes of Clarendon in 1166, which order the razing of all houses in which heretics were received. The example was followed by the Emperor Henry VI. in the edict of Prato, in 1194, by Otho IV. in 1210, and by Frederic II. in the edict of Ravenna, in 1232, as an addition to his coronation-edict of 1220, from which it had been omitted. It had already been adopted in the code of Verona in 1228 in all cases in which the owner, after eight days' notice, neglected to expel heretic occupants; it is found in the statutes of Florence a few years later, and is included in the papal bulls defining the procedure of the Inquisition. In France the Council of Toulouse, in 1229, decreed that any house in which a heretic was found was to be destroyed, and this was given the force of secular law by Count Raymond in 1234. It naturally forms a feature of the legislation of the succeeding councils which regulated the inquisitorial proceedings, and was adopted by St. Louis. Castile, in fact, seems to be the only land in which the regulation was not observed, owing doubtless to the direct derivation of its legislation from the Roman law, for, in the Partidas, houses in which heretics were sheltered are ordered to be given to the Church. Elsewhere such dwellings were razed to the ground, and the site, as accursed, was to remain forever a receptacle for filth and unfit for human habitation; yet the materials could be employed for pious uses unless they were ordered to be burned by the inquisitor who rendered the sentence. This sentence was addressed to the parish priest, with directions to publish it for three successive Sundays during divine service.[436]
In France the royal officials in charge of the confiscations came at length to object to this destruction of property, which was sometimes considerable, as the castle of the seigneur was as liable to it as the cabin of the peasant. In 1329 it forms one of the points for which the Inquisitor of Carcassonne, Henri de Chamay, asked and obtained the confirmation of Philippe de Valois, and the same year he had the satisfaction, in an auto held in September, to order the destruction of four houses, and a farm, whose owners had been hereticated in them on their death-beds. Some fifty years later, however, a quarrel on the subject between the king's representatives and the inquisitors of Dauphiné resulted differently. Charles le Sage, after consulting with the pope, issued letters of October 19, 1378, ordering that the penalty should no longer be enforced. The independent spirit of northern Germany manifested itself in the same manner, and in the Sachsenspiegel there is a peremptory command that no houses shall be destroyed except for rape committed within them. In Italy the custom continued, as there the confiscations did not inure to the sovereign, but it was held that if the owner had no guilty knowledge of the use made of his house he was entitled to keep it. Lawyers disputed, however, as to the perpetuity of the prohibition to build on the spot, some holding that possession by a Catholic for forty years conferred a right to erect a new house, which others denied, arguing that a perpetual and imprescriptible servitude had been created. The inquisitors, in process of time, arrogated to themselves the power to issue licenses to build anew on these sites, and this right they exercised, doubtless, to their own profit, though they might not have found it easy to cite authority for it.[437]
Another temporal penalty may be alluded to as illustrating the unlimited discretion enjoyed by the inquisitors in imposing penance. When, in 1321, the town of Cordes made humble submission for its long-continued insubordination to its bishop and inquisitor, the penance assigned to the community by Bernard Gui and Jean de Beaune was the construction of a chapel of such size as might be ordered, in honor of St. Peter Martyr, St. Cecilia, St. Louis, and St. Dominic, with the statues of those saints in wood or stone above the altar; and, to complete the humiliation of the community, the portal was to be adorned with statues of the bishop and of the two inquisitors, the whole to be finished within two years, under a penalty of five hundred livres Tournois, which was to be doubled for a delay of another two years. Doubtless the people of Cordes built the chapel without delay, but they hesitated at this glorifying of their oppressors, for, twenty-seven years afterwards, in 1348, we find the municipal authorities summoned before the Inquisition of Toulouse and compelled to give pledges that the portal shall forthwith be completed and the inquisitorial effigies be erected.[438]
The severest penance the inquisitor could impose was incarceration. It was, according to the theory of the inquisitors, not a punishment, but a means by which the penitent could obtain, on the bread of tribulation and water of affliction, pardon from God for his sins, while at the same time he was closely supervised to see that he persevered in the right path and was segregated from the rest of the flock, thus removing all danger of infection. Of course it was only used for converts. The defiant heretic who persisted in disobedience, or who pertinaciously refused to confess his heresy and asserted his innocence, could not be admitted to penance, and was handed over to the secular arm.[439]
In the bull Excommunicamus of Gregory IX., in 1229, all who after arrest were converted to the faith through fear of death were ordered to be incarcerated for life, thus to perform appropriate penance. The Council of Toulouse almost simultaneously made the same regulation, and manifested its sense of the real value of the involuntary conversions by adding the caution that they be prevented from corrupting others. The Ravenna decree of Frederic II., in 1332, adopted the same rule and made it settled legal practice. The Council of Arles, in 1234, called attention to the perpetual backsliding of those converted by force, and ordered the bishops to enforce strictly the penance of perpetual prison in all such cases. As yet the relapsed were not considered as hopeless, and were not abandoned to the secular court, or "relaxed," but were similarly imprisoned for life.[440]
The Inquisition at its inception thus found the rule established, and enforced it with the relentless vigor which it manifested in all its functions. It was represented as a special mercy shown to those who had forfeited all claims on human compassion. There were to be no exemptions. The Council of Narbonne, in 1244, specifically declared that, except when special indulgence could be procured from the Holy See, no husband was to be spared on account of his wife, or wife on account of her husband, or parent in consideration of helpless children; neither sickness nor old age should claim mitigation. Every one who did not come forward within the time of grace and confess and denounce his acquaintances was liable to this penance, which in all cases was to be lifelong; but the prevalence of heresy in Languedoc was so great, and the terror inspired by the activity of the inquisitors grew so strong, that those who had allowed the allotted period to elapse flocked in, begging for reconciliation, in such multitudes that the good bishops declare not only that funds for the support of such crowds of prisoners were lacking, but even that it would be impossible to find stones and mortar sufficient to build prisons for them. The inquisitors are therefore instructed to delay incarceration in these cases, unless impenitence, relapse, or flight, is to be apprehended, until the pleasure of the pope can be learned. Apparently Innocent IV. was not disposed to leniency, for in 1246 the Council of Béziers sternly orders the imprisonment of all who have overstayed the time of grace, while counselling commutation when it would entail evident peril of death on parents or children. Imprisonment thus became the usual punishment, except of obstinate heretics, who were burned. In a single sentence of February 19, 1237, at Toulouse, some twenty or thirty penitents are thus condemned, and are ordered to confine themselves in a house until prisons can be built. In a fragment which has been preserved of the register of sentences in the Inquisition of Toulouse from 1246 to 1248, comprising one hundred and ninety-two cases, with the exception of forty-three contumacious absentees, the sentence is invariably imprisonment. Of these, one hundred and twenty-seven are perpetual, six are for ten years, and sixteen for an indefinite period, as may seem expedient to the Church. It apparently was not till a later period that the order of the Council of Narbonne was obeyed, and the sentence always was for life. In the later periods this proportion will not hold good, for all inquisitors were not like the fierce Bernard de Caux, who then ruled the Holy Office in Toulouse; but perpetual imprisonment remained to the last the principal penance inflicted on penitents, although the decrees of Frederic and the canons of the councils of Toulouse and Narbonne were not held to apply to those who abjured heartily after arrest.[441]
In the later sentences which have reached us it is often not easy to guess why one prisoner is incarcerated and another let off with crosses, when the offences enumerated as to each would seem to be indistinguishable. The test between the two probably was one which does not appear on the record. All alike were converts, but he whose conversion appeared to be hearty and spontaneous was considered to be entitled to the easier penance, while the harsher one was inflicted when the conversion seemed to be enforced and the result of fear. Yet how relentlessly a man like Bernard Gui, who represents the better class of inquisitors, could enforce the strict measure of the law is seen in the case of Pierre Raymond Dominique, who had been cited to appear in 1309, had fled and incurred excommunication, had consequently, in 1315, been condemned as a contumacious heretic, and in 1321 had voluntarily come forward and surrendered himself on a promise that his life should be spared. His acts of heresy had not been flagrant, and he pleaded as an excuse for his contumacy his wife and seven children, who would have starved had they been deprived of his labor, but in spite of this he was incarcerated for life. Even the stern Bernard de Caux was not always so merciless. In 1246, we find him, in sentencing Bernard Sabbatier, a relapsed heretic, to perpetual imprisonment, adding that as the culprit's father is a good Catholic and old and sick, the son may remain with him and support him as long as he lives, meanwhile wearing the crosses.[442]
There were two kinds of imprisonment, the milder, or "murus largus," and the harsher, known as "murus strictus" or "durus" or "arctus." All were on bread and water, and the confinement, according to rule, was solitary, each penitent in a separate cell, with no access allowed to him, to prevent his being corrupted or corrupting others; but this could not be strictly enforced, and about 1306 Geoffroi d'Ablis stigmatizes as an abuse the visits of clergy, and laity of both sexes, permitted to prisoners. Husband and wife, however, were allowed access to each other if either or both were imprisoned; and late in the fourteenth century Eymerich agrees that zealous Catholics may be admitted to visit prisoners, but not women and simple folk who might be perverted, for converted prisoners, he adds, are very liable to relapse, and to infect others, and usually end with the stake.[443]
In the milder form, or "murus largus," the prisoners apparently were, if well behaved, allowed to take exercise in the corridors, where sometimes they had opportunities of converse with each other and with the outside world. This privilege was ordered to be given to the aged and infirm by the cardinals who investigated the prison of Carcassonne and took measures to alleviate its rigors. In the harsher confinement, or "murus strictus," the prisoner was thrust into the smallest, darkest, and most noisome of cells, with chains on his feet--in some cases chained to the wall. This penance was inflicted on those whose offences had been conspicuous, or who had perjured themselves by making incomplete confessions, the matter being wholly at the discretion of the inquisitor. I have met with one case, in 1328, of aggravated false-witness, condemned to "murus strictissimus," with chains on both hands and feet. When the culprits were members of a religious order, to avoid scandal the proceedings were usually held in private, and the imprisonment would be ordered to take place in a convent of their own Order. As these buildings, however, usually were provided with cells for the punishment of offenders, this was probably of no great advantage to the victim. In the case of Jeanne, widow of B. de la Tour, a nun of Lespenasse, in 1246, who had committed acts of both Catharan and Waldensian heresy, and had prevaricated in her confession, the sentence was confinement in a separate cell in her own convent, where no one was to enter or see her, her food being pushed in through an opening left for the purpose--in fact, the living tomb known as the "in pace."[444]
I have already alluded to the varying treatment designedly practised in the detentive imprisonment of those who were under trial. When there was no special object to be attained by cruelty, this probably was as mild as could reasonably be expected. From occasional indications in the trials, it would seem that considerable intercourse was allowed with the outside world, as well as between the prisoners themselves, though watchful care was enjoined to prevent communication of any kind which might tend to harden the prisoner against a full confession of his sins.[445]
The prisons themselves were not designed to lighten the penance of confinement. At best the jails of the Middle Ages were frightful abodes of misery. The seigneurs-justiciers and cities obliged to maintain them looked upon the support of prisoners as a heavy charge of which they would gladly relieve themselves. If a debtor was thrust into a dungeon, although the law limited his confinement to forty days and ordered him to be comfortably fed, these prescriptions were customarily eluded, for the worse he was treated the greater effort he would make to release himself. As for criminals, bread and water were their sole diet, and if they perished through neglect and starvation it was a saving of expense. The prisoner who had money and friends could naturally obtain better treatment by liberal payment; but this alleviation was not often to be looked for in the case of heretics whose property had been confiscated, and with whom sympathy was dangerous.[446]
The enormous number of captives resulting from the vigorous operations of the Inquisition in Languedoc had rendered the question as to the duty of building and maintaining prisons one of no little magnitude. It unquestionably rested with the bishops, whose laches in persecuting heresy were only made good by the inquisitors, and the bishops, at the Council of Toulouse, in 1229, had admitted this, only excepting that when the heretic had property those to whom the confiscations inured should provide for him. The burden, however, proved unexpectedly large, and we find them, in the Council of Narbonne, in 1244, trying to shift their responsibility by suggesting that the penitents who, but for the recent papal command, would be sent on crusades, should be utilized in building prisons and furnishing them with necessaries, "lest the prelates be overburdened with the poor converts, and be unable to provide for them on account of their multitude." Two years later, at Béziers, they declared that provision for both construction and maintenance ought to be made by those who profited by the confiscations, to which might be added the fines imposed by the inquisitors, which was not unreasonable; but in 1249 Innocent IV. still asserted that it was their business, and scolded them for not attending to it, and ordered that they be compelled to do it. At length, in 1254, the Council of Albi definitely decided that the holders of confiscated property should make provision for the imprisonment and maintenance of its former owners, and that, when heretics had nothing to confiscate, the cities or lords on whose lands they were captured should be responsible for them, and should be compelled by excommunication to attend to it. Still, the responsibility of the bishops was so self-evident that some zealous inquisitors talked of prosecuting them as fautors of heresy for neglecting to provide prisons, but Gui Foucoix discreetly advises against this, and recommends that such cases should be referred to the Holy See.[447]
The fate of the unfortunate captives was evidently most precarious while their oppressors and despoilers were thus squabbling as to the cost of keeping them in jail and providing them with bread and water. There was evident fitness that those who profited by the enormous confiscations resulting from persecution should at least provide prisons and maintenance for the unhappy victims of fanaticism and greed; and St. Louis, to whom the chief profits came as suzerain of the territories ceded at the Treaty of Paris, recognized in part his responsibility. In 1233 he undertook to provide prisons in Toulouse, Carcassonne, and Béziers. In 1246 he ordered his seneschal to provide for the inquisitors competent prisons in Carcassonne and Béziers, and to furnish daily bread and water for the prisoners. In 1258 we find him ordering his seneschal of Carcassonne to bring to speedy completion those which had been commenced; he assumes that the prelates and barons on whose lands heretics are captured should provide for their maintenance; but, in order to avoid trouble, he is willing that expenditures for this purpose shall be made from the royal funds, to be subsequently collected from the seigneurs. With the death of Alfonse and Jeanne of Toulouse, in 1272, all the territories lapsed to the crown, and, with insignificant exceptions, all the confiscations fell to the king. Henceforth the maintenance of prisons and prisoners, and the wages of jailers and attendants, were defrayed by the crown, except perhaps at Albi, where the bishop shared in the spoils, and seems to have been held to a portion of the expenses. Among the requests of Henri de Chamay, granted in 1329 by Philippe de Valois, is that the inquisitorial prison at Carcassonne shall be repaired by the king, and that all who have shared in the confiscations shall be made to contribute pro rata. Thereupon the seneschal assessed the Count of Foix to the extent of three hundred and two livres eleven sols nine deniers, which the latter refused to pay, and appealed to the king, with what result is not known. From a decision of the Parlement of Paris in 1304 it appears that the royal allowance for maintenance was three deniers per diem for each convicted prisoner, which would seem liberal enough, though Jacques de Polignac, who had charge of the prison at Carcassonne, and who was punished for his frauds, made out his accounts at the rate of eight deniers. This extravagance was not a precedent, and in 1337 we find the accounts still made out at the old rate of three deniers. For the accused detained and awaiting trial the Inquisition itself presumably had to provide. In Italy, where the confiscations, as we shall see, were divided into thirds, the Inquisition was self-supporting. In Naples the royal prisons were employed, and a royal order was required for incarceration.[448]
While the penance prescribed was a diet of bread and water, the Inquisition, with unwonted kindness, did not object to its prisoners receiving from their friends contributions of food, wine, money, and garments, and among its documents are such frequent allusions to this that it may be regarded as an established custom. Collections were made among those secretly inclined to heresy to alleviate the condition of their incarcerated brethren, and it argues much in favor of the disinterested zeal of the persecuted that they were willing to incur the risk attendant on this benevolence, for any interest shown towards these poor wretches exposed them to accusation to fautorship.[449]
The prisons were naturally built with a view to economy of construction and space rather than to the health and comfort of the captives. In fact the papal orders were that they should be constructed of small, dark cells for solitary confinement, only taking care that the "enormis rigor" of the incarceration should not extinguish life. M. Molinier's description of the Tour de l'Inquisition at Carcassonne, which was used as the inquisitorial prison, shows how literally these instructions were obeyed. It was a horrible place, consisting of small cells, deprived of all light and ventilation, where through long years the miserable inmates endured a living death far worse than the short agony of the stake. In these abodes of despair they were completely at the mercy of the jailers and their servants. Complaints were not listened to; if a prisoner alleged violence or ill-treatment his oath was contemptuously refused, while that of the prison officials was received. A glimpse into the discipline of these establishments is afforded by the instructions given, in 1282, by Frère Jean Galande, Inquisitor of Carcassonne, to the jailer Raoul and his wife Bertrande, whose management had been rather lax. Under pain of irrevocable dismissal he is prohibited in future from keeping scriveners or horses in the prison; from borrowing money or accepting gifts from the prisoners; from retaining the money or effects of those who die; from releasing prisoners or allowing them to go beyond the first door, or to eat with him; from employing the servants on any other work or sending them anywhere, or gambling with them, or permitting them to gamble with each other.[450]
Evidently a prisoner who had money could obtain illicit favors from the honest Raoul; but these injunctions make no allusion to one of the most crying abuses which disgraced the establishments--the retention by the jailers of the moneys and provisions placed in their hands by the friends of the imprisoned. Frauds of all kinds naturally grew up among all who were concerned in dealing with these helpless creatures. In 1304 Hugolin de Polignac, the custodian of the royal prison at Carcassonne, was tried on charges of embezzling a part of the king's allowance, of carrying the names of prisoners on the rolls for years after their death, and of retaining the moneys contributed for them by their friends; but the evidence was insufficient to convict him. The cardinals whom Clement V. commissioned soon after to investigate the abuses of the Inquisition of Languedoc intimate broadly the nature of the frauds habitually practised, when they required the new jailers whom they appointed to swear to deliver to each captive without diminution the provisions supplied by the king, as well as those furnished by friends--an intimation confirmed by the decretals of Clement V. Their report shows that they were horror-struck with what they saw. At Carcassonne they took the control of the prison wholly from the inquisitor, Geoffroi d'Ablis, and placed it in the hands of the bishop, ordering the upper cells to be repaired at once, in order that the aged and sick should be transferred to them; at Albi they struck the chains off the prisoners, commanded the cells to be lighted and new and better ones built within a month; at Toulouse things were equally bad. Everywhere there was complaint of lack of food and of beds, as well as of frequent torture. Their measures for reformation consisted in dividing the responsibility between bishop and inquisitor, whose concurrence was requisite to a sentence of imprisonment, and each of whom should appoint a jailer, while each jailer should have a key to each cell, and swear never to speak to a prisoner except in presence of his colleague. This insufficient remedy was adopted by Clement, and can hardly be imagined to have worked much improvement. Bernard Gui bitterly complained of the infamy cast on the Inquisition by the papal assertion of fraud and ill-treatment in the management of its prisons, and he pronounced the new regulations impracticable. Slender as was the restraint which they imposed on the inquisitors, we may feel sure that it was not long submitted to. In a few years Bernard Gui, in his Practica, assumes that the power of imprisoning lies wholly with the inquisitor; he contemptuously cites the Clementine canon by its title only, and proceeds to quote a bull of Clement IV. as if still in force, giving the authority to the inquisitor, and making no mention of the bishop. In fact, before the century was out, Eymerich considered the Clementine canons on this subject not worth inserting in his work, because, as he tells us, they were nowhere observed in consequence of their cost and inconvenience. About 1500, however, Bernardo di Como admits that the Clementine rule may be observed in punitive confinement after sentence, but holds that the inquisitor has sole control of the detentive prisons used before and during trial.[451]
With such jailers it is probably rather to their corruption than to any lack of strength in the buildings that we may attribute the occasional escape of the inmates, which appears to have been by no means an infrequent occurrence. Even those who were confined in chains sometimes effected their liberation. More sufficient, however, as a means of release from the horrors of these foul dungeons was the excessive mortality caused by their filthy and unventilated squalor. Occasionally, as we have seen, the unfortunate were unlucky enough to live through protracted confinement, and there is one case in which a woman was graciously discharged, with crosses, in view of her having been for thirty-three years in the prison of Toulouse. As a rule, however, we may conclude that the expectation of life was very short. No records remain, if any were kept, to show the average term of those condemned to lifelong penance; but in the autos de fé there occur sentences pronounced upon prisoners who had died before their cases were ended, which show how large was the death-rate. These cases were despatched in batches. In the auto of 1310, at Toulouse, there are ten, who had died after confessing their heresy and before receiving sentence; in that of 1319 there are eight. The prison of Carcassonne seems to have been almost as deadly. In the auto of 1325 we find a lot of four similar cases, and in that of 1328 there are five. It is only under these peculiar circumstances that we have any chance of guessing at the deaths which occurred in prison, and from these scattered indications we can assume that the insanitary condition of the jails worked its inevitable result without human interference.[452]
* * * * *
Imprisonment was naturally the most frequent penance inflicted by the inquisitors. In Bernard Gui's Register of Sentences, comprising his operations between 1308 and 1322, there are six hundred and thirty-six condemnations recorded, which may be thus classified:
Delivered to the secular court and burned 40 Bones exhumed and burned 67 Imprisoned 300 Bones exhumed of those who would have been imprisoned 21 Condemned to wear crosses 138 Condemned to perform pilgrimages 16 Banished to Holy Land 1 Fugitives 36 Condemnation of the Talmud 1 Houses to be destroyed 16 --- 636
and this may presumably be taken as a fair measure of the comparative frequency of the several punishments in use.
* * * * *
One peculiarity of the inquisitorial sentence remains to be noted. It always ended with a reservation of power to modify, to mitigate, to increase, and to reimpose at discretion. As early as 1244 the Council of Narbonne instructed the inquisitors always to reserve this power, and it became established as an invariable custom. Even without its formal expression, Innocent IV., in 1245, conferred on the inquisitors, acting with the advice and consent of the bishop of the penitent, authority to modify the penance imposed. The bishop, in fact, usually concurred in these alterations of sentences, but Zanchini informs us that though his assent should be asked, it was not essential, except in the case of clerks. The inquisitor, however, had no power to grant absolute pardons, which was reserved exclusively to the pope. The sin of heresy was so indelible that no authority short of the vicegerent of God could wash it out completely.[453]
This power to mitigate sentences was frequently exercised. It served as a stimulus to the penitents to give evidence by their deportment of the sincerity of their conversion, and, perhaps, also, it was occasionally of benefit as a means of depleting overcrowded jails. Thus in Bernard Gui's Register of Sentences there occur one hundred and nineteen cases of release from prison, with the obligation to wear the crosses, and of these fifty-one were subsequently relieved from the crosses. Besides these latter, there are also eighty-seven cases in which those originally condemned to crosses were permitted to lay them aside. This mercy was not peculiar to the Inquisition of Toulouse. In 1328, in a single sentence, twenty-three persons were released from the prison of Carcassone, their penance being commuted to crosses, pilgrimages, and other observances. What the measure of mercy was in such cases may be guessed from another sentence of commutation at Carcassonne in 1329, liberating ten penitents, among them the Baroness of Montréal. They were required to wear the yellow crosses for life and to perform twenty-one pilgrimages, embracing shrines as distant as Rome, Compostella, Canterbury, and Cologne. They were to hear mass every Sunday and feast-day during life, and present themselves with rods to the officiating priest and receive the discipline in the face of the congregation; and also to accompany all processions and be similarly disciplined at the final station. Existence under such conditions might well be regarded as a doubtful blessing.[454]
These mitigatory sentences, moreover, like the original ones, strictly reserved the power of alteration and reimposition, with or without cause. When the Inquisition once laid hands upon a man it never released its hold, and its utmost mercy was merely a ticket-of-leave. Just as no verdict of acquittal ever was issued, so the Council of Béziers, in 1246, and Innocent IV., in 1247, told the inquisitors that when they liberated a prisoner he was to be warned that the slightest cause of suspicion would lead him to be punished without mercy, and that they must retain the right to incarcerate him again without the formality of a fresh trial or sentence if the interest of the faith required. These conditions were observed in the formularies and enjoined in the manuals of practice. The penitent was made to understand fully that whatever liberty he enjoyed was subject to the arbitrary discretion of his judge, who could recall him to dungeon or fetters at any moment, and in his oath of abjuration he pledged his person and all his property to appear at once whenever he might be summoned. If Bernard Gui in his Formulary gives a draft of pardon for person and property and disabilities of heirs, he adds a caution that it is never, or most rarely, to be used. When some great object was to be attained, such as the capture of a prominent heretic teacher, the inquisitors might stretch their authority and hold out promises of this kind to his disciples to induce them to betray him--promises which, it is pleasant to say, were almost universally spurned. If special penances had been imposed, on their fulfilment the inquisitor, if he saw fit, might declare the penitent to be a man of good character, but this did not alter the reservation in the original sentence. The mercy of the Inquisition did not extend to a pardon, but only to a reprieve, dum bene se gesserit, and the man who had once undergone a sentence never knew at what moment he might not be summoned to hear of its reimposition or even of a harsher one. Once a delinquent, his fate forever after was in the hands of the silent and mysterious judge who need not hear him nor give any reason for his destruction. He lived forever on the verge of ruin, never knowing when the blow might fall, and utterly powerless to avert it. He was always a subject to be watched by the universal police of the Inquisition--the parish priest, the monks, the clergy, nay, the whole population--who were strictly enjoined to report any neglect of penance or suspicious conduct, when he was at once liable to the awful penalties of relapse. Nothing was easier for a secret enemy than to destroy him, safe that his name would never be mentioned. We may pity the victims of the stake and the dungeon, but their fate was scarce harder than that of the multitudes who were the objects of the Inquisition's apparent mercy, but whose existence from that hour was one of endless, hopeless anxiety.[455]
The same implacability manifested itself after death. Allusion has frequently been made to the exhumation of the bones of those who by opportunely dying had seemed to exchange the vengeance of man for that of God, and it is only necessary to mention here that the fate of the dead was harder than that of the living. If he had died after confession and repentance, it is true, his punishment was only that which he would have received if alive, the digging up replacing imprisonment, and his heirs being forced to perform or compound for any lighter penance; but if he had not confessed and there was evidence of heresy he was classed with the impenitent heretics, his remains were delivered to the secular arm, and his property hopelessly confiscated. This will account for the large number of these executions as shown in the records quoted above. If the secular authorities hesitated to perform the task of exhumation, they were coerced with excommunication.[456]
The same spirit pursued the descendants. In the Roman law the crime of treason was pursued with merciless vindictiveness, and its provisions are constantly quoted by the canon lawyers as precedents for the punishment of heresy, with the addition that treason to God is far more heinous than that to an earthly sovereign. It was, perhaps, natural that the churchman, in his eagerness to defend the kingdom of God, should follow and surpass the example of the emperors, and this will explain, if it may not justify, much that is abhorrent in the inquisitorial procedure. In the Code of Justinian, treason is made especially odious by inflicting on the sons disability to hold office and to succeed to collateral estates. By the Council of Toulouse, in 1229, even spontaneously converted heretics were declared ineligible to public office. It was natural, therefore, that Frederic II. should apply the Roman practice to heresy, and should extend its provision to grandchildren. This, like the rest of his legislation, was eagerly adopted and enforced by the Church. Alexander IV., however, in a bull of 1257, repeatedly reissued by his successors, explained that this did not apply in cases where the culprit had made amends and performed penance, and this was still further lightened by Boniface VIII., who removed the incapacity from grandchildren by the female line of those who had died in heresy. In this form it remained permanently in the canon law.[457]
The Inquisition depended so much upon secular officials for assistance that there was some justification in its seeking to prevent those who might be suspected of sympathizing with heresy from holding office in which they could thwart its plans and aid the offender. Yet as there was no prescription of time as to proceedings against the dead, so was there none in invoking disabilities against their descendants, and the records of the Inquisition were an inexhaustible treasury of torment for those who were in any way connected with heresy. No one, in fact, could feel sure that evidence might not at any moment be discovered or manufactured against some long-deceased parent or grandparent, which would ruin his career, and that some industrious searcher into the archives might not find some blot on his genealogical tree. In 1288 Philippe le Bel writes to the Seneschal of Carcassonne that Raymond Vitalis of Avignon is exercising the office of notary in Carcassonne, though his maternal grandfather, Roger Isarn, is said to have been burned for heresy. If this is the fact, the seneschal is ordered to deprive him of the position. In 1292 Guiraud d'Auterive, a sergeant-at-arms of the king, was proceeded against on the same grounds, and we find Guillem de S. Seine, the Inquisitor of Carcassonne, furnishing to the royal procureur evidence that, in 1256, Guiraud's father and mother had confessed to acts of heresy, and that, in 1276, his uncle, Raymond Carbonnel, had been burned as a perfected heretic. In these cases we see the royal power invoked for the dismissal of the official, but in the perfected theory of the Inquisition the inquisitor had the power to deprive of office any one whose father or grandfather had been a heretic or defender of heretics. In order to avoid questions like these, when a penitent had fulfilled his penance, prudent children would take out letters declaratory of the fact, so as to have evidence of capacity to hold office. In special cases the inquisitor had power to relieve descendants of these disabilities, and this was occasionally done; but, like the remission of penance, this relief was only a suspension, liable at any moment to forfeiture on the slightest manifestation of heretical tendencies.[458]
Underlying all these sentences was another on which they, and, indeed, the whole power of the Inquisition, were based in last resort--the sentence of excommunication. Theoretically the censures of the Inquisition might be the same as those of any other ecclesiastics authorized to cut men off from salvation, but the latter had so habitually abused their functions that the anathema, in the mouth of priests who were neither feared nor respected, lost, at times at least, its awe-inspiring authority. The censures of the Inquisition were in the hands of a smaller body of men, selected for their implacable vigor, and no one ever disregarded them with impunity. The secular authorities, moreover, were bound to put to the ban and confiscate the property of any one whom the inquisitor might excommunicate for heresy or fautorship. In fact, as the inquisitors were fond of boasting, their curse was stronger in four ways than that of the secular clergy. They could coerce the temporal government to outlaw the excommunicate; they could force it to confiscate his property; they could condemn any one remaining under excommunication for a year; and they could inflict the major excommunication upon any one communicating with their excommunicates.[459] Thus they enforced obedience to their citations and submission to their penances. Thus they made the secular power execute their sentences; thus they swept aside the statutes that interfered with their proceedings; thus they proved that the kingdom of God which they represented was superior to the kingdoms of earth. Of all excommunications that of the inquisitor worked the speediest vengeance and inspired the sharpest terror, and the boldest shrank from provoking it.