This Pope was, in certain respects, a very slave to the letter of the law. The protests of St. Augustine and many other early Fathers did not affect him in the least. In the beginning, while he was legate, he merely insisted upon the enforcement of the penal code of Innocent III, which did not decree any punishment severer than banishment, but he soon began to regard heresy as a crime similar to treason, and therefore subject to the same penalty, death. Certain ecclesiastics of his court with extremely logical minds, and rulers like Pedro II of Aragon and Frederic II, had reached the same conclusion, even before he did. Finally, in the fourth year of his pontificate, and undoubtedly after mature deliberation, he decided to compel the princes and the podesta to enforce the law condemning heretics to the stake.

He did his utmost to bring this about. He did not forget, however, that the Church could not concern herself in sentences of death. In fact, his law of 1231 decrees that: "Heretics condemned by the Church are to be handed over to the secular courts to receive due punishment (_animadversio debita_)."[1] The emperor Frederic II had the same notion of the distinction between the two powers. His law of 1224 points out carefully that heretics convicted by an ecclesiastical trial are to be burned in the name of the civil authority: _auctoritate nostra ignis judicio concremandus_.[2] The imperial law of 1232 likewise declares that heretics condemned by the Church are to be brought before a secular tribunal to receive the punishment they deserve.[3] This explains why Gregory IX did not believe that in handing over heretics to the secular arm he partic.i.p.ated directly or indirectly in a death sentence.[4] The tribunals of the Inquisition which he established in no way modified this concept of ecclesiastical justice. The Papacy, the guardian of orthodoxy for the universal Church, simply found that the Dominicans and the Franciscans were more docile instruments than the episcopate for the suppresion of heresy. But whether the Inquisition was under the direction of the bishops or the monks, it could have been conducted on the same lines.

[1] _Decretales_, cap. xv, _De Haereticis_, lib. v, t.i.t. vii.

[2] _Mon. Germ., Leges_, sect. iv, vol. ii, p. 126.

[3] Ibid., p. 196.

[4] Lea writes (op. cit., vol. i, p. 536, note): "Gregory IX had no scruple in a.s.serting the duty of the Church to shed the blood of heretics." In a brief of 1234 to the Archbishop of Sens, he says: _Nec enim decuit Apostolicam Sedem, in oculis suis c.u.m Madianita coeunte Judaeo, manum suam a sanguine prohibere, ne si secus ageret non custodire populum Israel ... videretur_. Ripoll, i, 66. This is certainly a serious charge, but the citation he gives implies something altogether different. Lea has been deceived himself, and in turn has misled his readers, by a comparison which he mistook for a doctrinal doc.u.ment. The context, we think, clearly shows that the Pope was making a comparison between the Holy See and the Jewish leader Phinees, who had slain an Israelite and a harlot of Madian, in the very act of their crime (Num. xxv. 6, 7). That does not imply that the Church use the same weapons. Even if the comparison is not a very happy one, still we must not exaggerate its import. The Pope's letter did not even mention the execution of heretics. Ripoll, _Bullarium ord. FF. Praedicatorum_, vol. 1, p. 66.

But, as a matter of fact, it unfortunately changed completely under the direction of the monks. The change effected by them in the ecclesiastical procedure resulted wholly to the detriment of the accused. The safeguards for their defense were in part done away with. A pretense was made to satisfy the demands of justice by requiring that the Inquisitors be prudent and impartial judges. But this made everything depend upon individuals, whereas the law itself should have been just and impartial. In this respect, the criminal procedure of the Inquisition is markedly inferior to the criminal procedure of the Middle Ages.

CHAPTER VI SIXTH PERIOD DEVELOPMENT OF THE INQUISITION INNOCENT IV AND THE USE OF TORTURE

The successors of Gregory IX were not long in perceiving certain defects in the system of the Inquisition. They tried their best to remedy them, although their efforts were not always directed with the view of mitigating its rigor. We will indicate briefly their various decrees pertaining to the tribunals, the penalties and the procedure of the Inquisition.

In appointing the Dominicans and the Franciscans to suppress heresy, Gregory IX did not dream of abolishing the episcopal Inquisition.

This was still occasionally carried on with its rival, whose procedure it finally adopted. Indeed no tribunal of the Inquisition could operate in a diocese without the permission of the Bishop, whom it was supposed to aid. But it was inevitable that the Inquisitors would in time encroach upon the episcopal authority, and relying upon their papal commission proceed to act as independent judges. This abuse frequently attracted the attention of the Popes, who, after some hesitation, finally settled the law on this point.

"If previous orders requiring it" (episcopal concurrence), writes Lea, "had not been treated with contempt, Innocent IV would not have been obliged, in 1254, to reiterate the instructions that no condemnations to death or life imprisonment should be uttered without consulting the Bishops; and in 1255 he enjoined Bishop and Inquisitor to interpret in consultation any obscurities in the laws against heresy, and to administer the lighter penalties of deprivation of office and preferment. This recognition of episcopal jurisdiction was annulled by Alexander IV, who, after some vacillation, in 1257 rendered the Inquisition independent by releasing it from the necessity of consulting with the Bishops even in cases of obstinate and confessed heretics, and this he repeated in 1260. Then there was a reaction. In 1262, Urban IV, in an elaborate code of instructions, formally revived the consultation in all cases involving the death penalty or perpetual imprisonment; and this was repeated by Clement IV in 1265. Either these instructions, however, were revoked in some subsequent enactment, or they soon fell into desuetude, for in 1273, Gregory X, after alluding to the action of Alexander IV in annulling consultation, proceeds to direct that Inquisitors in deciding upon sentences shall proceed in accordance with the counsel of the Bishops or their delegates, so that the episcopal authority might share in decisions of such moment."[1]

[1] Lea, op. cit., p. 335.

This decretal remained henceforth the law. But as the Inquisitors at times seemed to act as if it did not exist, Boniface VIII and Clement IV strengthened it by declaring null and void all grave sentences in which the Bishop had not been consulted.[1] The consultation, however, between the Bishop and Inquisitor could be conducted through delegates. In insisting upon this, the Popes proved that they were anxious to give the sentences of the Inquisition every possible guarantee of perfect justice.

[1] _s.e.xto_, lib. v, t.i.t. ii, cap. 17, _Per hoc_; Clementin. lib v.

t.i.t. iii, cap. i, _Multorum querela_.

Another way in which the Popes labored to render the sentences of the Inquisition just, was the inst.i.tution of experts. As the questions which arose before the tribunals in matters of heresy were often very complex, "it was soon found requisite to a.s.sociate with the Inquisitors in the rendering of sentences men versed in the civil and canon law, which had by this time become an intricate study, requiring the devotion of a lifetime. Accordingly they were empowered to call in experts to deliberate with them over the evidence, and advise with them on the sentence to be rendered."[1]

[1] Lea, op. cit., vol. i. p. 388.

The official records of the sentences of the Inquisition frequently mention the presence of these experts, _periti_ and _boni viri_.

Their number, which varied according to circ.u.mstances, was generally large. At a consultation called by the Inquisitors in January, 1329, at the Bishop's palace in Pamiers, there were thirty-five present, nine of whom were jurisconsults; and at another in September, 1329, there were fifty-one present, twenty of whom were civil lawyers.

"At a comparatively early date, the practice was adopted of allowing a number of culprits to acc.u.mulate, whose fate was determined and announced in a solemn _Sermo_ or _auto-da-fe_. In the final shape which the a.s.sembly of counsellors a.s.sumed, we find it summoned to meet on Fridays, the _Sermo_ always taking place on Sundays. When the number of criminals was large, there was not much time for deliberation in special cases. The a.s.sessors were always to be jurists and Mendicant Friars, selected by the Inquisitor in such numbers as he saw fit. They were severally sworn on the Gospels to secrecy, and to give good and wise counsel, each one according to his conscience, and to the knowledge vouchsafed him by G.o.d. The Inquisitor then read over his summary of each case, sometimes withholding the name of the accused, and they voted the sentence, "Penance at the discretion of the Inquisitor"--"that person is to be imprisoned, or abandoned to the secular arm"--while the Gospels lay on the table to so that our judgment might come from the face of G.o.d, and our eyes might see justice."[1]

[1] Lea, op. cit., vol. i, p. 389.

We have here the beginnings of our modern jury. As a rule, the Inquisitors followed the advice of their counsellors, save when they themselves favored a less severe sentence. The labor of these experts was considerable, and often lasted several days. "A brief summary of each case was submitted to them. Eymeric maintained that the whole case ought to be submitted to them; and that was undoubtedly the common practice. But Pegna, on the other hand, thought it was better to withhold from the a.s.sessors the names of both the witnesses and the prisoners. He declares that this was the common practice of the Inquisition, at least as far as the names were concerned. This was also the practice of the Inquisitors of southern France, as Bernard Gui tells us. The majority of the counsellors received a brief summary of the case, the names being withheld. Only a very few of them were deemed worthy to read the full text of all the interrogatories."[1]

[1] Tanon, op. cit., p. 421.

We can readily see how the _periti_ or _boni viri_, who were called upon to decide the guilt or innocence of the accused from evidence considered in the abstract, without any knowledge of the prisoners'

names or motives, could easily make mistakes. In fact, they did not have data enough to enable them to decide a concrete case. For tribunals are to judge criminals and not crimes, just as physicians treat sick people and not diseases in the abstract. We know that the same disease calls for a different treatment in different individuals; in like manner a crime must be judged with due reference to the mentality of the one Who has committed it. The Inquisition did not seem to understand this.[1]

[1] Even in our day the jury is bound to decide on the merits of the case submitted to it, without regarding the consequences of its verdict. The foreman reminds the jurymen in advance that "they will be false to their oath if, in giving their decision, they are biased by the consideration of the punishment their verdict will entail upon the prisoner."

The a.s.sembly of experts, therefore, inst.i.tuted by the Popes did not obtain the good results that were expected. But we must, at least, in justice admit that the Popes did their utmost to protect the tribunals of the Inquisition from the arbitrary action of individual judges, by requiring the Inquisitors to consult both the _boni viri_ and the Bishops.

Over the various penalties of the Inquisition, the Popes likewise exercised a supervision which was always just and at times most kindly.

The greatest penalties which the Inquisition could inflict were life imprisonment, and abandonment of the prisoner to the secular arm. It is only with regard to the first of these penalties that we see the clemency of both Popes and Councils. Any one who considers the rough manners of this period, must admit that the Church did a great deal to mitigate the excessive cruelty of the medieval prisons.

The Council of Toulouse, in 1229, decreed that repentant heretics "must be imprisoned, in such a way that they could not corrupt others." It also declared that the Bishop was to provide for the prisoners' needs out of their confiscated property. Such measures betoken an earnest desire to safeguard the health, and to a certain degree the liberty of the prisoners. In fact, the doc.u.ments we possess prove that the condemned sometimes enjoyed a great deal of freedom, and were allowed to receive from their friends an additional supply of food, even when the prison fare was ample.

But in many places the prisoners, even before their trial, were treated with great cruelty. "The papal orders were that they (the prisons) should be constructed of small, dark cells for solitary confinement, only taking care that the _enormis rigor_ of the incarceration should not extinguish life."[1] But this last provision was not always carried out. Too often the prisoners were confined in narrow cells full of disease, and totally unfit for human habitation.

The Popes, learning this sad state of affairs, tried to remedy it.

Clement V was particularly zealous in his attempts at prison reform.[2] That he succeeded in bettering, at least for a time, the lot of these unfortunates, in whom he interested himself, cannot be denied.[3]

[1] Lea, op. cit., vol. i, p. 491.

[2] He ordered that the prisons be kept in good condition, that they be looked after by both Bishop and Inquisitor, each of whom was to appoint a jailer who would keep the prison keys, that all provisions sent to the prisoners should be faithfully given them, etc. Cf.

Decretal _Multorum querela_ in Eymeric, _Directorium_, p. 112.

[3] His legates Pierre de la Chapelle and Beranger fr Fredol visited in April, 1306, the prisons of Carca.s.sonne and Albi, changed the jailers, removed the irons from the prisoners, and made others leave the subterranean cells in which they had been confined. Douais, _Doc.u.ments_, vol. ii, p. 304 seq. Cf. Compayre, etudes historiques sur l'Albigeois, pp. 240-245.

If the reforms he decreed were not all carried out, the blame must be laid to the door of those appointed to enforce them. History frees him from all responsibility.

The part played by the Popes, the Councils, and the Inquisitors in the infliction of the death penalty does not appear in so favorable a light. While not directly partic.i.p.ating in the death sentences, they were still very eager for the executions of the heretics they abandoned to the secular arm. This is well attested by both doc.u.ments and facts.

Lucius III, at the Council of Verona in 1184, ordered sovereigns to swear, in the presence of their Bishops, to execute fully and conscientiously the ecclesiastical and civil laws against heresy. If they refused or neglected to do this, they themselves were liable to excommunication and their rebellious cities to interdict.[1]

[1] Decretal _Ad abolendam_, in the Decretals, cap. ix, _De Haereticis_, lib. v, t.i.t. vii. Cf. s.e.xto, lib. v, t.i.t. ii, c. 2. _Ut Officium_; Council of Arles, 1254, can. iii; Council of Beziers, 1246, can. ix.

Innocent IV, in 1252, enacted a law still more severe, insisting on the infliction of the death penalty upon heretics. "When," he says, "heretics condemned by the Bishop, his Vicar, or the Inquisitors, have been abandoned to the secular arm, the podesta or ruler of the city must take charge of them at once, and within five days enforce the laws against them."[1]

[1] Eymeric, _Directorium_, Appendix. p. 8.

This law, or rather the bull _Ad Extirpanda_, which contains it, was to be inscribed in perpetuity in all the local statute books. Any attempt to modify it was a crime, which condemned the offender to perpetual infamy, and a fine enforced by the ban. Moreover, each podesta, at the beginning and end of his term, was required to have this bull read in all places designated by the Bishop and the Inquisitors, and to erase from the statute books all laws to the contrary.

At the same time, Innocent IV issued instructions to the Inquisitors of upper Italy, urging them to have this bull and the edicts of Frederic II inserted in the statutes of the various cities.[1] And to prevent mistakes being made as to which imperial edicts he wished enforced, he repeated these instructions in 1254, and inserted in one of his bulls the cruel laws of Frederic II, viz., the edict of Ravenna, _Commissis n.o.bis_, which decreed the death of obdurate heretics; and the Sicilian law, _Inconsutilem tunicam_, which expressly decreed that such heretics be sent to the stake.

[1] Cf. the bulls _c.u.m adversus, Tunc potissime, Ex Commissis n.o.bis_, etc., in Eymeric, ibid., pp. 9-12.

These decrees remained the law as long as the Inquisition lasted. The bull _Ad Extirpanda_ was, however, slightly modified from time to time. "In 1265, Clement IV again went over it, carefully making some changes, princ.i.p.ally in adding the word 'Inquisitors' in pa.s.sages where Innocent had only designated the Bishops and Friars, thus, showing that the Inquisition had, during the interval, established itself as the recognized instrumentality in the prosecution of heresy, and the next year he repeated Innocent's emphatic order to the Inquisitors to enforce the insertion of his legislation and that of his predecessors upon the statute books everywhere, with the free use of excommunication and interdict."[1]

[1] Lea, op. cit., vol. i, p. 339.

A little later, Nicholas IV, who during his short pontificate (1288-1292), greatly favored the Inquisition in its work, re-enacted the bulls of Innocent IV and Clement IV, and ordered the enforcement of the laws of Frederic II, lest, perchance, they might fall into desuetude.[1]

[1] _Registers_, published by Langlois, no. 4253.

It is therefore proved beyond question that the Church, in the person of the Popes, used every means at her disposal, especially excommunication, to compel the State to enforce the infliction of the death penalty upon heretics. This excommunication, moreover, was all the more dreaded, because, according to the canons, the one excommunicated, unless absolved front the censure, was regarded as a heretic himself within a year's time, and was liable therefore to the death penalty.[1] The princes of the day, therefore, had no other way of escaping this penalty, except by faithfully carrying out the sentence of the Church.