Chapter II: Civil Tolerance Down to the Sixteenth Century

I. Successive Policies in the Matter of

Heresy.

Summary : Intolerance of the Christian Emperors.—This is real, as are their encroachments on the domain of religion.—But these Princes are excusable, and their acts must not be exaggerated.—Sketch of the imperial policy in the matter of heresy.—Attitude of the Popes. —Successive phases of under the barbarian Kings, and under Charlemagne.—Intervention of the people.— The principle of repression introduced into legislation in the thirteenth century.—Obstinate and relapsed heretics incur capital punishment, even death by burning.—Organization of the Inquisition.—This law governs Europe until the sixteenth century.

As heirs of an unrestrained despotism, the Roman Emperors did not at their baptism lay aside the traditions of absolutism to which the world had become accustomed. Without a miracle such as God is not in the habit of working, they could not at once solve with any certainty a question which their predecessors had never even put to themselves —that of the limits by which their power was bounded. For the first time two autonomous societies, religious and political society, had to exist on the same territory. Many encroachments on the domain of religion must have been committed unconsciously, and the complete powerlessness of the victim made even the thought of protest impossible. It is true that dogmatic definitions and the sacred functions of the Church were left to the Bishops ; but for everything else, for all that concerns the exterior discipline of the Church, all right was arrogated by the Christian Emperor : the right of banishing Arian or Catholic Bishops according to his own will,¹ the right of assembling Councils, of legislating for priests and monks, of imposing religious uniformity ; and such acts as these surprised no one.

¹ “ Naturally,” writes Mommsen, " the divergence of religious opinions among the different Sovereigns and the good pleasure of the monarch gave rise to much that was arbitrary, and to numerous variations in fixing the line of demarcation between true and false Catholics ” (Roman Penal Law, translated by Duquesne, t. 2, p. 312).

Unless we make allowance for the circumstances and customs of the time, we shall be unjust to the Princes, who thought they were acting within their rights, and also to the Church, which permitted their acts ; and we shall not be able rightly to apportion the responsibility. The objections thus made will have only the value of anachronisms. But when we deal with excesses and encroachments, we must not exaggerate or darken the reality. The pagan Emperors had hunted down sorcerers and magicians with the utmost severity.² This policy was not inspired by any zeal for orthodoxy, nor can the baptized Emperors who continued it be charged with religious fanaticism. Diocletian had already condemned the Manichaeans to the flames ; and if still later they were under various names the objects of special enactments,¹ these exceptional laws were directed less against heresy than against the antisocial tendencies of the sect. And we should be reluctant to transform into martyrs of free thought the Priscillianists and Donatists who fell under the sword of justice.² Neither Leo the Great, who mentioned with approval certain condemnations of the Priscillianists, nor those Bishops³ who, wearied of the Donatist excesses, brought them up before the magistrates, can be charged with intolerance, even in the most modern sense of the word. And Charles Lea is not justified in writing in this connection that the Church by their act was definitely committed to the extirpation of heresy by all means whatsoever.⁴ Even at the present day it is well to remember this : disturbers of the public peace and common criminals must not be allowed to find an assurance of impunity in heresy or irreligion.

² This severity had its influence on the argument of the apologetical treatises, and partly explains the silence maintained on the argument of miracles at that time ; it was necessary to guard against any suspicion of magic.

¹ The legislation seems to have been milder under Arcadius, Honorius, and Theodosius. The law 4 De Hæreticis (i. 5) of these Emperors omits the extreme penalty ; but the law 2. eodem, thus sums up a Constitution of Justinian : “ [Wherever Manichaeans are found, they are to be condemned to death].”

² These heresies have a clearly marked antisocial character. “ [We persecute Manichaean men or Manichaean women or Donatists with most deserved severity] ” (1. 4, Princ. De Hæreticis, i. 5).

³ The Bishops, indeed, did not desire any sanguinary measures of repression.

⁴ History of the Inquisition in the Middle Ages, vol. i., p. 215. This book imposes upon many persons by its confused mass of apparent erudition, but it is as deficient in synthesis as in impartiality and accuracy. See the criticism of M. Paul Fournier in the Revue d’Histoire Eccl., t. 3 (1901), pp. 708-719. M. Kurth also does not hesitate to condemn it as unfair and prejudiced. For instance, p. 215 and the following pages of the first volume, full of references as they are, so entirely misrepresent the opinions of various Fathers, the action of the Emperors, and the influence exercised by the Church on the sanguinary repression of heresy, as to render them unrecognizable. See Maillet-Hanquet, op. cit., pp. 20-26, and the authors quoted below.

If we compare the texts of laws with what history tells us of their application, we shall draw these conclusions as to the official repression of heresy by the Christian Emperors of Rome and Byzantium : (1) The Christian Emperors like Constantine desired to unite the Empire and religion ; they saw in religious unity a guarantee of political unity ; orthodoxy was expected to strengthen patriotism.¹ (2) Yet they had no desire to obtain conversions to the faith by force.² (3) They were more severe against proselytism and outward manifestation than against the heresy itself ;³ the proscription was specially directed against certain sects which had become a real danger to the public peace.⁴ (4) Their laws were more terrible in their texts than in their effects.¹ (5) These laws being enacted motu proprio by the prince, no responsibility attaches to the Church.

¹ “ Die Grundsätze auf denen sie (die Strafgesetzgebung) beruht, sind klar ; sie sind gegeben . . . durch die herr- schende Ueberzeugung dass in der Einheit des Glaubens eine Schutzwehr des Reichs liege ” (Loening, Geschichte des deutschen Kirchenrechts, i. 96). See also Diehl, Justinien, L’Œuvre Religieuse).

² “ The Roman State constantly refrained from the use of coercion to make converts, on the ground that conversions obtained by such means would be merely superficial ” (Mommsen, Roman Public Law, translated by Duquesne, vol. ii., pp. 313, 314).

³ Cf. 1. 8, § 5, C. i. 5 ; Theodosian Code, xvi. 5, c. 34, 36, 51, 56, 58, 63, 66. Cf. Loening, op. cit., t. i., p. 99. The threat against proselytism dates from Theodosius (Theodosian Code, xvi. 5, c. 3). It was afterwards extended to the holding of public assemblies (cc. 51 and 66, ibid.).

⁴ “ Einzelne Sekten waren in der That eine Gefahr für den öffentlichen Frieden geworden ” (Loening, t. i., p. 68).

¹ Cf. Loening, i. 99. Mommsen similarly recognizes that Imperial Rome confined itself to restricting the patrimonial rights of the heretic—his free choice of a residence, and his capacity to hold public office. “ In general,” he says (op. cit., t. 2, p. 315), “ legislation took no other measures against heretics, though there have frequently been penalties prescribed against particular sects.” He mentions in a note heavy pecuniary fines, confiscations, banishment, and even the penalty of death. But for this last he refers to the Theodosian Code, xvi. 5. 7. 1., in which this penalty is not mentioned. No doubt he meant to quote xvi. 5. 9. 1., in which this penalty is directed, not against heretics in general, but against certain Manichæans who called themselves Encratitæ (continent). MM. Maillet-Hanquet are wrong in speaking of this as a general law renewed by Arcadius. He only ratified the previously existing laws, without specifically mentioning any ; and, according to the testimony of Sozomenus, Theodosius intended not to punish, but to terrify. So Socrates does not even mention those laws of Theodosius of which Sozomenus says that they contained heavy penalties (χαλεπὰς τιμωρίας) against heresy. See C. Theod., xvi. 5. 25; Sozomen., Hist. Eccl., 7, 12 (M.P.G., t. 67, cols. 1445, 1446) ; Socrates, 5, 10 (M.P.G., t. 67, cols. 593, 594). The picture of the Roman legislation against heresy is much less dark in the learned works of Hinschius, Mommsen, Loening, than in certain French authors—e.g., Tanon, Histoire des Tribunaux de l’Inquisition en France ; Paris, 1893.

It is true that the Popes, from the beginning, approved of the protection which the Christian Emperors offered to the Church for the maintenance of its unity ; the letters which they wrote to obtain the removal of Bishops or Abbots who favoured schism or heresy² can neither surprise nor scandalize anyone ; they prove simply the care of the pastor for the peace of the Church and the safety of his flock, but they did not demand the infliction of torture in the name of religion. M. de Cauzons¹ considers it a plausible conjecture that “ if the sentence of death was so rarely passed for religious offences, the fact is due to the influence of the ecclesiastical members of the Imperial Council.”

² E.g., St. Celestine, Ep. 22 (M.P.L., t. 50, cols. 540, 541). He acted in the interest of peace and for the preservation of others. See also Ep. 19 (M., ibid., cols. 511, 512). So also St. Leo the Great, Ep. 84 (M.P.L., t. 54, col. 922). But see Ep. 45 (M., ibid., col. 833) on the violent acts of the heretics.

¹ Alias the Abbé Thomas, Histoire de l’Inquisition en France, t. 1, p. 186.

MM. Maillet-Hanquet, though they exaggerate to some extent the severity of the Roman laws, describe in these terms the attitude of the religious authorities : “ If they thought it necessary to excommunicate heretics and expel them from the pale of the Church, if they called in certain cases for the interference of the civil power, they do not appear to have acted for the purpose of procuring the enactment of laws condemning heretics to death ; they seem rather to have been entirely opposed to such legislation. Nevertheless, when the laws had been finally passed against the Manichæans, they did not think it necessary to raise their voices publicly against them. As they considered the Manichæans as constituting a fundamental danger to society, they could not refuse to society the right to protect itself.”²

² Op. cit., p. 25.

If the Roman Empire classified heresy among offences against the State, [among public crimes], as was made clear by Frederic II., the Merovingians cared much less for religious unity,³ and the Roman law of the Visigoths⁴ reproduces only the penalties prescribed against certain sects—the Manichæans, Eunomeans, and Montanists. Charlemagne was actuated by political motives when he promulgated the celebrated capitulary, which, as we have already seen, was condemned by Alcuin, because it required baptism under pain of death.¹ With scarcely any other exception, the Carlovingian legislation was opposed to the penalty of death, which was not even inflicted for murder, " and this was entirely owing to the influence of the Church, thus showing how she preserved to the beginning of the Middle Ages that spirit of clemency by which she was distinguished in the first days of Christianity.”²

³ Loening, op. cit., ii., pp. 46, 48, 53.

⁴ Ibid., ii. 43.

¹ Capitul. reg. Franc., i., p. 69, n. 26, c. 8 (Mon. Germ. Hist., t. 1, pp. 48-50).

² Maillet-Hanquet, op. cit., pp. 28, 29. Relying on a text of the celebrated Hincmar of Rheims, these authors remark that there were already declared opponents of capital punishment, who disputed the right even of the Prince to draw the sword.

Antisocial sects, which remind us in some respects³ of the Manichæans⁴ and the Donatists,⁵ were the scourge of the eleventh and twelfth centuries. That of the Catharists⁶ especially astonished men, equally by its absurdity, its zeal, and its success. Lea says :¹ “ Had Catharism become dominant, or even had it been allowed to exist on equal terms, its influence could not have failed to become disastrous. . . . The conscientious belief in such a creed could only lead man back in time to his original condition of savagism.”² A contemporary author compares the number of such sectarians to the number of grains of sand on the seashore.³ The danger which they caused to society rekindled the fires lighted against the Manichæans and persons who practised witchcraft. Sometimes the repression was regularly ordered by the public authorities ; sometimes, and more frequently, it was the act of the enraged populace, who demanded the execution of the disturbers of their peace, and who, afraid of the clemency of the priests, invaded the prisons in the same fashion as a lynching crowd in modern America, and thus drew down upon themselves the thunders of the Church.¹

³ We do not wish to exaggerate the resemblance, or to settle the delicate question of the relation between the sects, or whether one was the descendant of the other.

⁴ By their dualism, their syncretism, and their effort to obtain universal domination.

⁵ By their rigorist and revolutionary schismatic fanaticism. They made the efficacy of the sacraments dependent upon the personal holiness of the minister.

⁶ Catharists, or pure persons. In the Middle Ages, “ heretics ” meant the Catharists ; and this name, sometimes corrupted into Pathari or Gazari, has produced the Dutch word Ketter, and the German Ketzer. The Catharist Church, the only pure Church, (as they professed) and the only one opposed to the wicked and decadent Church of Rome, included (1) the perfect ones, who practised an antisocial asceticism, which obliged them to break family ties and live a life of rigorous poverty and solitude ; and (2) simple believers, who were allowed to marry and possess property. The latter, if they wished to be saved, were bound, at least at the hour of death, to receive from one of the perfect the consolamentum, or absolution, which effaced their sins ; but in case of recovery they were constrained to a rigorous observance of the rules. By this ceremony they were admitted into the Church, of which, until that time, they had been merely catechumens.

¹ Op. cit., t. 1, p. 106.

² This judgment is independent of any opinion which may be formed on their mode of life, and is justified by their asceticism alone, which M. Charles Molinier admits to have been opposed to the happiness and development of the human race (Ch. Molinier, L’Église et la Société Cathares, in the Revue Historique, 1907, t. 94 and 95, p. 290).

³ William of Newburgh, quoted by Maillet-Hanquet, p. 29. Almost all the documents relating to the Catharist heresy come from Catholic sources. M. Jean Guiraud very forcibly rebukes those authors who refuse on this ground to accept the information so given (Cartulaire de N. D. de Prouille, Preface, pp. xx-xxii). M. Molinier considers this language exaggerated. However, his own calculations lead him to the conclusion that there were 3,000,000 to 6,000,000 believers, of whom 2,000,000 to 4,000,000 were in Italy, 200,000 to 400,000 in France, 700,000 or 800,000 in the East, and about 3,100 perfect ones (see the articles quoted, t. 95, pp. 278, 279).

¹ Some inhabitants of Cambrai had burnt a heretic. Gregory VII., by his letter of March 25, 1077, ordered Godefroi, Bishop of Paris, to hold an inquiry, and excommunicate the authors and accomplices of the crime. “ [If you shall have ascertained that they have stretched forth impious hands to such great impiety] ” (Mon. Germ. Hist. Script., 7, p. 540, n. 31).

Lea himself, whose testimony on this point is very valuable, gives this example : In 1114 the Bishop of Rheims, who had convicted some heretics by the ordeal of water, consulted the Council of Beauvais as to the punishment to be inflicted ; in his absence, the people, fearing the lenience of the Bishops, broke open the prison, and burned the prisoners.² “ These struggles,” observes M. Julien Havet, “ between an over-zealous people and a more tolerant clergy were not uncommon at that period.”³ It is well known how energetically Wazon, the Bishop of Liège, whose voice was listened to even at Rome, pleaded with the Episcopate the cause of mercy.

² Op. cit., vol. i., p. 351. For “ Rheims ” we must read “ Soissons.” The passage is borrowed from Guiberti Abbatis de Novigente Monodiarum, 1. 3, c. 17.

³ L’hérésie et le Bras Séculier au Moyen Age jusqu’au XIIIe Siècle ; from Bibliothèque de l’Ecole de Chartes, 1880, or Œuvres, t. 2, 117.

This resistance to exterior severity, however, slackened by degrees, and ceased altogether at the end of the twelfth century. The Bishops yielded to the current of public opinion, which was that of the people and the Prince, and which was explained by the antisocial character of the prevailing errors. Moreover, the least scrupulous and least pious monarchs, the declared enemies of the Popes, made themselves conspicuous by an animosity which may have been inspired by various motives—by genuine zeal for religion and social order, by political duplicity, or even by cupidity, for certain confiscations came in very conveniently to fill the coffers of the State.

In short, in the thirteenth century the policy of repression prevailed everywhere ; but it must be remembered, as we shall have occasion to point out later on, that the heresy so repressed was that of obstinate or relapsed persons.

Princes and people, united in their desire to repress heretical apostasy, agreed in inflicting on obstinate or relapsed heretics the penalty of death ; and the Emperor who first made it a rule of common law, Frederic II. (Constitution of 1224), laid down that this should be death by burning.¹ But custom permitted a relapsed person who repented to escape this punishment, and in many countries heresiarchs were practically the only persons to be delivered alive to the flames (see Pirhing in 1. 5, t. 7, n. 92 ; he quotes Farinacius).

¹ This form of execution had passed from the Roman law into the barbarian codes. In the summary executions of the twelfth century the people more than once had recourse to it. The Chronicon Universale Anonymi Laudu- nensis (edition Cartellieri-Stecheli, p. 29) records that in 1204 several persons, convicted of heresy in presence of the Archbishop of Rheims at Braine-sur-Nesle (Aisne), were condemned to the stake by Count Robert, Countess Yolande, and numerous assessors. The heretics of the twelfth and thirteenth centuries were connected with the Manichaean sects whose leaders had been burnt under Diocletian. Naturally, the punishment of death by burning commended itself to the German Emperor, who professed to follow the traditions of the great Roman Empire. " [By our authority],” said Frederic II., “ [to be condemned by the judgment of fire] ” (March, 1224, Mon. Germ. Hist. Legum., t. 2, p. 252). The old Canonists, yielding to the necessity of proving everything by Scripture as well as reason, found their warrant in St. John xv. 6 : “If any one abide not in Me, he shall be cast forth as a branch, and shall wither, and they shall gather him up and cast him into the fire, and he shall be burned.”

Such is the law which governed Europe until the time of the Reformation, and even after that time was retained on the statute books of various countries, either in its original form or as amended by later edicts of partial toleration, and it did not disappear entirely until the end of the eighteenth century. It must not, however, be concluded from this that there was a relentless or uninterrupted persecution of heresy, real or pretended, during six hundred years. Even those books which profess to give a dramatic representation of the war against heresy show us clearly, if we read with attention, that the treatment of heretics varied according to time and place. The severity shown in Spain, especially after the time of Ferdinand and Isabella— that is to say, from the last quarter of the fifteenth century—was never known in Portugal. In France the Inquisition was most energetic in the thirteenth century, and then only for the purpose of getting rid of the Catharists and the Albigenses. Before Charles V. and Philip II. the struggle against religious error occupies but little place in the national history of Belgium. The repression was more moderate in Italy, principally in Central Italy and the Papal States, and everywhere short outbursts of violence were succeeded by long periods of tranquillity.

The measures adopted against heresy by the Emperors of Rome and Byzantium, and the appeals made by the Church to the secular arm during their time, call for no special remark, and the encroachments of the secular authorities on the spiritual domain are explained by a confusion of powers very natural at that period. The Church asked only for a twofold protection—protection for her ministers and the faithful against those who were criminals under the common law ; protection for her doctrine against those who threatened the unity of Christian society. That protection, which the Church desired to have free from bloodshed, cannot in principle be denied her, without refusing to acknowledge her right to teach or her social constitution, without repudiating even the defence of morality. In short, she justifies herself by the reasons which refute the theory of absolute tolerance of which we shall speak in the following chapters. It is unnecessary to say more at present on the subject.

The severe laws enacted in the Middle Ages against heretics, the capital sentences passed upon them, and the procedure by which they were condemned, raise questions which we cannot pass over in silence. It is of special interest to know what heretics were prosecuted to the death, and on what grounds they became liable to the extreme penalty of the law. In spite of all that has been already written on the subject, the reader will still look forward to the explanation we have to offer of the institution whose name is always connected with the sanguinary repression of heresy in the Middle Ages—namely, the Inquisition. We will endeavour to satisfy him, first disposing of the question of form and procedure.

II. The Inquisition.

Summary : The Inquisition was not a single institution, and it had no monopoly of the severity exercised against heretics.—Origin and genesis of the Inquisition.—Etymological definition.—Its procedure and methods.—Punishments inflicted by the Inquisitors.— The surrender of criminals to the secular arm.—Intercession of the ecclesiastical judge.—Definition of the Inquisition.—Objections made to its procedure.— These objections critically examined.—Had the accused person anyone to defend him ?—The interrogatory.—The torture.—The intervention of the Church, and especially the duty imposed upon the ecclesiastical judge of appealing for mercy.

It is inexact to speak of an Inquisition, since the inquisitions in different countries differed in their origin, which was sometimes political or national, as in Spain ;¹ in their procedure, which was influenced by the constitution of the States ;² and in their action. This, again, differed at different periods. Outside Spain the Inquisition was principally employed against the Catharists.

¹ We speak of the Inquisition which, at the request of Isabella, was canonically erected by a Bull of Sixtus IV. on November 1, 1478. Without disputing the ecclesiastical character of the institution, we call it national, because its establishment was demanded by motives of patriotism ; and political, because it at once became a State tribunal. See Landrieux, L’Inquisition, pp. 111, 130.

² Liège offers in this respect a peculiarity probably unique in history. The citizen suspected of heresy had first to be convicted par loy et franchise—that is, by the Court of Aldermen—and then sent by them, as a heretic, before the ecclesiastical judges (Lonchay, Les Édits des Princes-Évêques de Liège en Matière d’Hérésie, p. 34).

The Inquisition is not responsible for all the severities exercised against heretics. There was no question of it in the fifth century in the proceedings against the Manichæans and the Donatists, nor did it exist when Alphonsus II., King of Aragon, in 1194 began a persecution against the Waldensians, which became sanguinary under his son, Peter II., in 1197. In England the Inquisition, properly so called, exercised its functions only in the case of the Templars ; nevertheless, the Statute of 1400, De hæretico comburendo, fixed the penalty of death as the normal punishment of heresy.¹ In France the Inquisition was speedily supplanted by the Parliament ;² in the Low Countries the great severities were the work of an Inquisition irregularly constituted by Charles V.³

¹ Vacandard, L’Inquisition, p. 265.

² As early as 1331, a Decree of Parliament declared that the tribunal of the Inquisition was a royal jurisdiction: “ [And it was declared that the court of the inquisition was a royal court, not an ecclesiastical one] ” (quoted by Tanon, op. cit., p. 550). He adds that from that time commenced the decadence of that institution, the last tribunal of which—that of Toulouse—was suppressed under Louis XIV.

³ See Pirenne, Histoire de Belgique, t. 3, pp. 335, 336.

With these reservations, we proceed to consider the different points which require elucidation. First as to the historical origin of the Inquisition. There is no great difficulty about the date of its first establishment, as most authorities agree in fixing it approximately at A.D. 1231.

There is much more discussion as to the genesis of the institution. Mgr. Douais sees in it an episode of the struggle between the clergy and the Empire. To frustrate the usurping designs which Frederic II. concealed under a show of orthodoxy, Gregory IX. imposed upon him a pontifical judge, by whom he preserved to the Church her prerogatives in matters of faith and her spiritual autonomy. As is usual in the case of wisely-established and progressive institutions, the Inquisition survived the occasion which called it into being, and from the countries in which it was first constituted was extended into the greater part of Christendom. M. Jordan, in a series of exhaustive articles published in the Annales de Philosophie Chrétienne,¹ vigorously combats the opinions of the learned Bishop of Beauvais, and declares that they are without foundation. The documents exchanged between the Pope and the Emperor make no charge, and express no fears, of usurpation on the Emperor’s part in the matter of heresy, it is true ; but this fact does not strengthen the argument of M. Jordan, for we can understand the reasons for such reticence in diplomatic correspondence. On the other hand, the explanation of Mgr. Douais fits in very well with the general purpose of the appointment of pontifical delegates— viz., to affirm and maintain the authority of the Pope whom they represented.

¹ June to August, 1907, and following volumes : La Responsabilité de l’Eglise dans la Répression de l’Hérésie au Moyen Age.

It is certain also that the secular Princes more than once claimed exclusive cognizance of the crime of heresy, and M. Lonchay remarks¹ that numerous conflicts arose on this point between the two authorities, and M. Pirenne relates how as late as the sixteenth century Adrian VI. treated Charles V. exactly as, according to Mgr. Douais, Gregory IX. treated Frederic II.² The temptation must have been much stronger for the Emperors of Germany, as they claimed to be the successors of the Roman Emperors ; and in prescribing punishments for heretics, Frederic II. took care to lay stress on the fact that he acted on his own authority. See the whole of his Constitution Commissi nobis, at the commencement of which he asserts that he holds from God the Imperial power and a material sword, the exercise of which is distinct from sacerdotal functions : “ [which we exercise separately from the priesthood].”³

¹ Les Édits des Princes-Évêques de Liège en Matière d’Hérésie, p. 34.

² Histoire de Belgique, t. 3, p. 336. “ The Pope did not intend to abdicate in favour of the State, or to give up to the Emperor and his agents the defence of the Faith. On June 1, 1523, to the great disgust of Margaret of Austria and Charles V., a Bull of Adrian VI. nominated Van der Hulst, although a layman, and by special derogation of Canon Law, [universal and general inquisitor and investigator] in the Burgundian provinces. Thenceforward the Commissary of the Emperor became Pontifical Inquisitor, and ceased to be the agent of the Prince.”

³ In the Constitution of 1224, the heretic is burned by his authority ([to be burned by our authority]).

We would not then refuse to the explanation of Mgr. Douais the value that the prelate attaches to it himself—namely, that of a probable and plausible conjecture—but though the fear of Imperial encroachment perhaps served as the proximate occasion, there were other reasons for giving to an Inquisitor delegated by the Pope a regular position by the side of the Diocesan Bishop. We may point to that desire for energetic action against heresy which is so clearly manifested in the Pontifical and Conciliar Acts of the twelfth century ; to the insufficiency of episcopal action,¹ which was too local and too dissimilar, and sometimes too wanting in independence to carry great weight ; and, finally, to the centralizing and organizing spirit of Gregory IX., of which his codification of Canon Law gives sufficient evidence.

¹ This reason is expressly alleged by Gregory IX., when, on April 13, 1233, he informs the Bishops of France that he has invested the Dominicans with the functions of Inquisitors in that country and the neighbouring provinces.

Etymologically, the Inquisition denotes not so much a judicial tribunal as a criminal procedure in which the magistrate takes the initiative, and proceeds to hold an inquiry without waiting for a private citizen to take upon himself, as he was formerly entitled to do, the responsibility of the accusation. In criminal matters the procedure followed by the Inquisition now universally prevails.²

² We do not understand M. Vacandard’s preference (L’Inquisition, p. 275) for the accusatio, which is now universally given up.

As an institution, the Inquisition shows us the action taken by the co-operation of the Church and the State against heresy.

The trial proceeded at first before the ecclesiastical magistrate or Inquisitor, permanently delegated as judge by the Pope, and acting as assessor to the Bishop, who still preserved among his other prerogatives that of judging of religious error. After various changes in the law, it was finally settled that in grave cases, unless the Inquisitor concurred with the Bishop or his representative, there could be no conviction.¹ The proceedings were secret. The accused knew the charges that were made against him, but did not know his accusers, and was not, as a rule, confronted with the witnesses.

¹ See the Constitution of Gregory X. of 1273. Lea deals with these changes in the law (op. cit., t. 1, p. 375).

By way of compensation a custom was established, and even sanctioned by common law, of summoning a number of men called boni viri, or periti, whose duty it was, after being sworn on the Gospels to secrecy and impartiality, to express an opinion as to the honesty of the witnesses, to check the depositions, and even to advise as to the sentence to be passed—penance at the discretion of the Inquisitor, imprisonment, or delivery to the secular arm. The opinion of these jurors, as they would be called nowadays, was not binding on the Inquisitors, who were, however, in the habit of accepting it, and sometimes of mitigating the sentence suggested.²

² Tanon, op. cit., pp. 422, 423.

The Inquisitor, on arriving in a country with his credentials duly verified, commenced by publishing in the Churches a time of grace for all voluntary retractions. When this time had elapsed, the denunciations received led to a preliminary judicial information, which resulted in a certain number of accused persons being brought before the Court. Every accused person was at least suspected of heresy, if not a notorious heretic ; and some prima facie evidence of guilt was required before special proceedings could be instituted against any person.

The first part of the proceedings was naturally directed to establishing the fact of heresy.

This point being established, the accused was invited to retract his errors ; and if he refused to do so, the second stage commenced,¹ which often lasted a long time, sometimes for months, or even more than a year. During that time the judge endeavoured by exhortation, by advice, or even by detention in custody, to obtain the conversion or abjuration of the accused persons.² In most cases he succeeded, and the heretic escaped on the first occasion from all civil punishment. Sometimes, however, in consequence of the gravity of the offence, the delay of the accused person in retracting his error, or the fact that the judge had good reason for not believing in the sincerity of his retraction, it was considered necessary, even after the abjuration, to impose one of the customary penalties, such as wearing a cross marked upon the clothing, a pilgrimage, fine, or imprisonment ; the imprisonment might even be perpetual.

¹ We cannot refrain from comparing this procedure with that of certain Roman Emperors, like Decius, who issued edicts of persecution against the Christians. There also we find a general invitation to sacrifice to the gods, a convenient time of grace, and subsequently persistent pressure put upon the victims to induce them to apostatize.

² “ A way of escape is still open to them (heretics), and the judge does his best in all sincerity to induce them to make use of it. He will endeavour to obtain their abjuration, and will sometimes succeed without any difficulty. Sometimes, on the contrary, and especially when the accused person is a highly educated man and capable of carrying on a discussion, a real theological tournament is commenced, which may last a long time. The Inquisitor listens with patience to his arguments, and replies to them ; tries to clear up his doubts ; contests his authorities, or quotes others ; is careful not to press him unduly, and to give him time for reflection. . . . The Bishop, or the Inquisitor, or, failing them, a commission of ten or twelve theologians, endeavour to persuade the heretic. If he resists, he is not at once delivered to the secular arm, even when in his desire for martyrdom he himself demands it. He is kept in prison six months or a year, if necessary, leniency alternating with severity, threats with promises.” (Jordan, Annales de Phil., ix., pp. 46, 47).

The judge in these cases, contrary to the practice in other trials, had the power to commute the sentence. A distinction was, indeed, made between the simple and the qualified (irremissibiter) condemnation to perpetual imprisonment. If the condemned person gave satisfaction, the simple sentence was remitted after three years, the other after eight years.¹

¹ Cf. Reiffenstuel, in 1. 5, t. 7, n. 332.

For what purpose were these penalties inflicted ? Undoubtedly for the good of the soul, which required to be strengthened in its good resolutions and purified by expiatory penance ; but also for the good of the Christian community and the removal of all danger of contagion.² If the guilty person remained obstinate, or if he relapsed after recantation, the ecclesiastical judge recorded the fact of his obstinacy or relapse, and sentenced him as an obstinate or relapsed heretic to be delivered over to the secular arm to be treated according to the rigour of the law.¹

² M. Jordan denies to these sentences the character of penalties, properly so called, and sees in them nothing but works of satisfaction. We think it more accurate to refer them to the penal system, which is suitable to religious society. This system has a twofold purpose : the good of the soul that has sinned, by amendment and expiation ; and the preservation of innocent persons. The Councils of the twelfth century laid special stress on the twofold character of the penalties they inflicted. Thus, the Council of Rheims, 1157—“ [Thus neither shall a place of penance be lacking to them, and others shall be recalled from their detestable imitation] ” (Mansi, 21, col. 843)—and that of Tours : “ [That, with even the consolation of humane treatment having been lost, they may be compelled to recover their senses from the error of their way] ” (Harduin, vi. 2, col. 1597). It is enough to read the wording of the sentences in order to be convinced that the condemnation was penal as well as penitential. The following are some of the considerations which precede the condemnation of a recanting heretic : “ [Indeed, since it is manifestly very unworthy to avenge the injuries of temporal lords while calmly enduring injuries to the Lord of heaven and Creator of all, since it is much more serious to offend eternal majesty than temporal majesty, and so that he himself, the one who has mercy on sinners, may have mercy on you, and so that you may be an example to others, and so that crimes may not remain unpunished, and so that you may be made more cautious in the future, and so that you may be rendered not more inclined but less disposed to commit the aforesaid and any other unlawful things] ” (Eymeric, Directorium, part 3, n. 194, p. 544). Corresponding forms are given for other and less grave cases (n. 165, p. 523 ; n. 170, p. 530 ; n. 179, p. 534 ; n. 186, p. 539). In absolving the heretic who yielded to threats, the Church did not profess to believe unreservedly in a conversion which was always, to a certain extent doubtful. This is shown by the precautions taken. Pegna, in his notes on the Directorium of Eymeric, speaking of heretics whose conversion was wanting in spontaneity, recommends that they should not be allowed to communicate with persons whom they might corrupt (Direct. cit., p. 556, Commentary on n. 202). But in the case of a voluntary submission the Church saw a germ of conversion, and watched its development with extreme solicitude. We do not agree with M. Jordan in saying that amendment was supposed to have been obtained ; we should rather say it was supposed to have been begun.

¹ “ [But those condemned by the Church are to be left to secular judgment, to be punished with due chastisement, clerics first having been degraded from their orders] ” (C. Excommunicamus, 15 De Hæreticis, v. 7). These expressions are borrowed from the Council of the Lateran (1215) rather than from a Constitution of Frederic II. (1231), which is perhaps two years later than this decretal. Raynald (Annales Baronii) quotes it in its entirety in the year 1229 (t. 21, pp. 37-41). Mgr. Douais (L’Inquisition, p. 137) relies on a Register of Gregory IX. to bring it to 1231. See Potthast, Regesta, n. 8445, pp. 9675, 10043;

The ecclesiastical judge, in delivering a condemned person to the civil power, insisted that he should be spared the penalty of death or mutilation. The order was in these terms : “ As the Church has exhausted all the means at her disposal ... we cast you out from the dominion of the Church, and deliver you to the secular arm. But we earnestly pray the secular tribunal to inflict upon you a moderate sentence, stopping short of death or the shedding of your blood.”¹ Such is the formula of Eymeric, and that of Bernard Gui is similar to it : “ We give him up as a heretic to the arm and judgment of the secular court, affectionately praying that court, as the sacred Canons recommend, to moderate its judgment and sentence, and to spare the condemned person from death or mutilation.”²

¹ “ [Since the Church has nothing further that she can do, . . . we cast you out and leave you from our ecclesiastical forum, or hand you over to the secular arm. Nevertheless, we earnestly and efficaciously ask the said secular court to moderate its sentence concerning you short of the shedding of blood and danger of death] ” (Eymeric, Directorium, part 3, p. 550; cf. pp. 554, 559). The variations indicate whether there is question of a relapsed but penitent heretic, one impenitent but not relapsed, or one who was both impenitent and relapsed.

² [We leave the same person as a heretic to the arm and judgment of the secular court, affectionately asking that same court, as the canonical sanctions advise, to moderate its judgment and its sentence concerning him short of death and the mutilation of his limbs] ” (Practica Inquisitionis Hæreticæ Pravitatis, ed. Douais, p. 127).

In effect, then, the Inquisition may be defined as a mixed tribunal established against heresy, in which the ecclesiastical judges sought out persons guilty or suspected of heresy, demanded their abjuration or retractation, imposed various penances, and handed over to the secular arm those whom they found obstinate or relapsed.

If we add that from the time of Innocent IV.¹ and Alexander IV.² it was permitted to use torture in order to obtain confessions, we can easily understand the objections made at the present day against the inquisitorial procedure, and the popular idea of its action, entertained by those who are prejudiced against the institution itself, and those who are opposed to all authority and all judicial tribunals.

¹ C. Ad extirpanda in Eymeric, Appendix, p. 8.

² November 30, 1259 (?), Potthast, Regesta, 17714.

We should not be justified in condemning the procedure merely because a public officer acted as accuser, instead of waiting for a private individual to take the responsibilities and consequences of a criminal action ; for even at the present day in serious cases a private person is merely a complainant, but the proceedings against the accused are conducted by the public prosecutor. M. Va- candard himself admits that the system of prosecution by a private accuser “ was scarcely applicable to trials for heresy.”³

³ L’Inquisition, p. 275.

But the secrecy maintained as to the names of the witnesses and informers, the restrictions as to the choice of an advocate, the traps set in the interrogatories, the torture, the frightful torture, are some of the features of the trial which make men look upon a person suspected of heresy as a victim delivered up, without defence, to the fanaticism of an ecclesiastical judge.

Nevertheless, this is not a correct description. We willingly admit that the procedure of the Inquisition was not perfect ; we have improved upon it, no doubt, and still we have not reached perfection. But it satisfied two conditions which should induce us to withhold our condemnation : it was not behind the times, and it was regulated by a sincere desire to do justice.

The accused person did not know who had denounced him, or who had given evidence against him. But why ? Because numerous murders had shown the danger of disclosing their names.¹ In theory the interrogatory was meant to give him an opportunity of contradicting the case for the prosecution ; but, as Boniface VIII. had decreed, if the judges decided that there would be serious danger in revealing the names of the accusers and witnesses, they might refuse to make them publicly known. Does this mean that no discussion was allowed on the subject of these persons ? Not at all. The law considered the interests of the accused, who was able, by naming his enemies, to destroy or weaken² the effect of their evidence. The Inquisitors were bound to communicate the names of the witnesses to the Bishop, and the Bishop to the Inquisitors. The jury, moreover, had to decide on the admissibility of the evidence.³ On the whole, considering the period, were not these provisions perfectly wise ? Even at the present day, considering the difficulty of obtaining true evidence (such is the effect of the fear of consequences in sealing men’s lips), and the scandalous impunity given to the worst malefactors by the refusal of witnesses to give evidence, we may reasonably doubt whether complete publicity is in all cases to be recommended.

¹ Lea and Tanon admit this, as well as Mgr. Douais and M. Vacandard, who on p. 52 quotes the two first-mentioned writers.

² According to the degree of the enmity. See Eymeric, Directorium, p. 479.

³ Boniface VIII., C. Statuta, 20 De Hæreticis, in 6° (v. 2).

Had the person accused of heresy no one to defend him ? Let Eymeric answer, whose Directory has become classic. He says (p. 479) : “ An advocate must be given him, and must not be refused him.” And his commentator, Pegna, says (p. 480) : “ It is a question of natural justice.” The texts, it is true, have left room for misconception. “ Neither advocates nor notaries can favour heresy, or a notorious or convicted heretic,” is all that we can find in the written law, notably the famous Constitution Si adversus, 11 De Hæreticis.¹ The chapter may be easily misunderstood, but it would certainly be an exaggeration of its scope to read in it any prohibition against employing the assistance of advocates or notaries in cases of heresy. As long as there was any question of the guilt of an accused person, he was unrestricted in his defence ;² it was only when the fact of heresy was established that the advocate had done his work. After that it was considered that there was no reason for advocacy, which could only encourage heresy. At that time the punishment to be inflicted was not a subject for argument ; it depended on the guilty person himself to show the only extenuating circumstance that could help him—namely, his repentance and conversion. Moreover, we must not forget that the law permitted an accused person to object to an Inquisitor for good cause ; that it granted a right of appeal from every sentence that was not final; and that even after a final sentence there was always a right of special application to the Sovereign Pontiff.

¹ See Eymeric, p. 104.

² Eymeric thought it unnecessary to allow assistance to an accused person who confessed ; but Pegna corrects him on this point (p. 480).

There was no lack of precaution to secure a fair trial for the accused persons.

But what are we to say of the tricks by which certain Inquisitors endeavoured to embarrass the accused and make him contradict himself ? Do not the public prosecutors and examining magistrates of the present day follow the objectionable procedure of their medieval predecessors ? Need we be surprised to find in a directory for the use of Inquisitors a warning as to the subtleties of heretics and the best means of defeating them ? In dealing with a sect whose members were trained in craft and duplicity a little cunning seems to be logically permissible, and can offend no one except those of the falsely-styled chivalrous school, who would always give an advantage to the criminal in his struggle against authority.

The art of punishing has this in common with the art of healing, that it condemns and rejects as erroneous and pernicious certain practices which have hitherto been considered justifiable. One of these is torture. It is not a clerical invention ; it is a relic of Roman law, accepted by lawyers who professed their admiration of that law. The study of the Digest, which was held in great honour in the latter half of the twelfth century, excited an enthusiasm which was followed by that of humanism. The Roman law was looked upon as reason reduced to writing ; men swore by its solutions of problems, and its prescriptions were accepted without question. In admitting a moderate amount of torture into the procedure against heretics, Innocent IV.¹ showed himself to be a Pope friendly to progress ; he followed the current of opinion. If he had resisted it, he would no doubt have been applauded at the present day, but he would have been condemned by his contemporaries as obscurantist and retrograde. “ It is all very well,” it would have been said, “to be gentle in purely ecclesiastical trials, but a mixed tribunal, entrusted with a social duty of the first importance, cannot show weakness, or neglect any modern means of obtaining information.” Why should we not at once frankly admit that torture is less to be condemned in theory than in practice, which is apt to be abused ? Even in our own day, in the more or less important affairs of life, are not threats, promises, and punishments, constantly used for the purpose of arriving at the truth ? That was all that was intended. Counting on the impression of pain actually felt, it was thought that a moderate amount of suffering (and the law permitted no more) would leave the innocent person free to assert his innocence, and loose the tongues of the guilty. Torture, moreover, could only be applied to persons already half-convicted, and it was only permissible in such moderation as to do no lasting harm. We may add that, under the penal law then in force, judges were anxious not to convict a man except on his own admission. Even then the disadvantages of torture were not disregarded ; Eymeric recommends that it should only be employed after careful consideration, describing it as an unsafe and ineffective method of discovering the truth.¹

¹ C. Ad extirpanda, May 14, 1252, quoted by Eymeric, Directorium, Const. Apostolicæ, pp. 7 sqq.

¹ Directorium, three pars., n. 154, p. 517.

The subtleties of interpreters led to a straining of the letter of the law,² and such abuses naturally brought the use of torture into disrepute as a means of obtaining evidence, and no one regrets its disappearance. However, if we would judge fairly of the procedure of a past time, we must not omit to take all the circumstances into consideration. Our gentler methods and the efficiency of our police make it easy for us to organize our procedure on the principle first formulated by a Pope, that the greatest possible misfortune is to condemn an innocent person.³ Formerly the necessity of more energetic social defence made men fear most of all to let a guilty person escape. Finally, we may observe with Mgr. Landrieux,⁴ that torture at any rate was an improvement on the system formerly followed— namely, that of trial by ordeal.

² The law forbade the repeated use of torture. To escape this prohibition, commentators held that the same torture might be continued through several sittings.

³ “ It is a less evil to acquit the guilty than to sentence an innocent person to death” (Alexander III., Ep. 118 to Henry, Archbishop of Rheims, M.P.L., t. 200, col. 187).

⁴ L’Inquisition : Les Temps, les Causes, les Faits, pp. 107 sqq.

We have now to consider the attitude of the Church, and her part in the work of the Inquisition. According to the account that has already been given, the Church took part in the judicial proceedings, and, indeed, claimed a principal part, and at first even exclusive jurisdiction ; but in the case of an obstinate or relapsed heretic she stayed her hand, and delivered him to the secular authority for punishment, instructing her judge to implore of that authority a leniency which she forbade him to show. Does not this look like a sinister comedy played at the expense of heretics, in order that the Church might glut her appetite for cruelty, and at the same time save her reputation for clemency ?

This accusation has often been made ; let us look carefully into it. The intervention of the Church and the preponderant part which she claimed are explained at once by her spiritual mission. Before a heretic could be punished it was necessary to establish the fact of his heresy—that is to say, his obstinate sin against faith—a matter entirely ecclesiastical, which the Church was clearly bound to reserve to herself, unless she consented to give up her independence. The teaching authority established by God to define the truths of religion is alone competent to say whether an offence against religion has been committed. “ To say with certainty whether there had been heresy, and in what that heresy consisted,” Mgr. Douais wisely remarks, “ it was necessary first to possess the doctrine which was contradicted, and then to determine with the necessary authority what that doctrine was.”¹ In this sense, and in this sense only, the Pope forbade the secular power to take cognizance of heresy,¹ and it was all in favour of accused persons that they escaped from the hands of an authority much less scrupulous than the ecclesiastical authority. If, in spite of the intervention of pontifical delegates, the Popes were obliged more than once to repress or prevent the abuses engendered by human passions ; if the pressure exerted by the State brought about strange and regrettable condemnations ; if political animosity led to the burning of Joan of Arc ; if the antireligious fury of Pombal delivered the Jesuit Malagrida to the flames—what abominable crimes would have been committed in the name of religion if secular Princes had been the supreme guardians of orthodoxy !

¹ L’Inquisition, p. 130.

¹ Even Catholic authors, such as MM. Vacandard and Jordan (Annales, t. 9, p. 23), seem to have exaggerated the scope of this prohibition. The words of the decretal, “ Donec eorum negotium per ecclesiasticum judicium terminetur ” (Until their cause shall have been decided by an ecclesiastical judgment), do not prove by themselves that the sentence of the Inquisitors put an end to all proceedings. In our own system, on the conclusion of the criminal proceedings, there remains sometimes a civil process to be dealt with by other judges, who at first have no jurisdiction, because the policy of the law requires that before the party injured by any felonious act can seek civil redress for it, the matter shall be heard and disposed of before the proper criminal tribunal. Later on we shall have occasion to return to this point. Commentators have given to the text an extended significance which has been practically accepted. But if we consider well the terms of the law, the only point which the sentence of the Inquisitor finally decided, and which the secular authority had no power to reconsider, was whether the Court found itself dealing with an obstinate or relapsed heretic. M. Vacandard himself quotes these texts of the period of the decretals (1234) : The C. Excommunicamus, 15 De Hæreticis, v. 7, which delivers to the secular judgment, [are to be left to secular judgment], heretics condemned by the Church; the Constitution of Frederic II. (March, 1232, Mon. Germ. Hist., t. 4, Legum 2, p. 288), in which the Emperor orders the punishment of those whom the Church has condemned and handed over to the secular authority, [assigned to secular judgment] ; a processus inquisitionis of the middle of the thirteenth century, the formula of which gives up the heretic to secular judgment: [by definitive sentence we judge him a heretic, leaving him from now on to secular judgment]. And in the text itself (1298), which contains the decretal of Boniface VIII., the delivery to the secular authority is mentioned in the C. Super eo, 4 De Hæreticis, v. 2. The ch. Præsidentes, 6 eodem, while permitting excommunicated civil magistrates to exercise their judicial power and office against heretics ([to exercise justice and their office]), evidently contemplated the active exercise of this power, existing concurrently with the decretal. And if the secular authority sometimes consented simply to execute heretics, in France certainly, as M. de Causons admits, the secular magistrates were not long content to accept the part of passive executioners (op. cit., p. 474, n.).

But why, then, did not the Church deal with the whole case ? Why did she stop in the middle when dealing with an obstinate or relapsed heretic ? Why give a man over to the secular arm when she was as competent to decide the measure of his punishment as the fact of his guilt ? Was there not some cruel device in this transfer of jurisdiction ? We could understand a claim of exclusive jurisdiction, which gave everything to the Church ; we could understand that the Church should reserve to herself the right to decide the fact of heresy, leaving the question of punishment entirely to the civil magistrate, but it is less easy to understand why this question of punishment should partly remain with the Church, and be partly transferred to the State. The key to the enigma is supplied by the mixed character of heresy, by the common interest of both authorities in its repression, and by historical precedents.

Heresy, primarily a religious matter, though having political and social effects, was primarily within the jurisdiction of the Church ; therefore the first proceedings were exclusively ecclesiastical, and so would have continued to the end if there had been merely a question of protecting the interests of the two societies. For a first offence, when the heresy was not obstinate, the State had no need to interfere ; it left matters to the Church, which lacked neither vigilance nor power to take all precautions necessary for the public good, and, on the other hand, the submission—at least the outward submission—of the heretic who retracted his opinions allowed her to listen to the voice of mercy, and in her zeal for souls to undertake the task of complete conversion, and so to effect two desirable results, the public good and the salvation of a soul.

So far there was no offence cognizable by the civil tribunal, or at all events the offence had not been consummated ; that is to say, the fact of heresy had not presented itself with all the characteristics and in all the conditions necessary to bring it under the application—at least the absolute application—of the penal laws of the period.

But if the Church failed in her efforts, the offence assumed such a character as to require punishment both from the religious and from the social point of view. The Church, assured of the support of the secular arm, surrendered to the civil authority the purely vindictive character which was not in keeping with her own merciful nature ; seeing that her exhortations and corrective penances were without effect, she declared that she had done all in her power, and then, adopting for the crime of heresy, an offence within her cognizance, the procedure followed when clerics or exempt persons were convicted of forgery, theft, homicide, or other offences against common law, she delivered the incorrigible offender to the secular power. This is the reasoning of the decretals,¹ the Council of Constance,² and of St. Thomas.³

¹ “ Cum Ecclesia non habeat ultra quid faciat ”—As the Church can do no more (C. Cum non, 10 De Judiciis, ii. 1).

² “ [This holy council, considering that the Church of God is not able to do anything further, leaves John Hus to secular judgment and decrees that he is to be handed over to the secular court] ” (This Sacred Council, considering that the Church can do no more, gives up John Hus to secular judgment, and decides that he shall be handed over to the secular court).

³ 2, 2, Q. xi., Art. 3. The Church first endeavours to bring about the conversion of heretics. When she despairs of this, she hands them over to the secular arm. The use of this mixed procedure dates from the seventh century for the clergy ; for Bishops from a still earlier period. See the monograph quoted by Viollet, p. 271. Even the expression “ the Church has done all in her power ” is formally used in such trials. See the decretal Cum non, 10 De Judiciis, which goes back to 1191-1198. There was there a case of a priest who had been guilty of an offence against common law, and proved incorrigible.

A relapse into heresy created a legal presumption against the reality of the first repentance. Sincere, perhaps, before God, and therefore admitted to sacramental absolution, the relapsed penitent had not sufficiently gained the confidence of the Church, and had too entirely forfeited her esteem to deserve the benefit of ecclesiastical treatment. In his case, as in the case of an obstinate heretic, the Church declared herself powerless, and placed him at the mercy of the secular arm.⁴

⁴ St. Thomas justifies the treatment of the relapsed in the same manner as the impenitent by the distrust they inspired, and by the social danger caused by their inconstancy. The similarity, as we have seen, was not complete. The relapsed penitent escaped the penalty of fire ; his dead body only was burned.

The Church was prompted to deliver none but the impenitent or relapsed, not only by her own natural inclination to mercy, but also by the very nature of heresy. Religious error may be innocent; it becomes heresy only when committed knowingly and deliberately, and to deserve the extreme rigour of the law it must be entirely without excuse. The Church desired to exhaust all her powers of persuasion, all her means of reclamation, before she was convinced of the full culpability of the heretic. What charges of cruelty would she have incurred if she had lightly permitted the sword of secular authority to fall upon the heads of her children without putting forth all her efforts to avoid it!

But when once she had declared that she could do no more, the Church had to consider her own respect for tradition, and the respect due to the temporal Sovereign.

Let us go back to the very origin of the Inquisition. As we have already observed, Frederic II., who was hypocrite enough to urge the Pope to more zeal for the defence of the Faith, and to suggest his own example as one which the Pope would do well to follow,¹ showed in the fight against heresy an eagerness which raised suspicions as to his own ambitions and usurping intentions. By his Constitutions of 1231 and 1232 he endeavoured to secure for himself the leading part in the repression of religious error, but Gregory IX. had the intelligence to foresee and ward off the blow. The appointment of the Inquisitor enabled the Pope to keep in his own hands the whole spiritual part of a trial for heresy ; but he had no desire, and perhaps he did not consider himself qualified, to take away from the Prince the secular power claimed by the latter. Frederic II. asserted his claim loudly enough ; it was in his own name, and by his own authority, that he took his severe measures against heretics, and condemned them to the stake.¹ Let us go back farther in history. To whom did the Bishops appeal when driven to extremities by the excesses of the Donatists and other sectaries ? To the secular Princes. And the Emperors had placed heresy in the list of crimes that were dangerous to the public welfare. The old Roman Empire bequeathed this tradition to the Empire of the West and the Lower Empire ; it became the tradition of the Holy Empire and the Kings of France.²

¹ Lea, op. cit., t. 1, p. 233.

¹ See the texts quoted in connection with the origin of the Inquisition. This point, moreover, cannot be disputed. Neither the custom nor the written texts which from the time of Louis VIII. (1226) prescribed the penalty of death were established or published under the influence of the Church.

² Speaking of the Manichæans and Donatists, Arcadius and Honorius had declared : “ [We will it to be a public crime, because that which is committed against divine religion is regarded as an injury to all] ” (Theodosian Code, l. 40, De Hæreticis, xvi. 5, or Code of Justinian, De Hæreticis, i. 5, l. 4, § 1). Frederic II., in his turn, declared in his Constitution Inconsutilem : “ [We decree first of all that the crime of heresy and that of any condemned sect, by whatever name they may be designated (as has been prescribed by the ancient laws), are to be numbered among public crimes].” And independently of the ordinances of Louis VIII. (1226) and St. Louis (1228), an ordinance of Louis X. (December, 1315) confirmed the Constitutions of Frederic II.

We know what respect the Church pays to traditions. In the present case she was bound to pay especial respect, because the tradition was in harmony with true principles on the mixed nature of the crime of heresy and the relations of the two powers. But did not the Church misunderstand the rights of the temporal sovereignty when she promised impunity at the price of a retractation ? M. Jordan seems to suggest that she did.¹ But this is through a mistake as to the meaning of the laws.² Read the Constitutions of Frederic II. The Emperor does not punish all heretics, but only the obstinate ones handed over to him by the Church, and those who by returning to heresy are convicted of having made a lying abjuration.³ Before the civil tribunal the offence consisted in obstinacy or relapse, as under our laws certain acts, as, for instance, usury, or adultery by a husband, are punishable only when accompanied by aggravating circumstances. If any additional offence were committed, the course of civil justice could not be stopped by a canonical absolution. Thus, when Charles V. had issued his rigorous edicts against the preaching of heresy, and the printing, purchase, and sale of heretical books, a distinction was made in the Low Countries between the crime of heresy and the crime of contravention of the decrees so promulgated.¹ The obstinate heretic was handed over to the secular arm, but the fact of his reconciliation with the Church did not prevent the secular tribunals from punishing the repentant sinner for disobeying the published orders.

¹ When he says (Annales, t. 9, p. 46) that heretics had incurred the penalty of death.

² And also by disregard of the law in force on the relations of the two powers. In mixed causes the secular authority at first left the Church to use its own means of repression and correction. If these means effected the conversion of the guilty person, the Church did not hand him over to the secular arm (see c. Cum non, De Judiciis, ii. 10). Shall we find fault with a system which was the precursor of our own penal law reforms, especially of the conditional condemnation ? It may be interesting to observe that the pagan persecutions similarly offered impunity for religious offences, and even rewards as the price of return to the State religion.

³ “ [Those condemned by the Church and assigned to secular judgment . . . Likewise, we have judged that any heretics brought to judgment are to be sentenced to death if, after abjuring heresy in the extreme danger of life, it should later be established that they committed a false oath and they should be convicted of feigned faith, and it should befall them to incur a voluntary relapse into the same death, so that the feigned wickedness may be more damnable to them and the lie may not escape the penalty due] (C. Commissi).

¹ See Poullet, Histoire du Droit Criminel dans l’Ancien Duché de Brabant, p. 60, and the texts quoted by Lonchay, loc. cit., p. 28. The latter adds : “ It is because this distinction has not been understood that the history of the Inquisition has not yet been treated as it should have been.” Tanon remarks that by a similar distinction the Parliamentarians in France appropriated, in the matter of the Reformation, all inquisitorial power (op. cit., p. 553).

There remains still the objection, a specious one at first sight, which is suggested by the illusory prayer for mercy which the Church compelled her Inquisitors to make. How shall we excuse the Church for asking mercy for the heretic, and at the same time urging the execution of the law by which he was condemned to death ? She causes a prayer to be made, but takes care that it shall not be granted, and this is what the canonical laws, by a masterpiece of irony, call an effective appeal. This little historical problem, as MM. Maillet-Hanquet well call it,² can only be solved by going back to the beginning, and observing the progressive advancement of ideas.

² Op. cit., p. 107.

If this official intercession had been invented expressly for the case of heretics, and if the ideas of the eighteenth century had been those of Innocent III., we readily admit that we should understand the severe criticism that has been passed upon it. But the case is quite different when we observe the dates, and distinguish between the first establishment of a practice and its continuance as an ancient custom.

The Eleventh Council of Toledo (675) had already,¹ under the most severe penalties, prohibited “ those whose duty it was to dispense the sacraments of the Lord ” from judging a cause which might end in a capital sentence, as also from inflicting or ordering any mutilation whatever. Alexander III. († 1181) renewed this prohibition in a letter to the Archbishop of Canterbury ;² it is found also in the Acts of the Fourth Council of the Lateran (1215) ; the clergy were forbidden also to be present at the execution of any sentence attended by bloodshed.³ A short time before, in 1209, Innocent III., wishing to regulate the manner in which a criminal cleric should be degraded, and then delivered to the secular arm, added this direction : “ The Church must intercede effectively that his life may be spared.” It was a way for the Church to inculcate more and more on her ministers that spirit of mercy which Jesus Christ had left to them as their inheritance. When introduced into the general law,¹ this procedure was to be observed by the ecclesiastical judge who handed over to the secular arm an obstinate or relapsed heretic. Being unable to interfere reasonably with the course of public justice, but nevertheless desirous of accomplishing her mission of redemption, the Church attempted a benevolent intervention in order to reconcile with her clemency the laws of public vengeance ; she interceded where she had no right to command. “ From the first,” remarks Hinschius,² “ the Church, anxious for the reformation of criminals, exerted herself to save the lives of those whom the secular authorities had condemned to death. In declaring it effective, Innocent III. made it sufficiently clear that this prayer was not an unmeaning ceremony, but that he wished a serious step to be taken, which might have a real influence on the fate of the criminal.”³

¹ In its Sixth Canon, which became, in the decretal of Gratian, c. 30, C. xxiii., Q. 8. See Harduin’s Concilia, t. 3, col. 1026.

² Which became c. Clericis, 5, Ne clerici vel monachi, etc. (iii. 50).

³ This Canon became the c. Sententiam sanguinis, 9, Ne clerici vel monachi (iii. 50).

¹ c. Novimus, 27 De verborum significatione (v. 40).

² System des Katholischen Kirchenrechts, t. 5, p. 50, n. 5.

³ According to Trautmansdorff (De Tolerantia Eccl. et Civili, French edition, p. 125), it was long disputed whether a Bishop could deliver anyone to the secular arm, foreseeing the uselessness of his appeal for mercy. Boniface VIII. seems to have settled the question, and decided that it sufficed to make the appeal. We have not been able to verify the assertion of this author, but, if he is speaking the truth, nothing could more conclusively prove the sincerity of the Church’s intentions.

Innocent III., moreover, did not desire that heretics should be punished with death.⁴ The efficacy of the request for mercy became more doubtful¹ when Frederic II. issued his merciless edicts against heretics, and when the Popes in the middle of the thirteenth century insisted on their enforcement,¹ and it certainly seems to have been abolished from the fifteenth century. Then a doctrine was formulated which was to find its classic expression later in Bellarmine, Suarez, and the great Canonists of the seventeenth and eighteenth centuries.² According to this opinion the Church has the right to condemn to death, and the capital punishment of obstinate or relapsed heretics becomes the common work of the two powers. By not sending to the stake the heretic delivered to him by the Church, the secular magistrate offends against the decretal of Boniface VIII.,³ and exposes himself to the penalties prescribed against lay officials who refused to carry into effect the sentences of the Inquisitors.

⁴ This must be admitted, since the Pope’s biographer, M. Luchaire, who was not a Catholic, has ratified the previous judgments of M. Havet (L’Hérésie et le Bras Séculier, p. 165, n. 3) and M. Ficker. The latter, in M. Havet’s opinion, has made this point clear. M. Tanon (op. cit., pp. 449, 450) finds in the letters of Innocent III. sufficiently clear allusions to the possible infliction of capital punishment for heresy, but neither the Pope’s conduct nor his most explicit decrees can be reconciled with this opinion. “ In the legislation of Innocent III., as in his letters,” writes M. Luchaire, “ there is no question of death for heretics ; he never asks for more than their banishment and the confiscation of their goods. If he speaks of having recourse to the secular sword, he does not mean by this anything more than the use of such force as is necessary for the measures of expulsion and expatriation prescribed by his penal code. This code, which appears to us so unmerciful, constituted in comparison with the customs of the time a real progress in a humanitarian direction. It regulated and mitigated the procedure of repression in the matter of heresy; it forbade summary executions, the victims of which were not only declared heretics, but sometimes also persons simply suspected of heresy ” (Innocent III., La Croisade des Albigeois, pp. 57, 58).

¹ Mgr. Douais thinks, nevertheless (L’Inquisition, pp. 267, 268) that the civil judge could still take this prayer into consideration, and it is true that the general application of a law is compatible with special exemptions. Nor can it be denied that in all periods of history the Inquisition furnishes examples of heretics who, in spite of their obstinacy, escaped with their lives. But we have not sufficient materials to judge of the efficacy of the ecclesiastical intercession. Perhaps it varied with the latitude which the civil law allowed to the judge. Certainly the Sovereign retained the right to commute the punishment. In 1235 Gregory IX., wishing for an exemplary punishment for certain heretics who had killed the Bishop of Padua, solemnly excommunicated them, and demanded their banishment. He himself, in a similar case, commuted this last punishment into another less severe. See Annales, Raynald, t. 21, edit. Theiner, pp. 111, 112.

¹ Innocent IV., C. Cum adversus, October 30, 1243 (B.R., t. 3, part i., pp. 295 sqq.). See also his other Constitution, Ad extirpanda, May 10, 1252, a sort of collection of decrees against heresy, in ll. 3 and 4 of which he prescribes exile only, while in l. 34 he demands the enforcement of the laws of Frederic II.—Urban IV., C. Licet ex omnibus, March 20, 1262 (B.R., t. 3, part i., pp. 437, 439). Not before.

² See the references in the chapter on the Right of the Sword.

³ Ut Inquisitionis, 18 De Hæreticis in 6° (v. 2). Such is not the original meaning of this decretal ; it obliges lay magistrates and officials to obey promptly the orders which the Bishop or Inquisitor may give them in a case of heresy ; but the injunctions in the decretal relate to the drawing up of the process and the ecclesiastical punishments, and not to any sentence of death, which neither the Bishop nor the Inquisitor could pass. Look at the gloss ; it assigns to this decretal the special object of securing the arrest and imprisonment of heretics whom the Inquisitor or the Ordinary desired to apprehend or detain in custody. Consult the very formula by which, as M. Vacandard says, “ they got rid of an impenitent or relapsed heretic.” It contained no injunction. M. Vacandard translates : “ We remove thee from our ecclesiastical tribunal, and deliver thee to the secular arm. But we pray, and that effectively, the secular Court to moderate the sentence in such manner as to avoid all shedding of blood or peril of death ” (L’Inquisition, p. 214).

Under such a system the prayer for mercy seems to have been unnecessarily imposed upon the ecclesiastical judge, and it may be asked, What was its object?¹ We answer, No longer to relieve the Church from responsibility, but to save the judge the penalty of irregularity. An authority which believes that it possesses the right of the sword may have excellent reasons for forbidding certain of its ministers to take part in the exercise of that right. The Church has always insisted on expressing her opinion that the shedding of blood was incompatible with the clerical character of her judges ; but it was the general opinion at that period that what was inconsistent with the office of a judge was not necessarily so with that of a legislator, and we can understand the distinction. The enactment of a law permitting capital punishment is much farther removed from the actual punishment than a sentence which condemns an accused person by name ; we do not feel the same repugnance for the judges as for the executioner who carries their sentences into effect, and the retention of the death penalty on the statute book does not excite the same horror as the sight of an execution.

¹ Certain ecclesiastical judges neglected to comply with the rule, and a question arose whether their omission did not make them irregular (Suarez, De Censuris, d. 47, s. 1, n. 12).

The Canonist Reiffenstuel is an unimpeachable witness, and he tells us that Bishops and other prelates having temporal jurisdiction would be irregular if they condemned any person to death or mutilation, or if they recommended such a punishment, or required that it should be inflicted on any particular individual ; but they could, without fear of irregularity, appoint judges to try the criminal, and direct them to pass sentence according to law, and to see that the sentence was carried out.¹

¹ In l. 5, t. 12, n. 95.

Consequently, after the fifteenth century the ecclesiastical judge, pleading for the life of a guilty person, could not do much to help a heretical client ; but he avoided staining his hands with blood, and he fulfilled the conditions which the law required under pain of irregularity.²

² Irregularity is an impediment under ecclesiastical law to the reception or exercise of sacred Orders.

Certain authors of the eighteenth century went still farther than those whose opinions we have quoted. In the opinion of Cardinal Petra, for example, the laws against heretics derived all their force from pontifical approbation. It is only in the name of the Church that the Sovereign can sentence them to death; the Inquisitor decides everything. The civil magistrate’s duty is not to judge, but to obey. Thus, the intercession on behalf of the condemned person is reduced to a mere formality ; it is an old custom which has lost all its significance.³

³ See Petra’s Commentaries on the Constitution Cum adversus (s. 1, n. 7 sqq. ; s. 2, n. 24) ; Constitution of Alexander IV., Quod super (n. 16); Ad audientiam (n. 8, t. 3, pp. 4, 5, 7, 133, 147).

Thus, then, from the thirteenth to the nineteenth century the current opinion has varied. Until the fifteenth century the Church, if she does not save the heretic, cannot be said to condemn him to death. “ The Church delivers impenitent heretics to the secular arm. . . . She does not save relapsed persons from the danger of death.”¹ The thirteenth-century author quoted by M. Vacandard is not shirking a difficulty, but simply telling the truth, when he says : “ Our Pope does not kill, nor order that anyone shall be killed ; it is the law which kills those whom the law permits to be killed ; they kill themselves who do the things which bring this penalty upon them.”² In this first period, the prayer of the judge is the prayer of the Church herself,³ and it serves to show at least by what order the blood was shed. From the fifteenth to the eighteenth century the sentence of death is considered also as an ecclesiastical sentence ; the judge, in praying that the life of the heretic may be spared, is no longer the organ of the Church : he only refrains from taking part in passing the capital sentence in order to avoid irregularity. Finally, in the opinion of some authors of the eighteenth century, the prayer on behalf of the heretic ceased to be anything but an ineffective and antiquated formality.

¹ Such are the expressions of St. Thomas (2, 2, Q. 11, Art. 4 c. et ad 1).

² L’Inquisition, p. 213.

³ “ [On whose behalf the Church ought to intercede effectively] ” (C. Novimus, 27 De verborum significatione, v. 40).

But we must remember that at that time the Inquisition also was in most countries nothing but a nominal institution. Our rapid review of opinions, in which we have anticipated the following period so as not to have to return to this special point of the procedure against heresy, leads us to this interesting conclusion : the sentence of death is attributed to the Church in proportion as its application to heresy becomes less frequent. But we may remark that at no time was the plea for mercy a “ device,” or a “ cruel mockery,” or an “ empty form,” as has been suggested.¹

¹ According to Lea, this prayer of the Church was “ merely a device to avoid responsibility for its own acts . . . a hypocritical adjuration ” (op. cit., t. 1, p. 224). M. Tanon (op. cit., p. 474), who nevertheless gives a better account of the origin of the custom, considers that “ it was merely a cruel mockery in its application to heretics, and the fiction on which it rested could not be disguised by the casuistry of the most subtle doctors.” M. Vacandard looks upon it as an unintelligible subtlety, an empty form, a legal fiction (op. cit., pp. 212, 215, 295).

The plea, which at its inception was seriously put forward and often produced a good effect, reflects the real spirit of the Church—a sincere desire to spare human life, and show respect for the human body. It served also to keep ecclesiastical judges in mind of the nature and the limits of their mandate. Ecclesiastical authorities never used it to save appearances, or to seem mild and gentle while striking with implacable severity. It is true that apologists of the nineteenth century have exercised their ingenuity to lighten the responsibility of the Popes ; but the Popes themselves never attempted to disguise their action,² or refused to accept the responsibility.³

² It is sufficient to read the Bulls of Innocent IV., Alexander IV., St. Pius V., etc.

³ Similarly, the Church has been unjustly accused of reticence because in her laws she says that the heretic is delivered to the secular arm to undergo the punishment he deserves, instead of saying plainly that she gives him up to be put to death. The formula, indeed, is older than the legislation which condemns obstinate heretics to death, And the Church, in her intentional want of precision, showed her respect for the secular authority, with which it rested to decide on the penalty incurred by the criminal handed over. See, for example, the ch. Ad abolendam, 9 De Hæreticis (v. 7), of Lucius III.

The condemnation is thus shown to be unjustifiable. To make the prayer the sham and subterfuge it is represented to be, the first condition is wanting—namely, that the Church should have thought of using it to lighten her own responsibility.

The continued use of the prayer for mercy after it had become an empty form will surprise no one who knows how tenacious courts and chanceries are of their old procedure, and who will observe how many old customs have outlived the original reason of their institution ; there are in England many such survivals in the ceremonial of public life.

Would it be rash to add that, even if without immediate effect, these intercessions, continued for centuries, exercised a good influence on the amelioration of manners, the mitigation of punishments, and an improvement in the whole course of criminal legislation ?

Summary : Two contradictory exaggerations.—Certain heretics are deserving of pity.—In general, the seduction of the masses is more feared than speculative errors.—Liberty of controversy.—The complaint of Servetus.—The Waldenses.—The heresy persecuted is a reformist revolutionary movement.

An honest and careful examination has convinced us of this, that, considering the manners and customs of the centuries during which the Inquisition exercised its functions, its procedure has not that odious and retrograde character which its opponents desire to fix upon it ; and the irregular and improvised Courts of the people, and the regular Parliaments of Sovereigns, have condemned more heretics to death than the tribunal of the Inquisition.

Having thus disposed of what we may call a question of form and method, we proceed to the substantial issue, What heretics were condemned to death ? The prejudices and passions of contro- versialists represent persons condemned for heresy sometimes as innocent victims of fanaticism, sometimes as criminals and rebels, who for other reasons had already deserved the gallows.

There is exaggeration on both sides. We have no desire to blacken the characters of those unfortunate people, and we should augur ill for a cause which could only be defended by detraction and calumny. We willingly admit that all active suppressions of heresy have been cruel in taking interesting and even inoffensive lives ; the Catharists of the thirteenth century, the Anabaptists, the Lutherans, the English Protestants of the sixteenth, included peaceable and conscientious persons, who died with nobility and courage, and who deserve all our pity.

But the interest we feel in individuals must not blind us to the nature of the causes in which they were, knowingly or unknowingly, implicated, and if we only reflect a little we shall find that they resemble those innocent persons who sometimes swell revolutionary movements in spite of themselves, and find themselves involved in the consequences.

The character of the heresy, as well as time and place, had its influence on the energy employed to root it out, and the seduction of the masses and their mystical and revolutionary ardour often necessitated severe, and in some respects harsh, measures of repression. Lea practically admits this. “ The only heresies,” he says, “ which really troubled the Church were those which obtained currency among the people, unassisted by the ingenious quodlibets of dialecticians.”¹ “ The schoolmen were allowed to indulge in endless wrangling, for the most part, without censure.”² Farther on, he expresses his surprise at the impunity allowed to some of the novel ideas : “ Averrhoism had thus fairly conquered a position for itself, and it is one of the inscrutable problems why the Inquisition, so unrelenting in its suppression of minor aberrations, should have conceded impunity to speculations which not only sapped the foundations of Christian faith, but by plain implication denied all the doctrines on which were based the wealth and power of the hierarchy.”3 “ After this (1443) scholarship, however heretical, had little to fear in Italy.”⁴ The same Frederic II., who was so jealous for orthodoxy in his Constitutions, introduced Averrhoism into Germany. It would, therefore, be quite incorrect to attribute an effect of universal and perpetual terror to the Inquisition, which, as Lea admits, “ had always been weak and unorganized ” in Germany,5 and in Italy had “ extended its toleration to the most daring speculations.” 6

¹ Op. cit., t. 3, p. 550. 2 Ibid., p. 555. 3 Ibid., p. 565.

² Op. cit., p. 259. 3 Ibid., pp. 275, 276.

⁴ Ibid., p. 568. 5 Ibid., p. 648. 6 Ibid., p. 565.

Summing up the opinions of the writers of that period, Viollet observes: “ All are agreed that the heretics of the twelfth and thirteenth centuries were guilty of offences against the common law.”¹ M. de Cauzons (Abbé Thomas) represents the war against heresy as a war to the death between the Church and the revolutionary spirit. In this warfare, he adds, in which names doubtless differ, and perhaps doctrines also, the fundamental idea of the assailants is that the Church, and especially the Papacy, is the enemy. Against the Church pamphlets are circulated, and political passions are aroused ; against her defenders all means are considered justifiable, including incendiarism and murder.”2

¹ Hist. du Droit Civil Français, p. 339. He refers to Canon 27 of the Lateran Council of 1127.

The law of the Third Council of the Lateran (1179), which enjoins that an end should be made of certain sects, “ alludes,” he says again, “ not to isolated heretics, but to active partisans, armed, as we know from contemporary chronicles, parties who must be destroyed at any cost, in order to prevent the overthrow of the social edifice.”3

And, to speak precisely, if we wish for the purpose of this discussion to recall simply the dominant facts of the repression of heresy, we shall see that the three great periods of activity coincide with the ravages of three antisocial and seditious heresies— Manichæism and Donatism (fifth century), Catharism (twelfth and thirteenth centuries), and Anabaptism (sixteenth centuries).⁴

⁴ The proscription of the Manichæans by Diocletian has been already mentioned, and we have also quoted Lea’s opinion of the antisocial action of the Catharists. He says : “ The documents of the Inquisition constantly refer to ‘ heresy and Waldensianism,’ designating Catharism by the former term as the heresy par excellence ” (op. cit., t. 1, p. 82). M. Lonchay (op. cit., p. 40, n. 3) observes that the Anabaptists were treated rather as public enemies than as heretics. The imperial decree of Spires condemns them to death without the intervention of any spiritual judge: “ [Even without any preceding inquiry by spiritual judges].”

It would be a mistake, then, to look upon every execution of a heretic as an act of good justice in the common acceptation of the word ; but it would be equally absurd to weep over heretics as martyrs of free thought; their errors had no scientific or doctrinal value, such as might give them a claim to consideration. Those who confined themselves to speculation, or only expressed their novel opinions within their own schools, escaped the notice of the Inquisitors, or, at all events, were not molested by them, and they had much less to fear from them than from their colleagues in the Universities. In fact, until the great apostasy of the sixteenth century obliged the Church to be more vigilant, theological, philosophical, and scientific speculations might be indulged in without let or hindrance. It is not until the seventeenth century that we meet with a case like that of Galileo. Thus, Michael Servetus, who could not have been ignorant of the laws against heresy and the tribunals established for their administration, expressed, in the cell in which Calvin kept him confined, his astonishment at seeing himself threatened with death for a simple question of dogma.¹ The case of the Waldensians is equally significant. Their leader, starting from an ascetic idea which was perfectly orthodox, was kindly received at the Third Lateran Council. Alexander III. embraced him, approved his vow of poverty,¹ and simply warned him not to preach without being authorized to do so by the priests. The Waldensians soon disregarded this warning, and, when left to themselves, condemned ecclesiastical property, and maintained that every layman in a state of grace had a power over the sacraments which was lost by a priest in a state of sin. This, as M. Jordan remarks,² was an idea “ fundamentally destructive of all notion of Church and hierarchy.” Thus, in 1194, Alphonsus II. of Aragon declared these misguided people to be outlaws ; to destroy the Church was to destroy Christianity—that is to say, the social constitution of the Middle Ages. From that time, without taking into account the erroneous teachings on the subject of property in general and the civil power, the germ of which was to be found in the preceding errors,³ or quoting their directly antisocial tenets¹ we may conclude that their religious anarchy was then publicly combated, as political anarchy was at a later period— with this difference always, that formerly the teaching itself was punished, while nowadays the legislator boasts that the law punishes only the excesses to which the teaching naturally leads.

¹ “ It seems to me,” he wrote, “ that it is a serious thing to put men to death merely because they err on questions relating to the interpretation of Holy Scripture.” We know that Calvin had recourse to a referendum of the reformed communities, which were not unanimous in his favour, and he felt the need of justifying his conduct by a book : Defensio orthodoxæ fidei de SS. Trinitate, contra prodigiosos errores Michaelis Serveti, Hispani, ubi ostenditur hæreticos jure gladii coercendos esse.

¹ See Cartellieri-Stechele, Chronicon Universale Anonymi Laudunensis, p. 29.

² Art. cit., Annales de Phil. Chrét., t. 8, pp. 575, 576.

³ Thus Wycliffe maintained that mortal sin caused a Sovereign to lose his State: “ [No one is a civil lord, no one is a prelate, while he is in mortal sin] ” (Proposition 15, condemned by the Council of Constance). See Jordan, art. cit., p. 576.

¹ For example, the Albigensians and Waldensians contended from the words of Our Lord, “ All that take the sword shall perish by the sword ” (St. Matt. xxvi. 52), that society was not permitted to shed blood even in self- defence against malefactors and invaders. (Guiraud, quoted by Jordan, p. 576, l.c.)

The repressive measures were much less severe in practice than in theory, and if, instead of searching the laws to find what heresy was punishable, and what heretics might be molested, we look to history for information as to the dogmatic errors which were actually made the subject of prosecution, we shall find that the heresies which were really hunted to death were those which, when spread abroad among the masses, sowed the seed of religious anarchy, and tended to the ruin and overthrow of the Church and society. In other words, the heresy persecuted was a revolutionary reformist movement.

Summary : The true reason for the repressive measures taken against heretics not to be found in law books or speculative works.—Many authors reason from a too individualistic point of view.—The social explanation is the true one.—The repression then seems natural.— The convictions of the heretic could not arrest the severity of this repression.—A word on the number of the victims.

When we inquire who were the heretics against whom orthodoxy was excited, we begin to understand the true spirit of their long-continued pursuit. In the Middle Ages there was no lack of well-educated men and sagacious politicians ; the common people, too, had their natural good sense and good feeling. The fact that such a society unanimously agreed to wage a war of extermination against heresy warns us that we must not seek for the real motives of the campaign in the temporary irritation of blind fanaticism, or in ex post facto arguments intended, not so much to persuade others as to produce a certain intellectual satisfaction. Nor shall we find in legislative texts, or treatises on procedure, or speculative works, the reasons for the laws which give to a particular epoch its distinctive character. Penal laws, for instance, tell us what acts are prohibited, and what penalties are imposed for the commission of them, but they do not tell us why they are punished so severely : they give us a doctrinal principle, but the facts which led to the enactment of the law are taken for granted, or mentioned without any attempt at proof. In the case we are now considering, a heretic is put on his trial alone, separated from the rest of the party to which he belongs, and the judge who convicts and sentences him seems actuated by a desire to bring him by force to that faith which we consider as the gift of God. A duel is then begun in the name of the law between the judge, assisted by the executioners, and the accused, who is called upon to retract errors which he holds as truths. It is an assault upon the conscience, in which the argument of the stronger is enforced by fear; the man who resists the assault has the air of a hero, punished for his courage and sincerity.

Presented in this form, the proceedings against heresy are repugnant to our reason, our hearts, and even our religion. But this point of view is individualistic, and an important social fact like that of the repression of heresy cannot be understood without an explanation bearing upon the interests of the community.

Let us consider the laws in connection with the circumstances in which they were enacted. What do we see ? First of all the East sees the rise of heresies on the subject of the person and nature of Christ; these heresies are purely theological, but their supporters are turbulent and factious, and their propaganda is not free from violence. The Christian Emperor desires to protect the unity of the Church, first as a matter of duty, and secondly for political reasons. To arrest the contagion, he banishes the innovators, but without making the crime of heresy punishable by death.

In the twelfth and thirteenth centuries the heretics attack the Church, and the moral order which she establishes and maintains. To attack the Church or the State is to threaten the society which is placed under the Pope and the Sovereign, and therefore the Sovereign punishes obstinate heresy with death, his action being anticipated by the verdict of the people. It is a severe measure, but the foregoing observations show us the true object of it, which is not the oppression of an individual conscience, but the defence of the community. Such a heretic, it is true, may be only a misguided person who leaves the Church, without any intention of plotting against her, but he is in too bad company for the Sovereign to feel secure. Heretical conspiracies and the dangers that follow from them make it unavoidable that all heresy should be looked upon as a first step towards conspiracy, and in those days authorities were not content with punishing the assassin, but searched for the error which had supplied him with his weapons ; therefore, as long as Christianity was established by law, the punishment of heresy must have seemed as natural as to-day is the punishment of any attack upon public morality, which was then inseparable from the faith—as natural as will always be the suppression of any attempt to shake the foundations of society. Society in the Middle Ages was founded on religion, as well as on the family and property. We punish the thief because in stealing the goods of another he disturbs the social order and violates a law which exists for the protection of the public. How much more did the fanatical heretic disturb the social peace of our ancestors, and threaten to endanger the welfare of the whole community ! At that time every heretic made men fear a fanatic, as the Russian police suspect a dynamitard in every Nihilist; and when the people attacked a heretic, as a crowd in the United States attacks certain malefactors, they yielded to a natural instinct of self-preservation, even if sometimes they committed acts of regrettable violence.

Will it be said that a heretic was not like a thief, but that he represented a principle or a conscientious conviction ? It would have been hard to make men believe that at that time of religious unity ; moreover, anarchists and conspirators have their convictions, but they are not such as modern judges consider as a reason for acquittal, and the conviction of the heretic was of the same class as these. The agreement of Popes, Princes, and people, to repress heretical apostasy may be explained by motives of social defence, and their action is not difficult to understand. As to the severity of the repression, it must be considered in relation to the manners of the age ; the punishment of death was inflicted for various offences much less dangerous to the society of the Middle Ages than heresy.¹ Lea has the honesty to admit this,¹ and MM. Maillet-Hanquet tell us that “ under the criminal code of Charles V. death was the punishment of blasphemy, magic, sodomy, coining, falsification of weights and measures, and theft, and we find to some extent the same severity in the criminal law of the preceding age.”²

¹ The Abbé Vacandard seems to us to be mistaken as to the opinion of St. Thomas on the subject of the repression of heresy by capital punishment. On this point we share the opinion of M. Marc Dubruel (Nouv. Rev. Théol., 1908, t. 40, p. 66 sqq.). In the passage in which St. Thomas treats formally of capital punishment (2, 2, Q. 64, Arts. 2 and 3), he declares that two conditions are necessary to justify the taking of life—namely, a sufficiently grave offence, and the necessity of punishment for the sake of the community. “ If any man be dangerous to the community, and be corrupting it by any sin, the killing of him for the common good is praiseworthy and wholesome.” The two conditions are found in the article quoted by M. Vacandard : the comparison between corrupting the faith by heresy and the offence of tampering with the coinage shows the gravity of the crime of heresy ; but the Church excommunicates the heretic, and delivers him to the secular arm, in her anxiety to save the innocent ([she provides for the salvation of others]), for fear of a general ruin ([Lest the whole house, lump, body, and livestock burn, be corrupted, putrefy, and perish]). M. Vacandard passes a severe but unmerited condemnation on the thesis and arguments of St. Thomas for having neglected this second condition. He is similarly wrong when he accuses him of mutilating and distorting a passage of St. Augustine. We willingly admit that the great Bishop of Hippo never claimed for the Church the right to kill her rebellious children. St. Thomas makes no such assertion, but he may claim to have the support of St. Augustine to legalize such repression of heresy as the civil judge may think necessary for the good of society, even if it extends to the shedding of blood. The following is the passage quoted : “ The Catholic Church may console herself for the grief caused her by the loss of a few, if this loss brings back the rest and gives security to the multitudes.” And St. Augustine goes on to say : “ Especially as the heretics in question bring about their own death.” But this secondary consideration cannot lessen the force of a general statement. We regret to find the Angelic Doctor the object of such criticism as M. Vacandard has recorded on pp. 206-208, 211, 289, while an author like Lea finds himself rather flattered (pp. vii, viii).

¹ “ We have only to look at the atrocities of the criminal law of the Middle Ages to see how pitiless men were in their dealings with one another ” (op. cit., t. 1, p. 234).

² Op. cit., p. 98.

We believe that no impartial judge would have any difficulty in coming to this conclusion. The interests of the Middle Ages necessitated the repression of heresy ; the manners of the age and the scale of punishments in force render a bloody repression inevitable.

Were the victims of the judicial repression of heresy numerous ? The most absurd figures have everywhere been given, but, on the other hand, general history tells us of rejoicings, feasts, abundance, and general prosperity, during the centuries and in the countries in which the Inquisition exercised its functions. Such statements by themselves contradict the arbitrary estimates that have been made, and in reality, if we take the trouble to draw up an accurate list of the executions and the places where they took place, we shall find that the number is insignificant in comparison with the number of places in which no such repression took place, or little trace is left of it. M. Vacandard says : “ The stake had but comparatively few victims.”¹ Lea had already said : “ I am convinced that the number of victims who actually perished at the stake is considerably less than has been imagined. . . . The records of those evil days have mostly disappeared, and there is now no possibility of reconstructing their statistics ; but if this could be done, I have no doubt that the actual executions by fire would excite surprise by falling far short of the popular estimate.”² He goes on to mention a statement quoted by Dom Brial in his preface to vol. xxi. of the Recueil des Historiens des Gaules, to the effect that Bernard Gui put to death no less than 637 heretics during his service as Inquisitor of Toulouse, and adds : “ Now, that, as we have seen, was the total number of sentences uttered by the tribunal during those years, and of those only forty were capital.”³ M. Jordan remarks that this collection of sentences is the most complete that has been preserved.¹

¹ L’Inquisition, p. 249.

² Op. cit., t. 1, p. 549.

³ Op. cit., p. 550.

¹ Art. cit., 1909, p. 47, n.

Bernard Gui completed the suppression of the Catharist heresy. The second Spanish Inquisition sacrificed a larger number of lives, though it is difficult to say how many. Gams,² whose estimate is moderate, gives a total of about four thousand.

² Die Kirchengeschichte von Spanien, t. 3, pp. 68-76.

The French Reign of Terror in less than three years was responsible for a larger number of victims than all the Inquisitions put together in three centuries.

Summary : The question is not asked to excuse the Church, but it has another practical purpose.—Our explanation is not that accepted by theologians and canonists later than the sixteenth century.—Cause of differences of opinion. Repression of heresy may be ecclesiastical or social and political.—Bloody repression was from the social and political side. It absorbed the ecclesiastical repression.—Proofs.—How the ecclesiastical power, nevertheless, was able to insist on the enforcement of the laws against heresy. — Actual result: to-day heresy is not, even theoretically, punishable with death.

From the thirteenth century obstinate or relapsed heretics incurred the penalty of death, and we know why. We know also the judge who condemned them, and the hand that struck them. It remains to be seen who was the principal author of that severity. Did the secular arm that struck them act in its own name or as the mandatory of the spiritual authority ? Did it serve the religious or the civil society ?

We look upon this as a serious and practical question. Other persons, under the influence of hatred or prejudice, are disposed to look upon it as a mere quibble. They suspect us of wishing only to invent excuses for the Church, and will tell us that we are wasting our time, that they cannot follow us, that the case has been decided. Let us say at once that our object is not to excuse the Church or relieve it of its responsibility. We do not deny the approval that the Popes bestowed on the laws under which heretics were proscribed and punished with death, nor the exhortations they addressed from time to time to the secular Sovereigns to observe and enforce the laws. Whatever may have been the character of the punishment, whether civil or canonical, that approval and those exhortations are enough to create responsibility.

Does not the discussion then become futile ? By no means. To specify the authority for a capital sentence is to discover the law which made it legal, and implicitly to define the cases and circumstances in which it may be, or may have been, legitimate. A full explanation of the past throws light upon the future.

A second observation seems necessary. We have seen, in treating of the right of the sword, how theologians and canonists since the Reformation, impressed by events and influenced by the current of opinions, appear to have exaggerated the repressive jurisdiction of the Church, and especially her original jurisdiction. Our explanation therefore shall not be taken from their works, nor echo their opinions. We doubt also whether the authors of certain pontifical letters¹ have always grasped the real nature of the penalties which they considered justifiable. It often happens that the true explanation of facts and usages is only discovered after the occurrence of the facts to be explained. Moreover, the close union between the two powers lessened the importance of rigorous exactitude, and sometimes led to mistakes. “ Undoubtedly, from an abstract and speculative point of view,” justly remarks Father Choupin,2 “ we may consider heresy under a twofold aspect—as a religious offence or a civil crime. But at that time in practice, in the real concrete order, these two points of view were identical.” It is with the distinctions between the two powers as it is with the very nature of their jurisdiction : they are gradually made clear by discussions and facts. In our own time, also, writers of repute have fallen into opposite errors on this subject. But the canonists and theologians of one period and one country are not the whole Church ; their mistakes do not take away from the significance which the documents possess by themselves, and which has been made clear for us by so many declarations of past ages.¹

¹ It is important to remember that the promise of infallibility covers all acts of teaching by the Pope, where he teaches the whole Church on a point of faith or morals in the exercise of his supreme Apostolic authority, but not the arguments used, still less the motives or subjective reasons which have led to the definitions. That is why a cautious interpreter of such acts attaches much more importance to the exact wording of the definition than he would in the case of civil enactments. The context, though it cannot be put aside altogether, furnishes much less conclusive argument in the former case than in the latter. The Bulls, in which we find the assertion of an indirect temporal power only, may have been issued by Popes who were convinced of their direct temporal power, and, similarly, the idea that certain Popes have formed of the penalties enacted against heretics does not fix the meaning of those penalties if that meaning is not taught in the authoritative decree. 2 L’Inquisition, p. 52.

¹ In some respects those earlier ages resembled our own much more than did the Middle Ages and the commencement of the modern age.

Still less need we trouble ourselves about the manner in which a directory for the use of Inquisitors, composed by a fiery Inquisitor of Aragon and much criticized in his lifetime, understands the prosecution of heresy.² Even if such a work contains no mention of social considerations, and if it enters into minute details on the signs of heresy, what is there to wonder at, and how does it affect our argument ? The Inquisitor was not a secular magistrate, and his duty was essentially to decide on the existence of heresy, and to endeavour to bring convicted heretics back to the Church.

² “ [A keen inquisitor of heretical depravity in the realms of the King of Aragon] ” is the description of Eymeric in Pegna’s preface. “ [That man had many adversaries while he lived],” adds the biographical notice by the same Pegna. In our opinion, M. Jordan gives far too much attention to manuals of procedure.

After these preliminary observations we may now confidently invite our readers to examine calmly and deliberately the question before us—namely, whether heresy was punished by death as a civil or a religious offence.

Certainly the proscription was directed against the religious error itself, and not only against the criminal excesses which followed it. In this respect, as we willingly admit, and have already remarked, there is a difference between the laws of former age ; and those of our own time : the former struck at opinions professed or published,¹ the latter only at offences committed. Yet our question is not answered, for the war against religious error may, as Father Choupin admits, proceed either from the strictly or formally religious or the social and political point of view. Religious error stains the soul, and takes away from it the principle of supernatural life. If it spreads, there is danger of it contaminating other souls; this is the formally religious point of view, and the penalty imposed for voluntary error tends towards the double object contemplated by the Councils—the reformation of the guilty and the preservation of the innocent. From the other point of view, the influence which religious truth exercises on the private relations of citizens among themselves, and the public relations between the Government and its subjects ; the assistance it gives in the performance of all the duties of justice and charity ; the happiness it gives to men at peace with themselves ;¹ the consolidation of public peace, the tightening of social bonds, and all the other blessings which come from unity in religious truth, require that such doctrines as threaten the loss of these blessings should be effectively proscribed. Moreover, these doctrines, by weakening religious authority, endanger that alliance of the two powers on which was based the public order of Christendom. The Church, in fighting against heresy, seeks to provide men with the most abundant means of sanctification. Civil society desires to place at their disposal more elements of order, of social peace, and temporal welfare ; therefore, instead of ordering its repression of false doctrine on the evil effects produced, it punishes the error which contains the germ of those effects.²

¹ Mgr. Douais is right in saying (p. 160) that “ exteriority or publicity was an essential condition of the offence,” and (p. 149) that “ the acts liable to punishment were distinctly outward acts, and it is their publicity which gives them the character of offences.” We cannot deny this without forgetting the old maxim, “ [No one suffers punishment for thought] ” (C. Cogitationis, 14 De Pœnitentia, d. 1), and contradicting a universally accepted principle of jurisprudence (see Reiffenstuel, De Hæreticis, in l. 5, t. 7, n. 235 ; and Schmalzgrueber, eodem, n. 87). And the axiom is not explained by simple want of proof, for ecclesiastical censures which strike the guilty person without the intervention of the judge do not extend to interior acts. Even in the tribunal of sacramental confession the interior act confessed is judged simply as being contrary to the law of God, and does not form the object of reservation or ecclesiastical censure. We cannot agree with the criticism of M. Jordan (loc. cit., t. 9, p. 35). No doubt the Church requires of her children an outward profession of faith, and therefore the Inquisition was entitled to ask for such a profession from persons suspected of heresy ; but suppose the case of a person who simply admits that he has given an interior consent to a heretical proposition : he is not within the cognizance of the ecclesiastical judge, as a person would be who admitted a public discourse or an outward act of heresy.

¹ Experience teaches us how true are the words of Jesus Christ that there is a peace which He alone can give, and the world cannot give. Irreligious socialism excites envy, but can never give contentment; it may raise wages, but it can never remove hatred and malice and all those sentiments which embitter misfortune and alienate sympathy. The Christian in poverty and misfortune has more real peace than the wicked man in the midst of affluence and success.

² M. Jordan seems to have lost sight of this distinction. In the Annales (t. 9, p. 22) he says : “ At the present day certain doctrines are prosecuted because they are dangerous; formerly they were prosecuted because they were false.” Even if this assertion were literally true, it would not be conclusive for the present question. If the falseness of a doctrine is decided to be dangerous, if “ the Inquisition never admitted that error could be inoffensive ” (Jordan, p. 32), the repression of former times might be social as well as that of to-day. Whether the public danger of errors is in their falseness or in the acts to which they lead, the formal principle of repression is not changed : they are prosecuted because they are dangerous ; the prosecution is dictated by considerations of public order ; the motive of the repression is social.

The two possible points of view being thus clearly distinguished, is it difficult to see which of the two dominates the whole history of the bloody repression of heresy ? Under the Roman Empire itself, and under all the systems of government which followed, the heresies treated with the greatest severity were those which were antisocial in character, or those whose extirpation was demanded by political considerations. The Roman law formally declares that it is severe in the public interest, “ because whatever is committed against Divine religion is committed against the right of all.”¹ “ Law and reason command that all wicked men should die, such as those who habitually do evil and consent to evil, such as sodomites and thieves, heretics and traitors, and all wicked men and women.” Thus, the Assizes of Jerusalem² (1170- 1180) placed heretics among thieves and traitors, and by a common reason justified the punishment prescribed against all. Frederic II., in issuing his famous Constitutions, especially declares that he confirms the principle of the Roman law, and ranks heresy amongst the offences against the State.³

¹ C. De Hæreticis, i. 5, l. 4.

² The code of laws framed for the kingdom of Jerusalem at the instance of Godfrey of Bouillon, the Crusader.

³ C. Inconsutilem.

The political and social motives of the repression of heretics are affirmed, for the Roman Empire by Loening,¹ Hinschius,2 and Mommsen ;³ for Castile by Lea;⁴ for the lower Middle Ages and the beginning of the sixteenth century by M. Lonchay;⁵ and it would not be difficult to multiply such proofs.

¹ Op. cit., t. 1, p. 96. 2 Op. cit., t. 4, p. 791.

³ Roman Penal Law, Duquesne’s translation, t. 2, p. 206.

⁴ Op. cit., t. 2, p. 184. “ All this shows that Alfonso and his advisers recognized the duty of the State to preserve the purity of the faith, but that they considered it wholly an affair of the State, in which the Church had no voice beyond ascertaining the guilt of the accused.”

⁵ Les Edits des Princes-évêques, etc., p. 25.

Let us consider the reasons given to justify capital punishment for heresy. The greatest canonists appealed to considerations of public order. “ Obstinate heretics in their impenitence are punished with death, because they disturb the peace and tranquillity of the Republic.”⁶ “The reason of the great severity (death and imprisonment for life) shown to heretics is found in the gravity of this crime, and the immense harm it causes, not only to the Church and religion, but also to the common welfare and the peace of the Republic.”⁷ “ The reason for punishing heretics with death is that heresy is so great a crime, not only against religion, but also against the public peace and tranquillity.”⁸ Finally, Pichler, who considers that the penalty of death is justified both by canon law and civil law, alleges “ the enormity of the crime of heresy, which destroys the faith, the foundation not only of the Christian State, but of eternal salvation. It ruins an incalculable number of souls, and does more than any other crime to disturb the public tranquillity.”¹

⁶ Pirhing, Jus Canon., Comment, in 1. 5, t. 7, n. 92.

⁷ Reiffenstuel, Jus Canon. Universum, Comment, in 1. 5, t. 7, n. 323.

⁸ Schmalzgrueber, Jus Eccl. Universum, in eundem locum, n. 165.

¹ Pichler, in eundem locum, n. 5.

It might be said that these canonists unconsciously feel the insufficiency of purely religious reasons to justify capital punishment, so careful are they to seek the complement of their proof in reasons of social mischief.

It was in its own name and on its own initiative, as history tells us, that the Roman Empire took its strong measures against the Manichæans, and later against the Donatists ; it was on his own authority—he expressly declares it—that Frederic II. prescribed sentence of death by burning against obstinate or relapsed heretics; and that Raymond of Toulouse introduced the same punishment against the Catharists and the Albigenses of the South. The Anabaptists, as we have seen from the testimony of M. Lonchay, were hunted down as public enemies rather than as heretics.

These positive reasons, which seem to us conclusive in themselves, are corroborated by these additional considerations : If heresy was prosecuted to the death as a religious offence, how is it that the magistrate appointed to decide the case from this point of view—that is, the ecclesiastical magistrate —was forbidden to pronounce sentence ?² How is it that the Popes who approved the Constitutions of Frederic II., and pressed for their enforcement, abstained from incorporating them in their canonical collections ? The frankness of the declarations contained in Papal Bulls proves conclusively that they were not really influenced by a desire to save their own reputation for clemency, and, as we have seen, such an attempt would have been ineffective.

² The doctrine which would recognize in the Church the full power of insisting on a sentence of death, and at the same time would oblige the Prince to pass the sentence, at first sight presents an artificial and factitious character which does not belong to the simple truth. According to Gonzales (Comment., 1. 5, t. 7, c. 9, ad abolendam), the Spanish Inquisitor himself passed sentence of death. But the Spanish Inquisitor had a royal commission, and was thus invested with a double jurisdiction. Moreover, Paul IV. and St. Pius V. had, by a special privilege, exempted the Spanish Inquisitors from the penalty of irregularity.

Everything is made clear if capital punishment was legalized and inflicted only from the civil point of view. There was nothing to prevent the Church from recognizing that the same criminal act, as a civil offence, deserved the punishment which she had never prescribed against a religious offence.

Moreover, in our theory, there is another explanation of the plea for mercy which the ecclesiastical judge was directed to make ; even if the condemned person hoped for no good result, the plea served at least to mark the secular character of the punishment. The ecclesiastical judge, in pleading for mitigation, not only showed that he remembered the personal clemency which was suitable to him as the minister of Christ, but he took away from the punishment the strictly ecclesiastical motive.

But what are we to say of the pontifical Constitutions which enjoined upon the secular powers to enforce the rigorous laws enacted against heretics ? Can such an admonition be conceived if the punishment was not meant to satisfy the Church as well as the State ? We must first inquire whether the Popes promulgated these Constitutions as spiritual heads of the Church, or whether they did not rather make use of the political prerogatives which they possessed as Christian Princes, as Sovereigns of certain States, or as collators of the imperial dignity. Not one of the Constitutions quoted was of universal application ; all were limited to Italy and had their origin in the special solicitude which the Popes owed to that country. But even when we consider pontifical Acts properly so called, they create no difficulty to the acceptance of our theory. The Pope may properly declare to Princes what duties are imposed on them by a due regard for the welfare of their subjects or their States; the pontifical injunction that Princes should keep in force the most rigorous laws enacted against heretics did but declare how far the right of the civil power extended,¹ and what, in the existing condition of legislation and according to the customs of the age, was the proper manner for them to fulfil their duty to the Church and to the communities over which they ruled.

¹ The condemnation by Leo X. (May 16, 1520) of the thirty-third proposition of Luther goes no farther than this. The proposition was : “It is contrary to the will of the Holy Ghost to burn heretics ” and, in condemning it, simply affirms that certain heretics in certain circumstances may legitimately be condemned to death by burning. He does not specify the circumstances or the grounds which may justify the sentence, nor the heretics who may deserve it, nor the authority which may pass the sentence. From this condemnation, “ we may conclude with certainty that the sentence of death for heresy is not always necessarily unjustifiable.” See Yves de la Brière, L’Emploi de la Force au Service de la Vraie Religion. Études, October 5, 1911.

All this brings us to the conclusion that in proscribing heresy the Princes acted in the interests of the Church and the Faith ; but in going so far as to pass sentences of death, they protected the social order, of which they had the direct and immediate charge. The same civil repression of obstinate heretics—such, at least, is our opinion—served at the same time the defence of the Church and the defence of the State, just as the ecclesiastical punishments inflicted on penitent heretics safeguarded the interests of spiritual society and civil society. But inasmuch as the secular power legalized and inflicted an irreparable corporal punishment (death or mutilation), it acted in its own name and for the maintenance of public order.

Our reasoning and its conclusion lead to one remarkable result. The religious offence of heresy exists to-day as it did in the past. If you consider it, as such, worthy of capital punishment, you authorize the enemies of the Church to maintain that she holds the sword always suspended over the head of the apostate, and that only her want of power prevents her from striking; and the clamour of disapproval which you will arouse will produce the melancholy result of keeping outside the Church many worn and weary souls that long to live in Catholic unity and truth.

But heresy is no longer the social offence that it once was, because agreement on the subject of religion is no longer at the base of our societies. If, then, the social conditions of a certain period were necessary to explain the severity of the time, the Catholic may say, as well as the unbeliever, that nowadays heresy is not punishable with death. Looking at the change that has taken place in manners and ideas, we may even anticipate that it never will be so again, and may bid a final farewell to punishments which will be henceforth unjust and undeserved.