The History of Civil Tolerance

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.