A History of the Inquisition In The Middle Ages.
By Henry Charles Lea - 1888
Chapter X. Evidence
We have seen in the foregoing chapter the inevitable tendency of the inquisitorial process to assume the character of a duel between the judge and the accused with the former as the assailant. This deplorable result was the necessary outcome of the system and of the task imposed upon the inquisitor. He was required to penetrate the inscrutable heart of man, and professional pride perhaps contributed as much as zeal for the faith in stimulating him to prove that he was not to be baffled by the unfortunates brought before him in judgment.
In such a struggle as this the testimony of witnesses, for the most part, counted for little except as a basis for arrest and prosecution, and for threatening the accused with the unknown mass of evidence against him, and for this the slightest breath of scandal, even from a single person notoriously foul-mouthed, sufficed, without calling witnesses.
The real battlefield was the prisoner's conscience, and his confession the prize of victory. Yet the subject of evidence as treated by the Inquisition is not wholly to be passed over, for it affords fresh illustration of the manner in which the practice of construing everything "in favor of the faith" led to the development of the worst body of jurisprudence invented by man, and to the habitual perpetration of the foulest injustice. The matter-of-course way in which rules destructive of every principle of fairness are laid down by men presumably correct in the ordinary affairs of life affords a wholesome lesson as to the power of fanaticism to warp the intellect of the most acute.
This did not arise from any peculiar laxity of practice in the ordinary ecclesiastical courts. Their procedure, based upon the civil law, accepted and enforced its rules as to the admission of evidence, and the onus of proof lay upon the assertor of a fact.
Vagueness Of Testimony
Innocent III., in his instructions as to the Cathari of La Charitã, reminded the local authorities that even violent presumptions were not proof, and were insufficient for condemnation in a matter so heinous--a rule which was embodied in the canon law, where it became for the inquisitors merely an excuse for obtaining certitude by extorting confession.
How completely they felt themselves emancipated from all wholesome restraint is shown by the remarks of Bernard Gui--"The accused are not to be condemned unless they confess or are convicted by witnesses, though not according to the ordinary laws, as in other crimes, but according to the private laws or privileges conceded to the inquisitors by the Holy See, for there is much that is peculiar to the Inquisition.
From almost the inception of the Holy Office there was an effort to lay down rules as to what constituted evidence of heresy; but the Council of Narbonne, in 1244, winds up an enumeration of the various indications by saying that it is sufficient if the accused can be shown to have manifested by any word or sign that he had faith or belief in heretics or considered them to be "good men" (bos homes). The kind of testimony received was as flimsy and impalpable as the facts, or supposed facts, sought to be proved. In the voluminous examinations and depositions which have reached us from the archives of the Inquisition we find the witnesses allowed and encouraged to say everything that may occur to them. Great weight was attached to popular report or belief, and to ascertain this the opinion of the witness was freely received, whether based on knowledge or prejudice, hearsay evidence, vague rumors, general impressions, or idle gossip.
Everything, in fact, that could affect the accused injuriously was eagerly sought and scrupulously written down. In the determined effort to ruin the seigneurs de Niort, in 1240, of the one hundred and eight witnesses examined scarce one was able to speak of his own knowledge as to any act of the accused. In 1254 Arnaud Baud of Montrãal was qualified as "suspect" of heresy because he continued to visit his mother and aided her in her need after she had been hereticated, though there was absolutely nothing else against him; only delivering her up to be burned would have cleared him. It became, in fact, a settled principle of law that either husband or wife knowing the other to be a heretic and not giving information within a twelvemonth was held to be a consenting party without further evidence, and was punishable as a heretic.
Naturally the conscientious inquisitor recognized the vicious circle in which he moved and sought to satisfy himself that he could designate infallible signs which would justify the conclusion of heresy. There is ample store of such enumerated. Thus for the Cathari it sufficed to show that the accused had venerated one of the perfected, had asked a blessing, had eaten of the blessed bread or had kept it, had been voluntarily present at an heretication, had entered into the covenansa to be hereticated on the death-bed, etc.
For the Waldenses such indications were considered to be the confessing of sins to and accepting penance from those known not to be regularly ordained by an orthodox bishop, praying with them according to their rites by bending the knees with them on a bench or other inclined object, being present with them when they pretended to make the Host, receiving "peace" from them, or blessed bread. All this was easily catalogued, but beyond it lay a region of doubt concerning which authorities differed. The Council of Albi, in 1254, declared that entering a house, in which a heretic was known to be, converted simple suspicion into vehement; and Bernard Gui mentions that some inquisitors held that visiting heretics, giving them alms, guiding them in their journeys, and the like was sufficient for condemnation, but he agrees with Gui Foucoix in not so considering it, as all this might be done through carnal affection or for hire.
The heart of man, he adds, is deep and inscrutable, but he seeks to satisfy himself for attempting the impossible by arguing that all which cannot be explained favorably must be admitted as adverse proof. It is a noteworthy fact that in long series of interrogations there will frequently be not a single question as to the belief of the party making confession. The whole energy of the inquisitor was directed to obtaining statements of external acts. The upshot of it all necessarily was that almost everything was left to the discretion of the inquisitor, whose temper had more to do with the result than the proof of guilt or its absence.
How insignificant were the tokens on which a man's fate might depend may be understood by a single instance. In 1234 Accursio Aldobrandini, a Florentine merchant in Paris, made the acquaintance of some strangers with whom he conversed several times, giving their servant on one occasion ten sols, and bowing to them when they met, out of politeness. This latter act was equivalent to the "veneration" which was the crucial test of heresy, and when he chanced to learn that his new acquaintances were heretics he felt himself lost.
Hastening to Rome, he laid the matter before Gregory IX., who exacted bail of him and sent a commission to the Bishop of Florence to investigate the antecedents of Accursio. The report was examined by the cardinals of Ostia and Preneste and found to be emphatic in commending his orthodoxy, so he escaped with a penance prescribed by Raymond of Pennaforte, the papal penitentiary, and Gregory wrote to the inquisitors of Paris not to molest him. Under such a system the most devout Catholic could never feel safe for a moment.
Suspicion Of Heresy
Yet in spite of all these efforts to define the indefinable, it was in the very nature of things that absolute certitude could not, in a vast range of cases, be reached except through confession. In order, therefore, to avert the misfortune of acquitting those who could not be brought to confess, it became necessary to invent a new crime--that known as "suspicion of heresy."
This opened a wide field for the endless subtleties and refinements in which the jurists of the schools delighted, rendering their so-called science of law a worthy rival of scholastic theology. Suspicion thus was primarily divided into three grades, designated as light, vehement, and violent, and the glossators revel in defining the amount and quality of evidence which renders the accused guilty of either of these, with the usual result that practically the matter was left to the discretion of the tribunal.
That a man against whom nothing substantial was proved should be punished merely because he was suspected of guilt may seem to modern eyes a scant measure of justice; but to the inquisitor it appeared a wrong to God and man that any one should escape against whose orthodoxy there rested a shadow of a doubt. Like much else taught by the Inquisition, this found its way into general criminal law, which it perverted for centuries.
Two witnesses were usually assumed to be necessary for the condemnation of a man of good repute, though some authorities demanded more. Yet when a case threatened to fail for lack of testimony, the discretion of the inquisitor was the ultimate arbitrator; and it was agreed that if two witnesses to the same fact could not be had, single witnesses to two separate facts of the same general character would suffice. When there was only one witness in all, the accused was still put on his purgation. With the same determination to remove all obstacles in the way of conviction, if a witness revoked his testimony it was held that if his evidence had been favorable to the accused, the revocation annulled it; if adverse, the revocation was null.
The same disposition to construe everything in favor of the faith governed the admissibility of witnesses of evil character. The Roman law rejected the evidence of accomplices, and the Church had adopted the rule. In the False Decretals it had ordered that no one should be admitted as an accuser who was a heretic or suspected of heresy, was excommunicate, a homicide, a thief, a sorcerer, a diviner, a ravisher, an adulterer, a bearer of false witness, or a consulter of diviners and soothsayers. Yet when it came to prosecuting heresy all these prohibitions were thrown to the winds. As early as the time of Gratian, infamous and heretical witnesses were receivable against heretics. The edicts of Frederic II. rendered heretics incapable of giving testimony, but this disability was removed when they testified against heretics.
Character And Age Of Witnesses
In the lay courts, if a witness swore to the innocence of the accused and subsequently changed his testimony, the first statement was held good and the second was rejected, but in cases of heresy the incriminating evidence was always received.
That there was some hesitation on this point we see in the Legatine Inquisition held in Toulouse in 1229, where it is recorded that Guillem Solier, a converted heretic, was restored in fame in order to enable him to bear witness against his former associates, and even as late as 1260 Alexander IV. was obliged to reassure the French inquisitors that they could safely use the evidence of heretics; but the principle became a settled one, adopted in the canon law, and constantly enforced in practice. Without it, in fact, the Inquisition would have been deprived of its most fruitful means of tracking heretics. It was the same with excommunicates, perjurers, infamous persons, usurers, harlots, and all those who, in the ordinary criminal jurisprudence of the age, were regarded as incapable of bearing witness, yet whose evidence was receivable against heretics. All legal exceptions were declared inoperative except that of mortal enmity.
In the ordinary criminal law of Italy no evidence was received from a witness under twenty, but in cases of heresy such testimony was taken, and, though not legal, it sufficed to justify torture. In France the distinction seems to have been less rigidly defined, and the matter probably was left, like so much else, to the discretion of the inquisitors. As the Council of Albi specifies seven years as the period at which all children were ordered to be made to attend church and learn the Creed, Paternoster, and Salutation to the Virgin, it may be safely assumed that below that age they would hardly be admitted to give testimony. In the records of the Inquisition the age of the witness is rarely stated, but I have met with one case, in 1244, after the capture of the pestilent nest of heretics at Montsãgur, where the Inquisition gathered so goodly harvest, when the age of a witness, Arnaud Olivier, happens to be mentioned as ten years.
He admitted having been a Catharan "believer" since he had reached the age of discretion, and thus was responsible for himself and others. His evidence is gravely recorded against his father, his sister, and nearly seventy others; and in it he is made to give the names of sixty-six persons who were present about a year before at the sermon of a Catharan bishop. The wonderful exercise of so young a memory does not seem to have excited any doubts as to the validity of his testimony, which must have been held conclusive against the unfortunates enumerated, as he stated that they all "venerated" their prelate.
Wives and children and servants were not admitted to give evidence in favor of the accused, but their testimony if adverse to him was welcomed, and was considered peculiarly strong. It was the same with the heretic, who, as we have seen, was freely admitted as an adverse witness, but who was rejected if appearing for the defence. In short, the only exception which could be taken to an accusing witness was malignity. If he was a mortal enemy of the prisoner it was presumed that his testimony was rather the prompting of hate than zeal for the faith, and it was required to be thrown out. In the case of the dead, the evidence of a priest that he had shriven the defunct and administered the viaticum went for nothing; but if he testified that the departed had confessed to being a heretic, had recanted, and had received absolution, then his bones were not exhumed and burned, but the heirs had to endure such penance of fine or confiscation as would have been inflicted on him if alive.
Of course no witness could refuse to give evidence. No privilege or vow or oath released him from the duty. If he was unwilling and paltered or prevaricated and equivocated, there was the gentle persuasion of the torture-chamber, which, as we have seen, was even more freely used on witnesses than on principals. It was the ready instrument by which any doubts as to the testimony could be cleared up; and it is fair to attribute to the sanction of this terrible abuse by the Inquisition the currency which it so long enjoyed in European criminal law. Even the secrecy of the confessional was not respected in the frenzied effort to obtain all possible information against heretics.
Names Of Witnesses Withheld
All priests were enjoined to make strict inquiries of their penitents as to their knowledge of heretics and fautors of heresy. The seal of sacramental confession could not be openly and habitually violated, but the result was reached by indirection. When the confessor succeeded in learning anything he was told to write it down and then endeavor to induce his penitent to reveal it to the proper authorities. Failing in this, he was, without mentioning names, to consult God-fearing experts as to what he ought to do--with what effect can readily be conjectured, since the very fact of consulting as to his duty shows that the obligation of secrecy was not to be deemed absolute.
After this glimpse at the inquisitorial system of evidence, we hardly need the assurance of the legists that less was required for conviction in heresy than in any other crime, and inquisitors were instructed that slender testimony was sufficient to prove it--"probatur quis hÅ“reticus ex levi causa." Yet evil as was all this, the crowning infamy of the Inquisition in its treatment of testimony was withholding from the accused all knowledge of the names of the witnesses against him. In the ordinary courts, even in the inquisitorial process, their names were communicated to him along with the evidence which they had given, and it will be remembered that when the Legate Romano held his inquest at Toulouse, in 1229, the accused followed him to Montpellier with demands to see the names of those who had testified against them, when the cardinal recognized their right to this, but eluded it by showing merely a long list of all the witnesses who had appeared during the whole inquest, giving as an excuse the danger to which they were exposed from the malevolence of those who had suffered by their evidence.
That there was some risk incurred by those who destroyed their neighbors is true; the inquisitors and chroniclers mention that assassinations from this cause sometimes occurred--six being reported in Toulouse between 1301 and 1310. It would have been strange had this not been the case, nor was the chance of such wild justice altogether an unwholesome check upon the security of malevolence. Yet that so flimsy an excuse should have been systematically put forward shows merely that the Church recognized and was ashamed of its plain denial of justice, since no such precaution was deemed necessary in other criminal affairs. Already in 1244 and 1246 the councils of Narbonne and Bãziers order the inquisitors not to indicate in any manner the names of the witnesses, alleging as a reason the "prudent wish" of the Holy See, although in the instructions of the Cardinal of Albano the saving clause of risk is expressed.
When Innocent IV. and his successors regulated the inquisitorial procedure, the same limitation to cases in which divulging the names would expose the witnesses to danger was sometimes omitted and sometimes repeated, and when Boniface VIII. embodied in the canon law the rule of withholding the names he expressly cautioned bishops and inquisitors to act with pure intentions, not to withhold the names when there was no peril in communicating them, and if the peril ceased they were to be revealed. Yet it is impossible to regard all this as more than a decent veil of hypocrisy to cover recognized injustice, for it was a flagrant fact that inquisitors everywhere treated these exhortations as the councils of Narbonne and Bãziers had treated the limitations prescribed by the Cardinal of Albano. Although in the inquisitorial manuals the limitation of risk is usually mentioned, the instructions with regard to the conduct of the trials always assume as a matter of course that the prisoner is kept in ignorance of the names of the witnesses against him. As early as the time of Gui Foucoix that jurist treats it as the universal practice; a nearly contemporary MS. manual lays it down as an invariable rule; and in the later periods we are coolly informed by both Eymerich and Bernardo di Como that cases were rare in which risk did not exist; that it was great when the accused was rich and powerful, but greater still when he was poor and had friends who had nothing to lose.
Eymerich evidently considers it much more decent to refuse the names than to adopt the expedients of some over-conscientious inquisitors who furnished, like Cardinal Romano, the names written on a different piece of paper and so arranged that their identification with their evidence was impossible, or who mixed up other names with those of the witnesses so as to confuse hopelessly the defence. Occasionally a less disreputable but almost equally confusing plan was adopted, in swearing a portion of the witnesses in the presence of the accused, while examining them in his absence. Thus in the trial of Bernard Dãlicieux, in 1319, out of forty-eight witnesses whose depositions are recorded, sixteen were sworn in his presence; in that of Huss, in 1414, it is mentioned that fifteen witnesses at one time were taken to his cell that he might see them sworn.
From this withholding of names it was but a step to withholding the evidence altogether, and that step was sometimes taken. In truth the whole process was so completely at the arbitrary discretion of the inquisitor, and the accused was so wholly without rights, that whatever seemed good in the eyes of the former was allowable in the interest of the faith. Thus we are told that if a witness retracted his evidence, the fact should not be made known to the defendant lest it should encourage him in his defence, but the judge is recommended to bear it in mind when rendering judgment.
The tender care for the safety of witnesses even went so far that it was left to the conscience of the inquisitor whether or not to give the accused a copy of the evidence itself if there appeared to be danger to be apprehended from doing so. Relieved from all supervision, and practically not subject to appeals, it may be said that there were no rules which the inquisitor might not suspend or abrogate at pleasure when the exigencies of the faith seemed to require it.
Among the many evils springing from this concealment, which released witnesses and accusers from all responsibility, not the least was the stimulus which it afforded to delation and the temptation created to gratify malice by reckless perjury. Even without any special desire to do mischief, an unfortunate, whose resolution had been broken down by suffering and torture, when brought at last to confess, might readily be led to make his story as satisfactory as possible to his tormentors by mentioning all names that might occur to him as being present at conventicles and heretications.
There can be no question that the business of the Inquisition was greatly increased by the protection which it thus afforded to informers and enemies, and that it was made the instrument of an immense amount of false-witness. The inquisitors felt this danger and frequently took such precautions as they could without trouble, by warning a witness of the penalties incurred by perjury, making him obligate himself in advance to endure them, and rigidly questioning him as to whether he had been suborned.
Occasionally, also, we find a conscientious judge like Bernard Gui carefully sifting evidence, comparing the testimony of different witnesses, and tracing out incompatibilities which proved that one at least was false. He accomplished this twice, once in 1312 and again in 1316, the earlier case presenting some peculiar features. A man named Pons Arnaud came forward spontaneously and accused his son Pierre of having endeavored to have him hereticated when laboring under apparently mortal sickness. The son denied it. Bernard, on investigation, found that Pons had not been sick at the date specified, and that there had been no heretics at the place named. Armed with this information he speedily forced the accuser to confess that he had fabricated the story to injure his son.
Creditable as is this case to the inquisitor, it is hideously suggestive of the pitfalls which lay around the feet of every man; and no less so is an instance in which Henri de Chamay, Inquisitor of Carcassonne, in 1329, resolutely traced out a conspiracy to ruin an innocent man, and had the satisfaction of forcing five false-witnesses to confess their guilt. Rare instances such as these, however, offered but a feeble palliation for the inherent vices of the system, and in spite of the severe punishment meted out to those who were discovered, the crime was of very frequent occurrence.
The security with which it could be committed renders it safe to assume that detection occurred in a very small proportion of the cases; so when among the scanty documents that have reached us we see six false-witnesses (of whom two were priests and one a clerk), sentenced at an auto de fã held at Pamiers in 1323; four at Narbonne in December, 1328; one, a few weeks after, at Pamiers; four more at Pamiers in January, 1329, and seven (one of whom was a notary) at Carcassonne in September, 1329, we may conclude that if the full records of the Inquisition were accessible, the list would be a frightful one, and would suggest an incalculable amount of injustice which remained undiscovered. We do not need the admission of Eymerich that witnesses are found frequently to conspire together to ruin an innocent man, and we may well doubt his assurance that persistent scrutiny by the inquisitor will detect the wrong. There is, perhaps, only a consistent exhibition of inquisitorial logic in the dictum of Zanghino, that a witness who withdraws testimony adverse to a prisoner is to be punished for false-witness, while his testimony is to stand, and to receive full weight in rendering judgment.
A false-witness, when detected, was treated with as little mercy as a heretic. As a symbol of his crime two pieces of red cloth in the shape of tongues were affixed to his breast and two to his back, to be worn through life. He was exhibited at the church-doors on a scaffolding during divine service on Sundays, and was usually imprisoned for life.
The symbol was changed to that of a letter in the case of Guillem Maurs, condemned in 1322 for conspiring with others to forge letters of the Inquisition whereby some parties were to be cited for heresy with the view of extorting hush-money from them. As the degree of criminality varied, so there were differences in the severity of punishment. Those condemned in Pamiers in 1323 were let off without incarceration. The four at Narbonne, in 1328, were regarded as peculiarly culpable, having been suborned by enemies of the accused, and they were accordingly condemned to the severest form of imprisonment, on bread and water, with chains on hands and feet. The assembly of experts held at Pamiers for the auto of January, 1329, decided that, in addition to imprisonment, either lenient or harsh, according to the gravity of the offence, the offenders should make good any damage accruing to the accused.
This was an approach to the talio, and the principle was fully carried out in 1518 by Leo X. in a rescript to the Spanish Inquisition, authorizing the abandonment to the secular arm of false witnesses who had succeeded in inflicting any notable injury on their victims. The expressions used by the pope justify the conclusion that the crime was still frequent. Zanghino tells us that in his time there was no defined legal penalty, and that the false witness was to be punished at the discretion of the inquisitor--another instance of the tendency which pervades the whole inquisitorial jurisprudence, to fetter the tribunals with as few rules as possible, to clothe them with arbitrary power, and trust to God, in whose name and for whose glory they professed to act, to inspire them with the wisdom necessary for the discharge of their irresponsible trust.