BERNARD, ST., OF CLAIRVAUX).
But it must be noticed that from the opening years of the 12th century date the beginnings of a decided evolution in the canon law, continuing up to the time of Innocent III., which substi tuted for arbitrary decisions according to circumstances an organ ized and particularized legislation, in which judgment was given secundum canonicas et legitimas sanctiones, Anselm of Lucca and the Panormia attributed to No of Chartres reproduced word for word under the rubric De edicto imperatorum in damnationem hoereticorum, law 5 of the title De liereticis of Justinian's code, which pronounces the sentence of death against the Manichaeans; and we should remember that the Cathari, and in general all heretics in the West in the 11th and 12th centuries were con sidered by contemporary theologians as Manichaeans. Gratian in the Decretum proclaims the views of St. Augustine (exile and fines). From the beginning of the 12th century the death penalty for impenitent heretics was frequently demanded in influential quarters. In 1184 Pope Lucius III. and the emperor Frederick Barbarossa agreed on the penalties of exile, confiscation, demoli tion of their houses, infamia, and loss of civil rights. The usage, then, was already quite clear; but the death penalty had not as yet been inflicted. It was probably Peter II. of Aragon who was the first to decree, in 1197, the punishment of death by burning against the heretics who should not have left his kingdom within a given time. But it was Innocent III. who gave the most power ful impetus to the anti-heretical movement in the secular world by his frequent exhortations (beginning in 1198) to the secular princes (letters of March 25, 1199, and Sept. 22, 1207) .
From the foregoing it is clear that the Inquisition did not arise out of, and at the time of, the crusade against the Albigenses. These executions en masse certainly created a definitive precedent for violent repression, but there was still no regular organization : the council of Tou louse, held in Nov. 1229 by the Roman legate after the treaty of peace, attempted to organize one, and constituted itself the tribunal. But the procedure was still uncertain. The emperor Frederick II. defined his jurisprudence more clearly: from 1220 to 1239, supported by Pope Honorius III., and above all by Gregory IX., he established against the heretics of the Empire in general a legislation in which the penalties of death, banish ment and confiscation of property were formulated so clearly as to be henceforth incontestable. Gregory IX. felt his influence, and also that of the Dominican Guala, bishop of Brescia, who had subjected his episcopal town to the full rigour of the imperial laws. The pope no longer hesitated as to the principle or the degree of repression; but introduced new methods of inquiry and judgment : he created out of the material furnished by the mendicant orders, and especially the Dominicans, the monastic inquisition, which was more elastic, more constant in its activities and more numerous than the inquisition by legate, and better disciplined than the episcopal inquisition. In Nov. 1232 the Dominican Alberic went round Lombardy with the title of Inquis itor haereticae pravitatis. In 1231 a similar commission was given to the Dominicans of Friesach and to the terrible Conrad of Marburg, whose zeal in Germany even exceeded the pope's wishes. In 123,3 Gregory IX. addressed a letter to the bishops in the south of France, in which he announced his intention of employing the preaching friars for the discovery and repression of heresy. The inquisition was now regularly instituted, but its jurisprudence was elaborated by successive additions or limita tions by the force of custom and the detailed prescriptions added by the papal constitutions. The pope's commissioners "in the matter of heresy" at first travelled from place to place. On arriving in a district they addressed its inhabitants, called upon them to confess, if they were heretics, or to denounce those whom they knew to be heretics: a "time of grace" was opened, during which those who freely confessed were dispensed from all penal ties, or only given a light penance; while those whose heresy had been openly manifested were exempted from the penalties of death and perpetual imprisonment. But this time could not exceed one month. After that began the inquisition. As soon as their mission was at an end, and heresy was considered to be stamped out, the inquisitors left the country. Later, inquisitorial districts were formed. The seat of the Inquisition in each district was the monastery of the order (Dominican or Franciscan) to which the inquisitors for that part belonged. There was never any special court or prison : the murus (prison) was lent to the Inquisition by the ecclesiastical or secular authorities. The maintenance of the prisoners and the duty of providing the prison fell in principle upon the bishops (council of Toulouse, 1229), but they tried to evade it. The kings of France, and in particular Louis VIII., granted subsidies to the inquisitors. For each district the inquisi tors were chosen by the provincials of their order, approved or rejected by the pope, and removable by him only. Their dis cretionary powers were absolute. They conducted their interroga tions before two persons (laymen or ecclesiastics) and only pro nounced their sentence after consultation with leading men in the district. This was the only protection for the accused. It was in vain that the civil lawyers tried to prove that the secular authorities had a right to see the documents bearing on the case; the Inquisition always succeeded in setting aside these claims. The share taken in the proceedings by the bishops, the accused or their representatives, though admitted in principle, was as a rule merely illusory.
Bernard Guy (Bernardus Guidonis), Dominican, I261-1331, one of the earliest and most complete exponents of the theory of the Inquisition, admits distinctly that in its procedure multa sunt specialia. The pro cedure was secret and in the highest degree arbitrary, proceeding sine strepitu et figura judicii, its object being to ascertain not so much particular offences as tendencies: the murderers of the inquisitor Peter Martyr (Dominican, d. 1252) were tried, not as assassins, but as guilty of heresy and adversaries of the Inqui sition; and on the other hand, external acts of piety and verbal professions of faith were held of no value. Moreover, the Inqui sition was not bound by the ordinary rules of procedure in its inquiries : the accused was surprised by a sudden summons, and as a rule imprisoned on suspicion. All the accused were pre sumed to be guilty, the judge being at the same time the accuser. Absence was naturally considered as contumacy, and only increased the presumption of guilt by seeming to admit it. The accused had the right to demand a written account of the offences attributed to him, but the names of the witnesses were with held from him (Innocent IV. ; bulls Cum negocium and Licet sicut accepimus), he did not know who had denounced him, nor what weight was attached by the judges to the denunciations against him. The utmost that was allowed him was the unsatis factory privilege of the recusationes divinatrices, i.e., at his first examination he was asked for the names of any enemies of whom he knew, and the causes of their enmity. Heretics or persons deprived of civil rights (infames) were admitted as witnesses in cases of heresy. Women, children or slaves could be witnesses for the prosecution, but not for the defence, and cases are even to be found in which the witnesses were only ten years of age. Langhino Ugolini states that a witness who should retract his hostile evidence should be punished for false witness, but that his evidence should be retained, and have its full effect on the sen tence. No witness might refuse to give evidence, under pain of being considered guilty of heresy. The prosecution went on in the utmost secrecy. The accused swore that he would tell the whole truth, and was bound to denounce all those who were partners of his heresy, or whom he knew or suspected to be heretics. If he con fessed, and denounced his accomplices, relatives or friends, he was "reconciled" with the Church, and had to suffer only the humiliating penalties prescribed by the canon law. If further examination proved necessary, it was continued by various methods. Bernardus Guidonis enumerates many ways of obtaining confessions, sometimes by means of moral subterfuges, but sometimes by a process of weakening the physical strength. And as a last expedient torture was resorted to. The Church was originally opposed to torture, and the canon law did not admit confessions extorted by that means; but by the bull Ad extir panda (1 2 5 2) Innocent IV. approved its use for the discovery of heresy, and Urban IV. confirmed this usage, which had its origin in secular legislation (cf. the Veronese Code of 1228, and Sicilian Constitution of Frederick II. in 1231) . In 1312 excessive cruelty had to be suppressed by the council of Vienna. The next step was the torture of witnesses, a practice which was left to the discretion of the inquisitors. Moreover, all confessions or depositions extorted in the torture-chamber had subsequently to be "freely" confirmed.
The procedure was of course not litigious; any lawyer defend ing the accused would have been held guilty of heresy. The inquiry might last a long time, for it was interrupted or resumed accord ing to the discretion of the judges, who disposed matters so as to obtain as many confessions or denunciations as possible. After the different phases of the examination, the accused were divided into two categories : (i) those who had confessed and abjured, (2) those who had not confessed and were convicted of heresy. There was a third class, by no means the least numerous, namely, those who having previously confessed and abjured had relapsed into error. Next came the moment of the sentence : "there was never any case of an acquittal pure and simple" (H. C. Lea). The formula for full and complete acquittal given by Bernardus Guidonis in his Practica, should, he says, never or very rarely be employed. The sentences were solemnly pronounced on a Sunday, in a church or public place, in the presence of the inquis itors, their auxiliaries, the bishops, the secular magistrates and the people. This was the sermo generalis. The accused who had confessed were reconciled, and the penalties were then pronounced; these were, in order of severity, penances, fasting, prayers, pil grimages, public scourging, the compulsory wearing on the breast or back of crosses of yellow felt sewn on to the clothes or some times of tongues of red, letters, etc. The inquisitors eventually acquired the right of inflicting fines at discretion. In 1244 and 1251 Innocent IV. reproved them for their exactions. All these minor penalties could be commuted for payments in money in the same way as absolution from the crusader's vow, and the council of Vienna tried to put an end to these extortions. Beyond these minor penalties came the severer ones of imprisonment for a period of time, perpetual imprisonment and imprisonment of various degrees of severity (murus largus, murus strictus vel strictissimus). The murus strictus consisted in the deepest dun geon, with single or double fetters, and "the bread and water of affliction"; but the severity of the prison regime varied very much. The murus largus, especially for a rich prisoner, amounted to a fairly mild imprisonment, but the mortality among those confined in the murus strictus became so high that Clement V. ordered an inquiry to be made into the prison regime in Langue doc, in spite of Bernard Guy's protest against the investiga tion as likely to diminish the prestige of the inquisitors. After the sentences had been pronounced, the obstinate heretics and renegades were for the last time called upon to submit and to confess and abjure. If they consented, they were received as penitents, and condemned on the spot to perpetual imprisonment ; if they did not consent, they were handed over to the secular arm. When the heretic was handed over to the secular arm the agents of the secular power were recommended to punish him debita animadversione, and the form of recommending him to mercy was gone through. In effect, handing over to the secular arm was equivalent to a sentence of death, and of death by fire. Jacob Sprenger, Dominican provincial in Germany (1494) and inquisitor, does not hesitate to speak of the victims quas inane rani f ecimus ("whom we [the inquisitors] caused to be burnt to ashes"). But we must accept the conclusions of H. C. Lea and Vacandard that comparatively few people suffered at the stake in the mediaeval Inquisition. Between 1308 and 1323, Bernard Guy, who cannot be accused of inactivity, only handed over to the secular arm 42 persons, out of 93o who were convicted of heresy.
From the point of view of jurisprudence of the Inquisition, the confiscation of the condemned man's property by the ecclesiastical and secular powers is only the accompaniment to the more severe penalties of perpetual imprisonment or death ; but from the point of view of its economic history the importance of the confiscation is supreme. The practice originated in the Roman law, and all secular princes had already, in their own interest, recognized it as law ful (Frederick Barbarossa, Decree of Verona; Louis VIII., ordi nances of 1226, 1229; Louis IX., ordinance of 1234; Raymond VII. of Toulouse, etc.). In the kingdom of France there was a special official, the procureur des encours (confiscation in the matter of heresy), whose duty it was to collect the personal prop erty of the heretics, and to incorporate their landed estates in the royal domain; in Languedoc crying abuses arose, especially under Alphonse of Poitiers. Soon the papacy managed to gain a share of the spoils, even outside the states of the Church, as is shown by the bulls ad extirpanda of Innocent IV. and Alexander IV., and henceforward the inquisitors had, in varying proportions, a direct interest in these spoliations. In Spain this division only applied to the property of the clergy and vassals of the Church, but in France, Italy and Germany, the property of all heretics was shared between the lay and ecclesiastical authorities. Venice alone decided that all the receipts of the Holy Office should be handed over in full to the state. Clement V., in his attempted reform and regularization of inquisitorial procedure, endeavoured to reduce the confiscations to a fairly reasonable minimum, and in r337-38 a series of papal inquiries was held into this financial aspect of the matter. The Assize of Clarendon, the Constitutions of Frederick II. (1 23 2) and of Count Raymond of Toulouse (1234) had also come to a joint decision with the councils on this question. Charles V. of France prevailed upon the papacy to abolish this regulation (1378). Confiscation was, indeed, most profitable to the secular princes, and there is no doubt that the hope of considerable gain was what induced many princes to uphold the inquisitorial administration, especially in the days of the decay of faith. The resistance of the south of France to the Capetian monarchs was to a large extent broken owing to the decimation of the bourgeoisie by the Inquisition and their impoverishment by the extortions of the encours. The same was the case in certain of the Italian republics; while in districts such as the north of France, where heretics were both poor and few, the Inquisition did not easily take root, nor did it prove very profitable. These confiscations, the importance of which in the political and economic history of the middle ages was first shown fully by H. C. Lea, were a constant source of uncertainty in transactions of all kinds; there was, for instance, always a risk in entering into a contract in a place where the existence of heretics was suspected, since any contract entered into with a heretic was void. Nor was there any more security in the trans mission of inheritances for posthumous trials were frequent ; the Liber sententiarum inquisitionis of Bernardus Guidonis (1307-23) records sentences pronounced after death against 89 persons during a period of 15 years. But not only was their property confiscated and their heirs disinherited ; they were subject to still further penalties. Frederick II. extended to heresy the application of the Roman law disqualifying from holding office, and even included under its operation the children and grandchildren of the guilty man. Alexander IV. and Boniface VIII. lightened the severity of this law, and removed certain disqualifications, notably in the case of ecclesiastical offices and property.
The sphere of action of the Inquisition was gradually extended by the theologians and casuists until sorcery and magic ranked with doctrinal heresy (see Hansen, Inquisition, Hexenwahn, u. Hexenverfolgung, 1900). With regard to Jews, they might profess their religion and observe its rites without being in a state of heresy; they were only heretic when they attacked the Christian faith or community, made proselytes, or returned to Judaism after being converted. But those who practised usury were "sus pected of not holding orthodox doctrine as to theft" (Vacandard), and on this account the Inquisition gained a hold on them (the special case of Spain is described on page 381).
