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 INQUISITION

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INQUISITION

1224 there was no imperial law ordering, or pre-suppos- ing as legal, the burning of heretics. The rescript for Lombardy of 1224 (Mon. Germ., II, 252; cf. ibid., 2SS) is accordingly the first law in which death by firo is contemplated (cf. Ficker, op. cit., 19(5). That Honorius III was in any way concerned in the drafting of this ordinance cannot be maintained; indeed the emperor was all the less in need of papal inspiration as the burning of heretics in Germany was then no longer rare; his legists, moreover, would certainly have directed the emperor's attention to the ancient Roman Law that punished high treason with death, and Manichseism in particular with the stake. The imperial rescripts of 1220 and 1224 were adopted into ecclesiastical criminal law in 1231, and were soon ap- plied at Rome. It was then that the Inquisition of the Middle Ages came into being.

What was the immediate provocation? Contem- porary soiu'ces afford no positive answer. Bishop Douais, who perhaps commands the original contem- porary material better than anyone, has attempted in his latest work (L'Inquisition. Ses Origines. Sa Pro- cedure, Paris, 1906) to explain its appearance by a supposed anxiety of Gregory IX to forestall the en- croachments of Frederick II in the strictly ecclesias- tical province of doctrine. For this purpose it would seem necessary for the pope to establish a distinct and specifically ecclesiastical court. From this point of view, though the hypothesis cannot be fully proved, much is iutelUgilile that otherwise remains obscure. There was doubtless reason to fear such imperial en- croachments in an age yet filled with the angry con- tentions of the Imperium and the Saccrdotium. We need only recall the trickery of the emperor and his pretended eagerness for the purity of the Faith, his increasingly rigorous legislation against heretics, the numerous executions of his personal rivals on the pre- text of heresy, the hereditary passion of the Hohen- staufen for supreme control over Church and State, their claim of God-given authority over both, of responsibility in both domains to God and God only, etc. What was more natural than that the Church should strictly reserve to herself her own sphere, while at the same time endeavouring to avoid giving offence to the emperor? A purely spiritual or papal religious tribunal would secure ecclesiastical liberty and author- ity, for this court could be confided to men of expert knowledge and blameless reputation, and above all to independent men in whose hands the Church coukl safely trust the decision as to the orthodoxy or hetero- doxy of a given teaching. On the other hand, to meet the emperor's wishes as far as allowable, the penal code of the empire could be taken over as it stood (cf . Audray, "Regist. de Gregoire IX", n. 535).

(2) The New Tribunal. — (a) Its essential charac- teristic. — The pope did not establish the Inqui- sition as a distinct and separate tribunal; what he did was to appoint special but permanent judges, who executed their doctrinal functions m the name of the pope. Where they sat, there was the Inquisition. It must be carefully noted that the characteristic feature of the In(|uisiti(>n was not its peculiar procedure, nor the secret cxaniiii.ition of witnesses anederick Barbarossa. Nor again was it the torture, which was not prescribed or even allowed for decades after the beginning of the IiKiiiisition, nor, finally, the vari- ous sanctions, iiriprisonnirnt, confiscation, the stake, etc., all of whieli inmisljtncnts were usual long before the Inquisition. The IiKiuisitor. strictly speaking, was a special but permanent judge, acting in the name of the pope and clothed by him with the right and the duty to deal legally with offences against the

Faith; he had, however, to adhere to the established rules of canonical procedure and pronounce the cus- tomary penalties.

Many regarded it as providential that just at this time sprang up two new orders, the Dominicans and the Franciscans, whose members, by their superior theological training and other characteristics, seemed eriiinently fitted to perform the inc|uisitorial task with entire success. It was safe to assume that they were not merely endowed with the requisite knowl- edge, but that they would also, quite unselfishly and uninfluenced by worldly motives, do solely what seemed their duty for the good of the Church. In addition, there was reason to hope that, because of their great popularity, they would not encounter too much opposition. It seems, therefore, not unnatural that the inquisitors should have been chosen by the popes prevailingly from these ortiers, especially from that of the Dominicans. It is to be noteil, howc\'er, that the inquisitors were not chosen exclusively from the mentlicant orders, though the Senator of Rome no doubt meant such when in his oath of office (1231) he spoke of inquisitores datos iib ecdcsia. In his de- cree of 1232 Frederick II calls them inquisitores ab apostolica side dntos. The Dominican Alberic, in November of 1232, went through Lombardy as in- quisitor liiTrcticie pravitdtis. The prior and sub-prior of the Dominicans at Friesbach were given a similar commission as early as 27 November, 1231; on 2 December, 1232, the convent of Strasburg, and a little later the convents of Wiirzburg, Ratisbon, and Bremen, also received the commission. In 1233 a rescript of Gregory IX, touching these matters, was sent simultaneously to the bishops of Southern France and to the priors of the Dominican Order. We know that Dominicans were sent as inquisitors in 1232 to Germany along the Rhine, to the Diocese of Tarragona in Spain, and to Lombardy; in 1233 to France, to the territory of Auxerre, the ecclesiastical provinces of Bourges, Bortleaux, Narbonne, and Auch, and to Burgundj'; in 1235 to the ecclesiastical province of Sens. In fine, about 1255 we find the Inquisition in full activity in all the countries of Central and Western Europe, in the county of Tou- louse, in Sicily, Aragon, Lombardy, France, Bur- gundy, Brabant, and Ciermany (cf. Douais, op. cit., p. 3(3, and Fredericq, "Corpus documentorum in- quisitionis ha>retieoe pravitatis Neerlandicoe, 1025- 1520", 2 vols., Ghent, lS,S9-96).

That Gregory IX, through his appointment of Dominicans and Franciscans as iiuiuisitors, with- drew the suppression of heresy from the pidper courts (i. e. from the bishops), is a reproach that in so general a form cannot be sustained. So little did he think of displacing episcopal authority that, on the contrary, he provided explicitly that no inquisi- tional tribunal was to work anywhere without the diocesan bishop's co-opemtion. And if, on the strength of their papal jurisdiction, inquisitors occa- sionally niaiiifcsteil too great an inclination to act independently of e|)iscopal autliority, it was precisely the popes who kept them within right bounds. As early as 1254 Innocent IV prohibited anew perpetual imprisonment or death at the stake without the episcopal consent. Similar orders were issued by Urban IV in 1202, Clement IV in 1205, and Gregory X in 1273, until at last Boniface VIII and Clement V solemnly declared null and void all judgments is- sued in trials concerning faith, unless delivered with the approval and c<i-<)pcration of the bishops. The popes always U|)lield with earnestness the episcopal authority, and sought to free the inquisitional tri- bunals from every kind of arbitrariness anil caprice.

It was a heavy liurden of responsibility — almost too heavy for a common mortal — which fell upon the shoulders of an inquisitor, who was obliged, at le.ast indirectly, to decide between hfe and death. The