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 INQUISITION

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INQUISITION

with the witnesses' names, and their first duty was to ilecide whether or not tlie witnesses were credible.

The boni i-iri were very frequent ly called on. Thirty, fifty, eighty, or more persons — laymen ami priests, secular and regular — would be summoned, all highly respected and independent men, and singly sworn to give verdict upon the cases before them according to the best of their knowledge and belief. Substantially they were always called upon to decide two questions: whether and wliat guilt lay at liand, and what punish- ment was to be inflicted. That they might be influ- enced by no personal considerations, the case would be submitted to them somewhat in the abstract, i. e., the name of the person inculpated was not given. Al- though, strictly speaking, the boni liri were entitled only to an advisory vote, the final ruhng was usually in accordance with their views, and, whenever their decision was revised, it was always in the direction of clemency, the mitigation of the findings being indeed of frequent occurrence. The judges were also assisted by a consilium permanens, or standing coimcil, com- posed of other sworn judges. In these dispositions surely lay the most valuable guarantees for an objec- tive, impartial, and just operation of the inquisition courts. Apart from the conduct of his own defence, the accused disposed of other legal means for safe- guarding his rights; he could reject a judge who had shown prejudice, and at any stage of the trial could appeal to Rome. Eymeric leads one to infer that in Aragon appeals to the Holy See were not rare. He himself as inquisitor had on one occasion to go to Rome to defend in person his own position, but he ad- vises other inquisitors against that step, as it simply meant the loss of much time and money; it were wiser, he says, to try a case in such a manner that no fault could be found. In the event of an appeal the documents of the case were to be sent to Rome under seal, and Rome not only scrutinized them, but itself gave the final verdict. Seemingly, appeals to Rome were in great favour; a milder sentence, it was hoped, would be forthcoming, or at least some time would be gained.

(d) Punishments. — ^The present writer can find <^ nothing to suggest that the accused were imprisoned during the jjcriod of enquiry. It was certainly cus- tomary to grant the accused person his freedom until the sermo generalis, were he ever so strongly inculpated through witnesses or confession; he was not yet sup- posed guilty, though he was compelled to promise under oath always to be ready to come before the in- quisitor, and in the end to accept with good grace his sentence, whatever its tenor. The oath was assuredly a terrible weapon in the hands of the medieval judge. If the accused person kept it, the judge was favour- ably inclined; on the other hand, if the accused vio- lated it, his credit grew worse. Many sects, it was known, repudiated oaths on principle; hence the vio- lation of an oath caused the guilty party easily to incur suspicion of heresy. Besides trie oath, the in- quisitor might secure himself by demanding a sum of money as bail, or reliable bondsmen who would stand surety for the accused. It happened, too, that bonds- men undertook upon oath to deliver the accused "dead or alive". It was perhajis unpleasant to live under the burden of such an obligation, Jmt, at any rate, it was more endurable than to await a final verdict in rigid confinement for months or longer.

Curiously enough torture was not regarded as a mf>de of punishment, but purely as a means of eliciting the truth. It was not of ecclesiastical origin, and was long prohibited in the ecclesiastical courts. Nor was it originally an important factor in the inquisitional procedure, being unauthorize<l until twenty years after the Inquisition had bef;un. It was first author- ized bv Innocent IV in his Hull "Ad exstirpandu " of 1.') Mav, IL'-VJ, which was eo[ifirnied by Alcxand.T IV on :«) November, 12.')!», and by Clement IV on :! .No-

vember, 1265. The limit placed upon torture was cilra membri diminiilioncm ct nidiiis pcriculum — i.e.. it was not to cause the loss of a limb or imperil life. Torture was to be ajiplieil only once, and not then un- less the accused were uncertain in his statements, and seemed already virtually convicted by manifold and weighty proofs. In general, this violent questioning {qwFstio) was to be deferred as long as possible, and recourse to it was permitted only when all other ex- pedients were exhausted. Conscientious and sensible judges quite properly attached no great importance to confessions extracted by torture. After long expe- rience Eymeric declared: Qua'stiones sunt fallaces et inejficaces — i. e. the torture is deceptive and ineffec- tual.

Had this papal legislation been adhered to in prac- tice, the historian of the Inquisition would have fewer difficulties to satisfy. In the beginning, torture was held to be so odious that clerics were forbidden to be present under pain of irregularity. Sometimes it had to be interrupted so as to enable the inquisitor to con- tinue his examination, which, of course, was attended by numerous inconveniences. Therefore on 27 April, 1260, Alexander IV authorized inquisitors to absolve one another of this irregularity. Urban IV on 2 August, 1262, renewed the permission, and this was soon interpreted as formal licence to continue the examination in the torture chamber itself. The in- quisitors' manuals faithfully noted and approved this usage. The general rule ran that torture was to be resorted to only once. But this was sometimes circumvented — first, by assuming that with every new piece of evidence the rack could be utilized afresh, and secondly, by imposing fresh torments on the poor victim (often on diff'erent days), not by way of repetition, but as a continuation (non ad modum iterationis sed continuationis), as defended by Ey- meric; "quia iterari non debent [tormenta], nisi novis supervenient ibus indiciis, continuari non prohiben- tur." But what was to be done when the accused, released from the rack, denied what he had just con- fessed? Some held with Eymeric that the accused should be set at liberty; others, however, like the author of the "Sacro Arsenale", held that the torture should be continued, because the accused had too seriously incriminated himself by his previous con- fession. When Clement V formulated liis regulations for the employment of tortm'e, he never imagined that eventually even witnesses would be put on the rack, al- though not their guilt, but that of the accused, was in question. From the pope's silence it was concluded that a witness might be put upon the rack at the dis- cretion of the inquisitor. Moreover, if the accused was convicted through witnesses, or had pleaded guilty, the torture might still be used to compel him to testify against his friends and fellow-culprits. It would be opposed to all Divine and human equitj' — so one reads in the " Sacro Arsenale, ovvero Pratica deir Officio della Santa Inquisizione" (Bologna, 1665) — to inflict torture unless the judge were personally persuaded of the guilt of the accused.

liut one of the difficulties of the procedure is why torture was used as a means of learning the trutli. On the one hand, the torture was continued until the accused confessed or intimated that he was willing to confess. On the other hand, it was not desired, as in fact it was not possible, to regard as freely made a confession wrung by torture.

It is at once apparent how little reliance may be placed upon the assertion so often repeated in the minutes of trials, " confessionem esse veram, non fac- tam vi tornK'iitoruni " (the confession was true and free), even though one had not occasionally read in the preceding pages that, after being taken down from the rack ipostiiiiiim diposiluK fiiit iklormenlo), he frecb/ confessed this or that. However, it is not of much greater importance to say that torture is seldom