Torture - Edward Peters

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key element in the Romano-Canonical system was its rigid hierarchy of proofs, the place of confession in that hierarchy, and the frequent difficulty courts encountered either in finding the two required eyewitnesses or in obtaining a spontaneous confession from the accused. Two other elements appeared in the fourteenth century: the state prosecutor and the practice of concealing from the accused both the names and the testimony of witnesses against him. The appointment of a state prosecutor came about as a residuum of the old notion of the accusatorial process that there had to be an interested accuser if someone were to be haled before the court. In the twelfth and thirteenth centuries, as we have seen, some jurists said that fama took the place of an accuser, or that the judge himself did. In the latter case, however, there arose the objection that the judge could not be both prosecutor and judge, but this was circumvented by the role of the court officials or by the practice of anonymous denunciation, borrowed from ecclesiastical law. By the fourteenth century in France, we find the king’s procurator stepping into the place of the old accuser, or the more recent fama, judge, or denunciatio. From the fourteenth century on, except in England, the state prosecutor plays a more and more prominent role in criminal jurisdiction and procedure. It is the result, not of a corruption of judges or law schools, but of the emergence historically of an official with a particular interest in the procedure, not only of accusation, but of active prosecution of the accused. The inherent prosecutorial bias of the Romano-Canonical sytem had been measurably strengthened.

      At the same time, the old right of the accused to know the names of witnesses against him and to examine their testimony was no longer recognized. The roots of this denial of what had been a traditional right of the accused are obscure. As we will see below, they may lie in part with the practices of the ecclesiastical inquisitors, but there may be other reasons as well. First, French criminal justice, to take one example, distinguished between ordinary and extraordinary procedures in criminal jurisprudence. The ordinary procedure resembled the old accusatory process and included a kind of inquest, although one which did not permit the torture of the accused. The extraordinary procedure was inquisitorial and permitted torture. It could be invoked originally only for extraordinarily grave crimes, but it was tempting to use it also in cases where clear decisions could not be reached, and it appears to have been extended slowly to cover more and more categories of crime. The learned category of hierarchies of proof was especially felt in the extraordinary procedure, and its appeal to judges and prosecutors grew stronger. By the end of the fourteenth century in France it was the routine procedure for serious crimes. Because of the nature of the crime and the fear of danger to the witnesses or the flight of the accused upon learning the extent of the evidence against him, the concealing of witnesses’ names and the substance of their testimony became the next step in the development of criminal procedure.

      Another aspect of the increasing harshness of criminal procedure was the reciprocal influence of the ecclesiastical inquisition and the secular criminal courts. Since the Christianization of the Roman Empire in the fourth century, a number of crimes later considered purely ecclesiastical were made public offences. Among these were certain acts committed against churches and the clergy, most forms of religious backsliding and, most important, heresy. Thus, heresy was a crime ‘on the books’ of Roman law, and the emperor and his judges were obliged to act against it. Since secular courts had one power which church courts were for a long time denied, the power to shed blood, the Church consistently turned to lay defenders and rulers and courts in cases where clerical personnel were canonically prohibited from acting. When the crisis of religious dissent in the twelfth century became acute, many popes insisted that lay courts undertake the investigation of heresy. The most ambitious cooperation they received was that of Frederick II of Sicily, whose constitutions of 1231 against heretics constituted a landmark of secular statutory law. They were echoed in the laws of England, France, and Germany, and they enhanced the existing Roman law on the subject.

      Yet, by the beginning of the thirteenth century, it seemed to popes and other churchmen that both routine episcopal courts and lay courts were failing in their duty. With the charge to the Dominican convent at Regensburg by Gregory IX in 1231, the popes created a new kind of official, an investigator deriving his authority directly from the pope alone, from whose decision no appeal lay, and who operated according to the traditional ecclesiastical mode of inquisitorial procedure. In addition, as we have seen, popes from Lucius III to Innocent III aligned heresy with other kinds of crime: contumacy, treason, and even theft, and they declared heretics infamous and prescribed other punishments common to the secular sphere, such as confiscation of goods and property, penitential exile and fines.

      In addition, the most spectacular kinds of heresy, Waldensianism and Catharism, were discovered in those lands in which the influence of Roman law was particularly strong and in which magistrates had already spread widely the use of the inquisitorial process – in the cities of northern and central Italy and in the centre and south of France. The analogies between heretics and other types of criminals were pursued by a series of legally trained popes until the pontificate of the most able of the lawyer-popes, Innocent IV, drew the two even closer together. In his famous decretal Ad extirpanda of 1252, Innocent stated that heretics were thieves and murderers of souls, and that they ought to be treated no better than were literal thieves and murderers. A sixteenth-century commentator, Francisco Peña, introduces Innocent’s text accurately:

      Originally, when the Inquisition was first constituted, it seems that it was not permitted to the Inquisitors to torture offenders under the danger (as I believe) of incurring irregularity, and so torture was used against heretics or those suspected of heresy by lay judges; however, in the constitution of Innocent IV, beginning Ad extirpanda, it is written: ‘In addition, the official or Rector should obtain from all heretics he has captured a confession by torture without injuring the body or causing the danger of death, for they are indeed thieves and murderers of souls and apostates from the sacraments of God and of the Christian faith. They should confess to their own errors and accuse other heretics whom they know, as well as their accomplices, fellow-believers, receivers, and defenders, just as rogues and thieves of worldly goods are made to accuse their accomplices and confess the evils which they have committed.’ (Lea, Torture, p. 188)

      Although Innocent’s decretal permitted the introduction of torture into the process of investigating heretics, it still did not permit clerics themselves to inflict torture. But during the next pontificate, that of Alexander IV, the decretal Ut negotium in 1256 permitted inquisitors to absolve each other if they had incurred any canonical irregularities in their important work. After the mid-thirteenth century, torture had a secure place in ecclesiastical inquisitorial procedure.

      Yet the crime of heresy, in spite of papal analogies, did not resemble ordinary grave crimes in ways that permitted the routine application even of extraordinary procedure. It was a difficult crime to prove; although heretics were said to behave in certain ways, it was essentially an intellectual and voluntary crime; it was rooted in places in which neighbours and families knew each other and people might be reluctant to testify, or might testify for other reasons than the disinterested respect for truth; witnesses to heresy might come from social ranks or have reputations which could have excluded their testimony in an ordinary criminal case; finally, heresy was a shared offence: heretics did not exist individually, and besides the salvation of the heretic’s soul, inquisitors needed the names of fellow heretics. The end of the extract from Innocent IV’s decretal Ad extirpanda cited above implies that torture to elicit the names of accomplices was a common practice in secular courts. In the fourteenth century, French jurisprudence distinguished between the question préparatoire, torture applied to obtain a confession, and the question préalable, torture applied after conviction to obtain the names of accomplices. Innocent may, then, have been referring to an early stage of this process, once again adapting an element of the procedure of secular courts in the hunt for heretics.

      These circumstances, added to the fact that the early inquisitors seem not to have been particularly expert in legal procedure (the ‘professional’ inquisitor, with some training at least in the legal procedures of the inquisitions themselves and perhaps some formal legal training in canon law, appears only toward the end of the thirteenth century and the beginning of the fourteenth), appears to have led the new judges of heresy to employ the most drastic aspects of the inquisitorial

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