Pegna has a good deal more to say on the same subject, and all of it is extremely interesting.
He propounds the questions: “May an inquisitor employ this ruse to discover the truth? If he enters into such a promise is he not obliged to keep it?” By this latter question he means, of course, the promise to pardon which the prisoner was given to understand was made him.
He proceeds to tell us that Dr. Cuchalon decided the first of these questions by approving the use of dissimulation, justifying it by the instance of Solomon’s judgment between the mothers.
It really seems as if there is nothing that theologians cannot justify by inversion, subversion, or perversion of some precedent (more or less apocryphal in itself) to suit their ends.
The scholiast himself agrees with the reverend doctor, and considers that although jurisconsults may disapprove of such methods in civil courts, it is quite fit and proper to use them in the courts of the Holy Office; explaining that the inquisitor has ampler powers than the civil judge [which seems to be an extraordinary reason for justifying his abuse of them].
Thus, Pegna pursues, in this edifying treatise upon the uses of hypocrisy, provided that the inquisitor does not promise the offender absolute impunity, he may always promise him “grace” (which by the offender is taken to signify “absolute impunity”) and keep his promise by diminishing somewhat the canonical pains that depend upon himself.
In actual practice this would mean that a heretic who has incurred the stake may be promised pardon if he will confess to the sins of which it is necessary to convict him before he can be burnt. And when, having confessed and delivered himself into the hands of the inquisitor, he claims his pardon, he is to be satisfied with the answer that the pardon meant was pardon for his sins — absolution, that his soul may be saved when they burn his body.
On the score of the second question propounded by the scholiast— “If the inquisitor enters into such a promise is he not obliged to keep it?” — he answers it by telling us that many theologians do not consider there is any such obligation on the part of the inquisitor. This attitude they explain by urging that such a fraud is salutary and for the public good; and, further, that if it is licit to extract the truth by torture, it is surely much more so to accomplish it by dissimulation — verbis fictis.
This is the general but by no means the universal opinion, we gather. There are some writers who are opposed to it. And now the scholiast becomes more extraordinary still. Hear him:
“These two divergent opinions may be reconciled by considering that whatever promises the inquisitors make, they are not to be understood to apply to anything beyond the penalties whose rigour the Inquisition has the right to lessen — namely, canonical penances, and not those by law prescribed.”
He writes this knowing that these promises are understood by the prisoner to mean something very different — that the prisoner is desired so to understand them, made so to understand them.
The honesty of Pegna’s reasoning is not to be suspected. He is not an apologist of the Holy Office writing for the world in general, and employing bad arguments perforce because he must make the best of the only ones available, even though he should lapse into suspicion of bad faith. He is writing, as a preceptor, for the private eye of the inquisitor. Therefore we can only conclude that these learned casuists who plunge into such profundities of thought and pursue such labyrinthine courses of reasoning had utterly failed to grasp the elementary moral fact that falsehood does not lie in the word uttered, but in the idea conveyed.
“However little,” he continues, in the course of polishing this gem of casuistry, “may be the remission granted by the inquisitor, it will always be sufficient to fulfil his promise.”
You see what a stickler he is for the letter of the law. You shall see a good deal more of the same sort of thing before we have gone much further.
But here the scholiast begins to labour. His conscience is stirring; possibly a ray of doubt penetrates his gloomy confidence that right is wrong and wrong is right. And so, we fancy, to quiet these uneasy stirrings comes the last paragraph on this subject:
“However, for greater safety of conscience, inquisitors should make no promises save in very general terms, and never promise more than they can fulfil.”*
[* See “Directorium,” iii. Schol. xxix.]
There is one more of Eymeric’s ruses for combating the guile of stubborn heretics:
Let the inquisitor obtain an accomplice of the accused, or else a person esteemed by the latter and in the inquisitor’s confidence, and engage him to talk often to the accused and extract his secret from him. If necessary, let this person pretend to be of the same heretical sect, to have abjured through fear, and to have declared all to the inquisitor.
Then one evening, when the accused shall have gained confidence in this visitor, let the latter remain until he can say that it is too late to return home and that he will spend the night in the prison. Let persons be suitably placed to hear the conversation of the accused and if possible a notary to take down in writing the confessions of the heretic, who should now be drawn by the spy into relating all that he has done.
Upon this subject Pegna moralizes* for the benefit of the spy, pointing out how the latter may go about his very turpid task without involving himself in falsehood or besmirching in the least the delicate, sensitive soul that we naturally suppose must animate him.
[* “Directorium,” iii, Schol. xxvi.]
“Be it noted that the spy, simulating friendship and seeking to draw from the accused a confession of his crime, may very well pretend to be of the sect of the accused, but” [mark the warning] “he must not say so, because in saying so he would at least commit a venial sin, and we know that such must not be committed upon any grounds whatever.”
Thus the scholiast. He makes it perfectly clear that a man may simulate friendship for another for the purpose of betraying that other to his death; that to make that betrayal more certain he may even pretend to hold the same religious convictions; all this may he do and yet commit no sin — not even a venial sin — so long as he does not actually clothe his pretence in words. What a store the casuist sets by words!
It is just such an argument as Caiaphas might have employed with Judas Iscariot one evening in Jerusalem.
It is a cherished thesis with apologists of the Holy Office that in its judicial proceedings it did neither more nor less than what was being done in its day in the civil courts; that if its methods were barbarous — if they shock us now — we are to remember that they were the perfectly ordinary judicial methods of their time.
But there was no secular court in Europe in the fifteenth century — steeped as that century was in dissimulation and bad faith — that would not have scorned to have made such dishonourable and dishonouring methods as these an acknowledged, regular and integral part of its procedure.
Pegna himself reveals the fact, when he finds it necessary further to justify these practices precisely because they were not in use in the civil courts:
“Perchance the authority of Aristoteles — who out of the bosom of Paganism condemned all manner of dissimulation — may be opposed to us, as well as that of the jurisconsults who disapprove of artifices of which judges may make use to extract the truth. But there are two forms of artifice: one addressed to an evil end, which must not be permitted; the other aiming at discovering truth, which none could blame.”*
[* Schol. xxvi. lib. iii.]
When confession has been obtained it would be idle, Eymeric points out, to grant the delinquent a defence. “For although in civil courts the confession of a crime does not suffice without proof, it suffices here.” The reason advanced for this is as specious as any in the “Directorium”: “Heresy being a sin of the soul, confession may be the only evidence possible.”
Where an advocate was granted to conduct the defence of an accused, we have seen in Art. XVI of Torquemada’s “Instructions” that he was under the obligation to relinquish suc
h defence the moment he realized the guilt of his client, since by canon law an advocate was forbidden to plead for a heretic in any court, civil or ecclesiastical, or in any cause whatsoever — whether connected with heresy or any other matter.
On the subject of witnesses, it should be added to what already has been said in the previous chapter that the Inquisition, whilst admitting the testimony of any man, even though he should be excommunicate or a heretic, so long as such testimony was adverse to the accused, refused to admit witnesses for the defence who were themselves tainted with heresy.
Since to bear witness in defence of a person charged with heresy might result in the witness himself becoming suspect, it will be understood that witnesses for the defence were not easily procured by the accused.
CHAPTER XII. THE JURISPRUDENCE OF THE HOLY OFFICE — THE AUDIENCE OF TORMENT
Eymeric’s cold-blooded directions for leading an accused who refused to confess into contradictions that should justify his being put to torture have already been considered.
The inquisitors could not proceed to employ the question — as the torture was euphemistically called — save under certain circumstances prescribed by law; and the strict letter of the law, as you have seen, and as you shall see further, was a thing inviolable to these very subtle judges.
These circumstances, as expounded by Eymeric in his “Directorium,”* are (a) the inconsistence of the accused’s replies upon matters of detail whilst denying the main fact; (b) the existence of semi-plenal proof of his offence.
[* Pars iii. quaest. lxi.]
This semi-plenal proof is considered forthcoming —
(a) When an accused is “reputed” to be a heretic and there is but one witness against him who can depone to having seen or heard him do or say that which is against the Faith. (Two witnesses were by law required to establish his guilt.)
(b) When in the absence of witnesses there are grounds for vehement or violent suspicion.
(c) When there is no evil “reputation” attaching to the accused, but one witness against him and grounds for vehement or violent suspicion — i.e. not actual suspicion but indications of it; a suspicion of suspicion, as it were. The distinction is most elusively fine.
The scholiast Pegna adds in his commentaries that this combination of “reputation” (or grounds for suspicion) and one witness is not necessary to justify submitting the accused to the question —
(a) When to evil reputation are added evil morals, which lead easily to heresy — thus those who are incontinent and very greatly addicted to women persuade themselves that this incontinence is not in itself a sin. (Such an opinion if proclaimed would amount to heresy, therefore one who acts as if he held it lays himself open to suspicion of heresy.)
(b) When the accused who has incurred evil reputation shall have fled. (The circumstance of his flight is accepted as evidence of evil conscience.)*
[* Schol. cxviii.; lib. iii.]
Eymeric further enjoins that the question shall be employed only when all other means of obtaining the truth shall have failed, and he recommends the use of exhortation, gentleness, and ruse to draw the truth from the prisoner.*
[* “Directorium,” pars iii. et seq.]
He observes that, after all, not even the torture can be depended upon always to extract the truth. There are weak men who under the first torments confess even what they have not done; and there are others so stubborn and vigorous that they can suffer the greatest pains; there are those who having already undergone torture are able to endure it with greater fortitude, knowing how to adapt themselves to it; and there are others still who, by having recourse to sorcery, remain almost insensible to the pain and would die before divulging anything.
These last, he warns inquisitors, use passages from the Gospel curiously inscribed upon virgin parchment, intermingling in these the names of angels that are unknown, designs of circles, and magic characters. These charms they bear about their bodies.
“I don’t yet know,” he confesses, “what remedies are available against these sorceries; but it will be well to strip and closely to examine the patient before putting him to the question.”
He recommends that when the accused has been sentenced to torture, and whilst the executioners are making ready to perform it, the inquisitor should continually endeavour to induce the accused to confess. The torturers should strip him with precipitation, but with a sorrowful air and almost as if troubled for him (quasi turbati). When stripped, he should be taken aside and once more exhorted to confess. His life may be promised him, provided that the crime of which he is accused is not such as to make it forfeit.
If all proves vain the inquisitor shall proceed to the question, beginning by interrogating him upon the more trivial matters of which he is accused, as he would naturally acknowledge these more readily (and when acknowledged they can be made the steppingstones to more), the notary being at hand to write down all that is asked and answered.
If he persists in his denials he is to be shown further implements of torture, and assured that he will have to undergo them all unless he speaks the truth.
If he still denies, the question may be continued on the second or third day, but not repeated.
Here again we have them observing the letter and flagrantly violating the spirit of the law. Torture must not be repeated because it is by law forbidden to put an accused to the question more than once, unless in the meantime fresh evidence has been forthcoming; but it is not forbidden to continue it — not forbidden because those who formulated that law never dreamt of such a quibble being raised.
It is almost incredible that men should juggle with words in this way. But here is the passage itself:
“Ad continuandum non ad iterandum, quia iterari non debent, nisi novis supervenientibus indiciis, sed continuari non prohibentur.”
Lest they should be in danger of having to repeat the torture, they took care to suspend it as soon as the patient was at the limit of his endurance, and merely resumed or continued it two or three days later, to suspend again and continue again as often as they might deem necessary.
That it can have made no difference to the wretched patient whether they described the procedure by one verb or the other does not appear to have weighed with them. There was a difference — an important verbal difference.
Upon this point the apologist Garcia Rodrigo, in his “Historia Verdadera de la Inquisicion,” very daringly draws attention to the meekness of the courts of the Inquisition as compared with the civil tribunals. He contrasts the methods of the two, and to make out a case in favour of the former, to prove to us that those who preached a gospel of mercy knew also how to practise mercy, he tells us, rather disingenuously, that whilst in civil courts a prisoner might be ordered three times to the torture, in the courts of the Inquisition this could not be imposed upon him more than once — its rules forbidding repetition.
He does not consider it worth while to add that the “Directorium” in which he found that rule points out, as we have seen, how it may be circumvented.
It is much easier to set up a case for the other side, to show that the greater mercy in the matter of torture was practised by the secular courts. In these, for instance, a nobleman was immune from torture. Not so in the courts of the Inquisition, which proceeded, no doubt, upon the grounds that all are equals in the sight of God. No exception was made there in favour of any man. And in Aragon, where the torture was never applied in civil trials, it was none the less resorted to by the inquisitors.
When the accused shall have endured torture without confessing, the inquisitors may order his re ease by sentence, stating that after careful examination they are unable to find anything against him on the score of the crime of which he is accused — which, of course, is no acquittal, since he may at any time be re-arrested and put upon his trial once more.
In his commentaries Pegna tells us* that there are five degrees of torture. He does not mention them in detail, saying that they are sufficiently we
ll known to all. These five degrees are given in Limborch.*
[* Schol. cxviii.; lib. iii.]
[* “Historia Inquisitionis,” .]
The first four are not so much torture as terror — or mental torture; it is only in the fifth degree that this becomes physical. The conception is of an almost fiendish subtlety; and yet its aim, we must believe, was merciful, since they accounted it more merciful to torture and terrify the mind than to bruise the flesh.
Eymeric’s directions are the basis of this, although Eymeric himself does not break up the procedure into degrees. These are:
(1) The threat of torture.
(2) Being conducted to the torture-chamber and shown the implements and their functions.
(3) Stripping and preparing for the ordeal.
(4) Laying and binding upon the engine.
(5) The actual torture.
The actual torture was of various kinds, any of which the inquisitor might employ as he considered most suitable and effective, but Pegna admonishes him not to resort to unusual ones. Marsilius, the scholiast informs us, mentions fourteen different varieties, and adds that he had imagined others, such as that of depriving a prisoner of sleep. In this he appears to have received the approval of other authors, but he does not receive Pegna’s. Even the scholiast is shocked at an ecclesiastic’s fertility of invention in this branch, and confesses that such researches are better suited to executioners than theologians.
It must be admitted that the records show none of that fiendish invention which is so widely believed to have been exercised. The cruel subtleties of the inquisitors were spiritual rather than physical, and we have just seen Pegna’s censure of an inquisitor who gave his attention to the devising of novel and ingenious torments.
Collected Works of Rafael Sabatini Page 637
