THE INQUISITION OF THE MIDDLE AGES

BOOK 1 - ORIGIN AND ORGANIZATION OF THE INQUISITION

CHAPTER VII.

2

EPISCOPAL JURISDICTION.

It was not that the Church was absolutely devoid of the machinery for discharging its admitted function of suppressing heresy. It is true that in the early days of the Carlovingian revival, Zachary's instructions to St. Boniface show that the only recognized method at that time of disposing of heretics was by summoning a council, and sending the convicted culprits to Rome for final judgment. Charlemagne's civilizing policy, however, made efficient use of all instrumentalities capable of maintaining order and security in his empire, and the bishops assumed an important position in his system.

They were ordered, in conjunction with the secular officials, zealously to prohibit all superstitious observances and remnants of paganism; to travel assiduously throughout their dioceses making strict inquiry as to all sins abhorred of God, and thus a considerable jurisdiction was placed in their hands, although strictly subordinated to the State. During the troubles which followed the division of the empire, as the feudal system arose on the ruins of the monarchy, gradually the bishops threw off not only dependence on the crown, but acquired extensive rights and powers in the administration of the canon law, which now no longer depended on the civil or municipal law, but assumed to be its superior. Thus came to be founded the spiritual courts which were attached to every episcopate and which exercised exclusive jurisdiction over a constantly widening field of jurisprudence. Of course all errors of faith necessarily came within their purview.

The organization and functions of these courts received a powerful impetus through the study of the Roman law after the middle of the twelfth century. Ecclesiastics, in fact, monopolized to such an extent the educated intelligence of the age that at first there were few besides themselves to penetrate into the mysteries of the Code and Digest. Even in the second half of the thirteenth century Roger Bacon complains that a civil lawyer, even if wholly untrained in canon law and theology, had a much better chance of high preferment than a theologian, and he exclaims in bitterness that the Church is governed by lawyers to the great injury of all Christian folk.

Thus long before the feudal and seignorial courts felt the influence of the imperial jurisprudence, it had profoundly modified the principles and practice of ecclesiastical procedure. The old archdeacon gave way, not without vituperation, before the formal episcopal judge, known as the Official or Ordinary, who was usually a doctor of both laws—an LL.D. in fact—learned in both civil and canon law; and the effect of this was soon seen in a systematizing of ecclesiastical jurisprudence which gave it an immense advantage over the rude processes of the feudal and customary law. These episcopal courts, moreover, were soon surounded by a crowd of clerkly advocates, whose zeal for their clients often outran their discretion, furnishing the first medieval representatives of the legal profession.

Following in the traces of the civil Law, there were three forms of action in criminal cases—accusatio, denunciation and inquisitio. In accusatio there was an accuser who formally inscribed himself as responsible and was subject to the talio in case jof failure. Denunciatio was the official act of the public officer, such as the testis synodalis or archdeacon, who summoned the court to take action against offenders coming within his official knowledge.

In inquisitio the Ordinary cited the suspected criminal, imprisoning him if necessary; the indictment, or capitula inquisitionis, was communicated to him, and he was interrogated thereupon, with the proviso that nothing extraneous to the indictment could be subsequently brought into the case to aggravate it. If the defendant could not be made to confess, the Ordinary proceeded to take testimony, and though the examination of witnesses was not conducted in the defendant's presence, their names and evidence were communicated to him, he could summon witnesses in rebuttal, and his advocate had full opportunity to defend him by argument, exception, and appeal.

The Ordinary finally gave the verdict; if uncertain as to guilt, he prescribed the purgatio canonica, or oath of denial shared by a given number of peers of the accused, more or less, according to the nature of the charge and degree of suspicion. In all cases of conviction by the inquisitorial process, the penalty inflicted was lighter than in accusation or denunciation. The danger was recognized of a procedure in which the judge was also the accuser; a man must be popularly reputed as guilty before the Ordinary could commence inquisition against him, and this not by merely a few men or by his enemies, or those unworthy of belief. There must be ample ground for esteeming him guilty before this extraordinary power vested in the judge could be exercised. It is important to bear in mind the equitable provisions of all this episcopal jurisdiction when we come to consider the methods of what we call the Inquisition, erectecl on these foundations.

ITINERANT INQUESTS.