Inquisitorial Procedure

The Inquisition, it should be no surprise, is a prototype of the partisan trial. To the inquisitor, “eager to destroy the foxes which ravaged the vineyard of the Lord,” H.C. Lea observes, “the task of exploring the secret heart of man was no easy one.” Recognized judicial procedure, which might prevent injustice and discover the truth, necessarily was set aside.

Inquisitorial procedure was simple. If simplicity and certainty are legal virtues, partisan trials come with high recommendation. The inquisitorial process began with an oath, a promise to answer all questions asked, to betray all heretics known, and to perform all penance imposed. Refusal to take the oath revealed that the person was a heretic, defiant and obstinate, who required correction. Although not all heretics were easily discovered at the point of the oath, this first step was a big one. The English adopted the practice in the Star Chamber procedures employed by the Tudor and Stuart regimes. Its abuse there prompted the framers of the American constitutional system to insure against the inquisitorial oath in state bills of rights and in the Fifth Amendment’s protection against self-incrimination.³

After the oath came the confession. A person mentioned in a prisoner’s confession as a heretic would be the subject of a secret investigation. When evidence was collected against this next person, by now prejudged as guilty, he or she would be arrested or summoned to appear. Then the process would begin another cycle with the inquisitorial oath.

If either impenitent or caught in a heresy at the examination, the prisoner would be delivered to the secular authority for execution.

The prisoner of the Inquisition was interrogated and pressured to prove his or her sincerity. Yet the opposite virtue was the mark of a skillful inquisitor. Deceit and torture were tools an inquisitor could employ without scruple to produce a confession. The examiner might, for instance, pretend to read passages of evidence or tell the prisoner that others have incriminated him. A jailer might use what is now called the “Mutt and Jeff technique” of feigning compassion, urging the prisoner to confess because the inquisitor is merciful and will take pity on him. The inquisitor might promise that after a full confession the prisoner will be allowed to return home, all done with the mental reservation that whatever is done for the conversion of heretics is merciful and that all penances are mercies. Spies could be employed, or the prisoner might find his or her family admitted to the cell to overcome reticence. A prisoner refusing the confession desired by the inquisitor might be sent back to the cell for an indeterminate time—days, weeks, months, years, even decades. In 1319 a Guillem Salavert, for example, was brought forth for sentencing after making unsatisfactory confessions in 1299 and 1316. Apparently his 1319 version met the inquisitorial standards of acceptability because his penance took into account his twenty years’ imprisonment. Finally, torture, which saved the trouble and expense of long imprisonment, could be used to secure a speedy confession.⁵

Heresy itself was difficult to spot with any certainty.

Evidence of heresy, including rumor and gossip, would be sought out and carefully recorded. While the tales of an informer and floating chatter might not provide solid proof of heresy, they were the substance of suspicion of heresy. Senator Joseph McCarthy did not invent his techniques nor did Kenneth Starr. Obstacles on the path of conviction were removed by holding that a witness could revoke his or her testimony if it had been favorable to the prisoner, but if it had been adverse, the revocation was null. While for ordinary crimes witnesses had to be of good repute, for heresy and its suspicion the Inquisition knew no standards. Overall, the inquisitor held to the assumption that whatever could not be explained favorably would be taken as adverse proof. In probing the heart of a heretic or a suspected heretic, the inquisitor operated with such wide discretion that, as H. C. Lea put it, his “temper had more to do with the result than proof of guilt or its absence.”⁶

Edward Peters, the H.C. Lea Professor of Medieval History at the University of Pennsylvania, has issued a sharp warning against overplaying the term inquisition. Three histories, not one, envelop the word. Inquisition can mean: (1) the historical procedures in early modern Europe; (2) the myth shaped by the Reformation and Enlightenment about the repressive institution—The Inquisition; or (3) “the history of how a history of inquisitions emerged out of the myths of The Inquisition.” Peters documents how inquisitorial hyperbole has emerged since the sixteenth century. While a legal procedure based on Roman and canon law developed long before an inquisition, from the thirteenth century on an institutional inquisition was employed by the papacy. But Peters admonishes those who indulge themselves by using inquisition for every tyrannical legal procedure. “There was never,” Peters points out, “except in polemic and fiction, The Inquisition, a single all-powerful, horrific tribunal, whose agents worked everywhere to thwart religious truth, intellectual freedom, and political liberty, until it was overthrown sometime in the nineteenth century—The Inquisition of modern folklore.”⁷