Methods of proof for determining the guilt or innocence of an accused person have a long history in the development of legal procedure. The Middle Ages adopted so-called non-rational appeals to the “judgment of God,” ordeals and trial by combat. When this was felt to be unsatisfactory – and in fact was prohibited – another means of proofs had to be found in order to satisfy the juridic demands of sufficient proof to justify acquittal or conviction. Forced confession, torture, was employed, because this assured “full proof,” a confession of guilt, and hence a legal condemnation. With the emergence of centralized governments, trained judges, public prosecutors, and local police forces torture was no longer needed to permitted. Better means had been found. But what about the twentieth century? What justification can there be for over sixty nations whose governments systematically practice or, at the very least, tolerate the use of torture?

“In 1874, Victor Hugo could say ‘torture has once and for all ceased to exist.’ Today we are compelled to recognize that it is more widespread than ever before. In more than a third of the United Nations, torture is used either as a method of interrogation or as a means of punishing detainees. Torture knows no idealogical frontiers: it is practice in Iran, Iraq, Ethiopia, Uganda, Guinea, South Africa, Guatemala, Argentina, Chile, Bolivia, Nicaragua, Indonesia, Bangladesh, Afghanistan, USSR, Morocco, Tunisia, Israel and the People’s Republic of Yemen.” (Herbert Radtke, “Torture as an Illegal Means of Control,” 1979)

Albert Shannon, The Medieval Inquisition (1991)

Indeed no firm references to the use of torture by the Inquisition are to be found in surviving documents through the end of the thirteenth century. Other, less drastic means, it appears, were employed to pressure witnesses to reveal what they knew: close imprisonment, chaining in small cells, restrictions on food. Physical torture seems not to have been part of the ordinary scene of the inquisitorial procedure in Languedoc at the height of the Inquisition.

Unfortunately, torture did continue as a legal method for obtaining evidence in secular courts all over Europe throughout the late Middle Ages and well into the High Renaissance, and beyond. England under the Tudors equated heresy with treason, and by order of the Privy Council the Jesuit Edmund Campion, among others, was tortured and eventually hanged, drawn and quartered at Tyburn Hill. The charge? He was a Catholic priest living in England. In time, torture was no longer employed in Europe, not because it came to be perceived as being inhumane (it had always been recognized as being a repulsive way of obtaining evidence), but because circumstantial evidence came to be accepted as sufficient proof to convict…With the emergence of the jury system the legal proofs which were required to be present in order to convict were done away with.

Albert Shannon, The Medieval Inquisition (1991)

The question at issue required a whole change of perspective in regard to crime. It could no longer be viewed as a personal offense between two private individuals but rather as a public crime inimical to the peace and tranquility of the commonweal. Therefore it should be the prerogative of the body politic to investigate, hold trials and punish. This presupposed a centralized government which would organize competent personnel to perform these functions. A very large step was taken by the Church in elaborating the trials by investigation, per inquisitionem, the enquete, in which the pros and cons of the matter were weighed in court and the case decided on the basis of the evidence presented. Originally the Inquisitor relied on the popular clamor, the hue and cry, the notoriety of the individual to bring the person to the official attention of the judge. But with the organization of the inquisitorial tribunal the Inquisitor gradually employed separate officials to investigate offenses, and, to present the evidence in court, the “minister of the Inquisition”.

But a third factor remained as a major stumbling block: what kind of proof would be sufficient for conviction. Legal processes are not born full grown out of the sea like Venus, but rather are the result of a continuous evolution. While the people of the Middle Ages, the Ages of Faith, were quite willing to accept the “judgment of God,” the ordeals, they were hard put to see why another man like themselves should have the superior power of judging them. And so, the determining factor in devising a new rational system of proofs, i.e., one based on objective evidence, was once again the Roman ideal of law. The decision in a criminal case must be based on objective, certain evidence, entirely independent of the will of a judge, which could be subjective and arbitrary. The judge was to be circumscribed by the ancient Roman tradition of complete, full proof, without which an accused could not be convicted of a capital offense. The Roman-canon law of proof governed judicial procedure in capital cases in the High Middle Ages and well into modern times:

1.The testimony of two eye witnesses was sufficient for conviction and constituted full proof.

2. The confession of the accused was accepted as full proof.

3. Circumstantial evidence, however compelling, was insufficient for the conviction in a capital case.

Albert Shannon, The Medieval Inquisition (1991)

Thus Innocent III, while ever conscious of the popular distaste for the same man being both accuser and judge, went along with the legal fiction of permitting ‘the public outrage’ to be sufficient for summoning a person to an accounting. But this was only a halfway measure that really did not solve the problem of bringing notorious persons to the bar. For once the popular clamor of the synodal witness had brought the person to court, they then withdrew; they had no part in the examination of the accused. It still seemed as if the judge and the accuser were the same, despite this legal fiction. What was needed was for the synodal witness, who according to Canon Six of the Council, was to investigate the evil report and notify the bishop, to continue on as an active participant in the trial.

This step, however, would not be taken until a score of years later when the ‘inquisitorial procedure’ was adapted by Pope Gregory IX (1227-1241) as a specific institution (the Inquisition) to deal with heresy. As the Inquisitor under the new mandate from Gregory IX organized the process for investigating heresy and heretics, he found it advantageous to appoint minor officials to make the original inquiries and then to assist him in the actual process of the trial. Out of this practice grew the office of ‘minister of the inquisition,’ who was really basically concerned with the investigation of heresy and with prosecuting the accused before the inquisitorial tribunal itself. From this auxiliary office developed the Promoter of Justice in church courts, whose duty it was to investigate wrong doing and to prosecute offenders. In this same century emerged the Grench office of procurateur de rio, and eventually states’ attorneys, precursors of modern day district attorneys.

Thus the Church substituted the inquisitorial procedure for the defective accusatory process. A rational inquiry was now introduced as the ordinary method of weighing the evidence and of deciding the guilt or innocence of an accused person. Moreover a designated official now assumed the responsibility for investigating and prosecuting alleged offenders. Both of these developments found their way into the legal systems of continental Europe. Indeed the ‘enquete’ of Louis IX of France is one of the glories of his reign, and a milestone in legal history. The inquisitorial procedure owers its modern day reputation to its association with the tribunal of the Inquisition, with which it has been mistakenly identified.

The inquisitorial procedure, then, was designed to remedy the deficiencies of the traditional accusatory method which made the detection and prosecution of criminal offenses dependent upon private initiative. The inquisition evolved by the Church to deal more effectively with abuses by the clergy was shortly adapted as a special agency in response to the exigencies engendered by the growth and spread of heresy. The Inquisition as an institution as well as a legal method of procedure was a court of exception, of extraordinary and summary procedure, in the face of a virulent and pressing danger.

Albert Shannon, The Medieval Inquisition (1991)

In order to bring some semblance of order out of heedless mob action it was of first importance to determine the exact beliefs and practices of the major dissident sects – the Cathars and the Waldensians – and the supporting reasons why they so believed. These doctrines were then compared with the teachings of the Roman Church, for both groups claimed that they were the true Christians trying to recapture the original, the pristine faith of the church, the faith of the Apostles. To the extent that their creeds were found to differ from the Catholic Church, the new movements were terms heretical. The purpose of the investigation, the ‘inquisitio’, was to point out to the dissenters wherein their teachings strayed from that of the Roman Church and hopefully, to win them back to their former allegiance. If a wayward son or daughter acknowledged his/her error and was received back into full communion with the Church, success was achieved. A salutary penance was given to the penitent – as is done today in the Sacrament of Penance. On the other hand, if the person knowingly and adamantly persisted in his/her heterodox beliefs, the Church then sorrowfully acknowledged defeat, solemnly declared the person a heretic, removed him/her from the communion of the faithful, and handed him/her over to the Secular Power to answer for the crime of disloyalty committed against political society.

In this way the faithful were protected from the contagion of evil doctrine, and the State preserved the integrity of the political and social order. For in the thirteenth century, and long before, Church and State worked closely together to protect and maintain the religious, social, and political stability that all believed necessary for the commonweal. In principle the separation of Church and State was insisted upon, even though the close interdependence of one on the other brought them into continuous association. The Church became heavily entangled in the feudal system, so much so that its ministers, even bishops, were chosen by the State and its property handled at times as a private possession by lay expropriators. It was only a mighty effort by the Gregorian Reform that reversed this stranglehold. The State in its turn had depended enormously on the Church for its legitimacy, for its higher trained officials and for the only education and culture that existed. Therefore, the unity of Christendom was sundered not only by the anti-ecclesiastical attitude of these new heretical sects, but by their anti-social nature as well (marriage was evil, all oaths upon which feudalism depended were prohibited, the coercive power of political authorities was denied – all of which undermined the very existence of organized society). In the twentieth century this kind of correlation and consensus simply does not exist.

Albert Shannon, The Medieval Inquisition (1991)

Modeled on the long forgotten regulations of the Code of Justinian, the Church brought a new procedure into the legislation of the Middle Ages. Appeals were quite out of character for the local, feudal, manorial courts. “Secular justice, administered chiefly by hundreds of petty independent barons and princes, was local and weak, selfish and mercenary, crude and unprogressive,” in the words of John Wigmore, a legal historian. The ever present right of appeal to Rome in ecclesiastical courts exercised a salutary effect on inquisitorial tribunals and enabled the pontiff to satisfy himself that inequities were remedied and unworthy judges removed and false rumors dissipated. The success of the church system of justice was not lost on secular rulers, who eventually adopted appeals as a regular procedure in their reorganized and centralized court systems.

Albert Shannon, The Medieval Inquisition (1991)

The legends of brutality of the Inquisition in regard to the numbers of persons sentenced to prison and of those abandoned to the secular power and, consequently burned at the stake, have been embellished through the years. These stories yield but grudgingly to the facts…

Working very carefully from extant registers and other available documents, Professor Yves Dossat estimates that for the years 1245-1246 in the diocese of Toulouse the following figures would seem to be justified. It is estimated that over 5,000 people were interviewed during this period. Out of a total of 945 people who were adjudged guilty in some degree of heretical movements, some 105 persons were sentenced to prison, while 840 received lesser penances, e.g. wearing of the crosses, pilgrimages, etc. There is no way of knowing how many, if any, were abandoned to the secular authority. The above is an extrapolated figure and could very well be close to the truth…As noted above, a person could not be sentenced unless he agreed to submit to the penalty and this promise was so recorded in the registers. However, it appears that twenty-five percent of those recorded as sentenced to prison for one reason or another did not show up. Of course they would then be declared contumacious, but it does point up the very large discrepancy between recorded sentences and the actual numbers, for instance, who performed their sentences…

After a painstaking analysis of all available data Professor Dossat concludes that for the middle of the thirteenth century only one out of every hundred heretics sentenced by the Inquisition was abandoned to the secular power, while between ten and twelve percent received prison sentences. Further, the Inquisitors reduced sentences to lesser penances and commuted others. Indeed on occasion they reduced the sentences of even the relapsed heretics to the wearing of crosses. It becomes quite obvious, then, that the number thought to have been sent to the stake must be considerably reduced. And many of those burned had been condemned posthumously.

Albert Shannon, The Medieval Inquisition (1991)