Under the Denunciatio, the accuser denounced another without offering to prove his case. This method, too, had been found unsatisfactory in general for heresy trials, and with the development of the monastic Inquisition, had gradually yielded to the Inquisitio, which experience had found most effective. The Inquisitor, unlike the judge under Roman Law, was seeking not to punish the offense, primarily, but to heal and reconcile the offender. As a priest, he was not interested in the prosecution of crime – that was the state’s business. What he desired was the spiritual health of the offender, and this involved his reconciliation with the Church of God, and soem sort of penance to test his sincerity and help him gain the strength to persevere in his reformation. For this reason the earlier Inquisition was not very hospitable to lawyers and advocates as counsel for the accused.

There has been a great deal of misunderstanding about this; it has been made the ground of a strong indictment of the Inquisition, as unwilling to give the accused the fair chance that he is allowed in modern criminal practice. But the Inquisitor did not have this juridical point of view. He was a specialist in the science of the things of God, the doctor of souls, as Bernard Gui said, whose aim was not to punish but to heal and save. If the heretic fell into the hands of the state, he was burned without getting a second chance. The Inquisition saved him from this fate, if he would adjure and be reconciled, and there is no doubt that large numbers of heretics escaped the faggots and the stake because patient Inquisitors induced them to abjure, or frightened them into it. For all this the best method seemed to be the Inquisitio.

William Thomas Walsh, Characters of the Inquisition (1940)

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One clear indication of the increasing use of the written word in western Europe from the twelfth century onwards was the compilation of an unprecedentedly diverse and numerous body of legal texts. In part, the growing textualization of law built on earlier foundations. This was particularly true of Roman law, whose rediscovery in Italy in the late eleventh century led to a revival in the study of law. At the same time, the expansion of papal power from the second half of the eleventh century accelerated the production of new collections of canon law, whose compilers sought to impose order upon a mass of written law going back to the earliest councils of the church and also to integrate contemporary additions to that law resulting from conciliar and papal legislation.

Yet the diversification of legal writing also owed much to the compilation of texts of secular customary law, in both Latin and the vernacular. In some societies, such as Iceland and Scandinavia, these texts marked the beginning of written law; in others, including England, France, Germany, and, above all, Italy, where law and legislation had been written earlier in the Middle Ages, the custom of particular kingdoms or provinces was committed to writing in new forms with the compilation of coutumiers. Although their relationship to earlier Welsh legal writing is unclear, the lawbooks of medieval Wales provide a further instance of this textualization of secular custom.

The proliferation of compilations of customary law from the twelfth century onwards raises important issues about both law and literacy in medieval western Europe. In general terms, many of these compilations can be interpreted as reflecting an increasingly widespread conviction, stemming from acquaintance with the authoritative books of Roman and canon law, that law should be in written form. It has also been argued that the influence of the learned laws led to a greater emphasis in customary law on the use of written evidence and the keeping of court records, thereby helping to create a more literate and rational legal culture than that of the early Middle Ages.

Huw Pryce, “Lawbooks and Literacy in Medieval Wales” (2000)

As in the case of the murder of the Vestals, outbreaks of witch-hunts leveled against the matrons of Rome cluster around times of external threat and internal danger. Thus in 491, the cult of Fortuna Muliebris was founded, open only to univirae, celebrating the salvation of Rome by the mother and wife of Coriolanus. In 331, a year of plague, twenty patrician wives were charged with a city-wide poisoning conspiracy. The women were forced to drink the drugs that they claimed were beneficial and of course died – an obvious trial by ordeal. A further one hundred seventy matrons were executed as a result of the subsequent investigation. In 296, the cult of Plebeian Chastity was founded. In the following year, an unknown number of matrons was found guilty of adultery, fined, and the money used to build the temple of Venus Obsequens as a warning to adulteresses. In 215, following the disaster at Cannae, the Oppian law was passed, the temple of Venus Verticordia dedicated, and the Vestal Virgins Floronia and Opimia ex- ecuted, together with more explicit human sacrifice. In 213, there was a suppression of foreign cults and an unspecified number of wives exiled for adultery. In 204, there was the trial by ordeal of Claudia Quinta, charged with adultery. In 186, the Bacchanalia crisis erupted when unknown numbers (in the thousands) of women were executed by family tribunal or the state. In 184, there was a further series of poisoning trials, involving both men and women. In 180, Hostilia Quarta was condemned for poisoning her husband in order to advance her son by an earlier marriage, while in Rome and environs, three thousand people were found guilty of poisoning. In 154, Publilia and Licinia were accused of poisoning their husbands, tried by family tribunals, and strangled. In 113, following the condemnation and execution of the Vestal Virgins, the temple of Venus Verticordia was rededicated.

Two questions arise: Why was this fear directed against matrons, women at the center of society, rather than solely against the old, the widowed, the unprotected, or other societally marginal women, as in the European witch craze?  And why was the charge of adultery the expression of that fear?

These eruptions of rage against women reveal a profound fear at the core of Roman society. In brief, the role of Woman as Sign has led to the role of Woman as Stranger: the very interchangeability and exchangeability on which Rome was based necessitated that a woman still be attached to, and be a member of, her father’s family for her to have value as an exchange. As a result, she was still a stranger in her marriage family and feared as a stranger, that is, as a potential traitoress to her new family, as a potential witch to her husband and poisoner of his children. This fear, though best known to folklore as centering on the figure of the step-mother, was not confined to her. Rather, since for Rome the children were the husband’s, both legally and biologically, all mothers were stepmothers, fostering another’s children. Anthropological data from a variety of cultures demonstrate the way in which accusations of witchcraft are frequent against brides brought into virilocal or patrilineal villages.

For Rome, a single example may serve to illustrate this nexus of adultery, poisoning, and betrayal. According to Plutarch (Rom. 22.3), the laws of Romulus specified that a husband may divorce his wife only for poisoning his children, counterfeiting his keys, or adultery. This very marginality of women, as we have seen, makes them the perfect victims. In times of panic, the society can easily be restored to health by the sacrifice, exile, or punishment of wives, who are central to the family yet not fully members of it; who are necessary to produce children yet expendable; who are, in short, human but less than human. Yet why do Girard’s objections to women as the ideal sacrificial victim not apply? The execution of a wife would appear to be fraught with the dangers of reciprocal violence from either her birth family or her marriage family, which Girard noted.

Here we can see the role that the charge of adultery played. Adultery of a wife was the betrayal of all her male relatives, both by birth and by marriage. Only for adultery did both husband and father have the right, indeed the duty, to kill a matron. Only the charge of adultery could sever a woman from both her agnatic and her marriage families. The list in the Appendix makes clear the prevalence of the theme of conspiracy. We hear not of individual women put on trial but masses. We are told not of monstrous women acting alone but in consort, and not merely with adulterers, but more terrifyingly with the other outsiders, with slaves and foreigners, and most terrifyingly, with each other. They formed an anti-society, an underground where women were adulterous and poisoned their husbands, even their children. They created a witch-world whose values were distorted parodies of the values of patriarchal society: women as active, rather than passive; as sexual subjects, rather than sexual objects; as murderers, rather than victims. Thus the magical and liminal functions of women were not confined to the Vestal Virgins. Female sexuality under male control was the basis of and paradigm for keeping society under control. Yet in times of crisis, the society turned on those elements, which it feared would threaten social stability, the very categories it created in order to have stability at all. The unpenetrated virgin and the well-regulated wife both embodied the city in the symbolic universes of sympathetic magic and ideological praxis.

Holt N. Parker, “Why Were the Vestals Virgins? Or the Chastity of Women and the Safety of the Roman State” (2004)

Criminal justice in the Italian city-states of the thirteenth century was still deeply enmeshed in the traditional premises and practices of early medieval criminal law. The prosecution of crime was dependent upon private accusation by the victim or the victim’s heirs, and punishment was based upon a very personalized definition of crime. Only a limited number of crimes, such as arson, counterfeiting, false testimony, and sodomy were considered to be offenses against the morality, interests, and safety of the community. Most major violent crimes, such as murder, theft, rape, kidnapping, and assault, were viewed not as public but as essentially personal offenses, as injuries against particular individuals rather than as injuries against the community. In these cases the primary role of government was to reconcile criminal and victim rather than to punish the offender. Consequently, the penalties for all crimes of personal violence took the form of composition – that is, payment of a fine which served to compose the differences between offender and victim. Fines were made proportionate to the nature of the offense, the status of both the victim and the criminal, and the setting of the crime. If the accused could not pay, but could prove poverty, the penalty might be adjusted in proportion to the accused’s ability to pay. If the accused were contumacious, he or she was banished and could not return until the fine was paid and the offender had made a pax or concordia, that is, a formal peace agreement, with the victim or the victim’s heirs.

The goal of criminal justice was to control the explosive potential of the vendetta, to arrange for the payment of fines and formation of peace agreements that would expiate the crime and serve as substitutes for the vendetta, while retaining the premises of the vendetta. The primary function of criminal court prosecution was to satisfy the honor of the victim or his family and to compensate for damages. […]

In the course of the thirteenth century this personalized, modified-vendetta system of criminal justice underwent significant transformations, and became much harsher and more depersonalized, with a deterrent and public or community-oriented conception of crime and punishment. The degree of change, however, varied among the city-states: In Bologna, criminal law reform was particularly intensive. Since Bologna in the twelfth and thirteenth centuries was a major center for the revival of Roman and canon law, it is not surprising that criminal justice in that city was more precocious and sophisticated than in most other Italian cities. But it must be emphasized that socioeconomic, religious, and political pressures, such as the growth of a popular party called the popolo, combined in the second half of the thirteenth century to shape an environment that made Bologna’s legal system receptive to the new concepts and procedures of Roman and canon law.

Sarah Rubin Blanshei, “Crime and Law Enforcement in Medieval Bologna” (1982)

The crime of the Vestal was neither against the gods alone nor against the Pontifex Maximus alone. The trial and execution of the Vestal Virgin was unique because it was simultaneously both a religious rite to drive out the pollution of incestum and a judicial rite for the punishment of treason. The penetrated virgin was a monster and so must be expiated as a prodigium. Yet she sinned willingly and so was a traitor. The trial therefore had two corresponding functions. First, the trial guaranteed the unanimity of the sacrifice, the “absolute faith in the guilt of the surrogate victim.” It separated the Vestal Virgin from the community and increased the sacrificially necessary guilt. She was made responsible for all the evils that occurred in the time of crisis, especially sterility of women and diseases of cattle (note the common witchcraft charges).

Second, the trial served as the disguise necessary to the proper functioning of the sacred. The Greek and Latin sources themselves carefully distinguished between the execution of the Vestals in 215 and 113 and the sacrifice of the two Greeks and two Gauls along with them (see Appendix).

The disguise has worked extraordinarily well. Pliny is not the only one to be unable to convince himself of the possibility of wrongful conviction. Modern authors commenting on the historical texts hold to an oddly naive and credulous style of reporting. The trials and executions of the Vestals are never referred to as – what they so palpably are – human sacrifice.

Holt N. Parker, “Why Were the Vestals Virgins? Or the Chastity of Women and the Safety of the Roman State” (2004)

Those who work with and are in contact with the sacred are especially likely to become its victims. The primary notion is that of contagion. The fear of the contaminated insider abetting an external enemy is crucial to the thinking of many societies, and anthropological analysis of witchcraft can help illuminate how this fear manifested itself in Rome as well. Thus, Philip Mayer in a famous article describes the witch as “The Traitor within the Gates” (1970, 60):

The figure of the witch, clearly enough, embodies those characteristics that society specially disapproves. The values of the witch directly negate the values of society…. However, I think that another or a more particular kind of opposition is also vitally involved. I mean the opposition between “us” and “them.”… The witch is the figure who has turned traitor to his own group. He has secretly taken the wrong side in the basic societal opposition between “us” and “them.” This is what makes him a criminal and not only a sinner.

These remarks cast an important light on the Vestal Virgin. For the Vestal accused of incestum was held to be not only a sinner but a criminal as well, and the worst criminal of all: a traitor-ess. The specifically feminine form is significant. In undoing herself, she has undone Rome. I say “undoing herself” in the same sense as “got herself pregnant.” For a feature, usually unnoticed or unremarked by both ancients and moderns, is the entirely optional presence of a man. The sequence of events is clear: misfortune results in suspicion of unchastity; unchastity implies a seducer; one is occasionally sought and found. While we know the names of several men executed or exiled for having had intercourse with Vestal Virgins and while such a charge clearly might be used for political purposes, Vestals were most often tried for unchastity quite by themselves with no male codefendants, or (just as revealing) the existence of male corespondents was not considered worthy of record. There is no case recorded of a Vestal Virgin suspected or convicted because she was pregnant nor any case where a Vestal was charged with unchastity because she had been raped. Vestals always sinned willingly. It was necessary for them to do so…

Thus, the penetrated Vestal Virgin becomes a witch; that is, when a witch was needed, a Vestal was deemed to have been penetrated. Here we see one of the most frequent uses of witchcraft: to protect other value systems. The failure of sacred ritual can be attributed to witchcraft, specifically to betrayal by those very technicians of the sacred whose duty it was to perform the rituals that protect society. This linking of betrayal and unchastity in the figure of the traitoress (traditura) ran deep in the Roman mind. It is an intimate part of the cultural encyclopedia. It features prominently in myth and mythical history (Horatia and Tarpeia) as well as rhetoric and rhetorical history (Sempronia). It is also enshrined in law, which allows the torture of slaves to provide evidence against their masters only for cases of incestum and for treason.

Holt N. Parker, “Why Were the Vestals Virgins? Or the Chastity of Women and the Safety of the Roman State” (2004)

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)

The Vestal represents not only the idealized role of Woman – a fusion of the archetypal roles of la Vergine and la Mamma into the figure of la Madonna – but also the citizen body as a whole. Many cities are symbolized by women. Athens, symbolized and guarded by the virgin goddess Athena, is an obvious parallel but does not supply an explanation for the choice of a female virgin to represent a citizen body composed of men and their dependents. Pomeroy points towards an answer: “Since a virgin belongs to no man, she can incarnate the collective, the city: she can belong to everyone” (1975, 210). This insight, however, is incorrect in one important respect: an ordinary virgin in Roman law does belong to a man – she belongs to her father. Accordingly, for a virgin to incarnate the collective, she must be extraordinary. She must be freed not only from her father but also from all possible and catalogued forms of familial tie.

In the past the legal status of the Vestal Virgin has not been correctly conceptualized, since it has been approached almost entirely from a purely descriptive point of view. Her unique legal status should be viewed less as a mark of respect than as a magical function making it possible for her to incarnate the collective. Once the ritual and symbolic purpose of the laws is considered, the legal status and consequences of that status are very clear. Gardner summarizes (1986, 25):

The oddities of her position seem rather to arise from her position as one in charge of a worship central to the state and not belonging to any one family in the state. She was taken out of her family, with certain legal consequences, but she did not cease to be a woman.

It is necessary to go further. She was taken out of her family and not added to any other. Moreover, she was not just in charge of a worship central to the state; she was also the embodiment of that state. She did not cease to be a woman, but she ceased to be like any other woman. Roman society was governed by a strict series of exogamic rules, and the principle of Woman as Sign is more visible there than in many other cultures. The exchange of women to seal interfamilial bonds and political ties was a marked feature of Roman society. Thus, if the Vestal Virgin was to represent the society as a whole, she must be exterior to all families.

Since a basic principle of Roman law was that a woman always belonged to someone, the procedure to free the Vestals from ownership was both complex and comprehensive. The first step in the process was to exempt the Vestal initiate from the power of her father (patria potestas). Since this was normally accomplished by coemptio, a form of sale that merely placed her in someone else’s power, she was specifically said not to have undergone emancipation, which normally simply passed a woman into the tutela of her nearest male relative. She was then freed from any form of tutela but uniquely without loss of status (capitis minutio), i.e., without falling into the manus of any other man. Though she was under the formal discipline of the Pontifex Maximus, who could scourge her for minor offenses, he exercised neither patria potestas nor tutela over her. Thus the complex legal procedure prevented her from being an orphan while still guaranteeing that legally and religiously she had no family. She was completely removed from her agnatic family and yet did not pass to the ownership of any other family

A Roman woman existed legally only in relation to a man. A woman’s legal status was based entirely on this fact. The act of freeing a Vestal from any man so that she was free to incarnate all men removed her from all conventional classifications. Thus she was unmarried and so not a wife; a virgin and so not a mother; she was outside patria potestas and so not a daughter; she underwent no emancipatio, no coemptio and so not a ward. This unique status entailed a number of consequences. Since she had no family, she no longer inherited property nor did she leave property to her family if she died intestate. Rather than her property reverting to the gens, as would be the case for an intestate woman freed by ordinary emancipation, it reverted to the state, of which she was the embodiment. As a free agent, she necessarily acquired the right to dispose of her property by will and acquired the right to be a witness.

Holt N. Parker, “Why Were the Vestals Virgins? Or the Chastity of Women and the Safety of the Roman State” (2004)

One of the glories of the Roman Empire, which the Middle Ages admired and sought to use to advantage, was the brilliant codification of Roman Law, the Corpus juris civilis. It greatly influenced both canon (Church) law and civil law in the Middle Ages. It was just in these centuries that it was being revived, and called the Reception of Roman Law. Much of the current thirteenth century trial procedure had its origin in Roman Law. The three methods of trial known at the time were termed the ‘accusation’, the ‘denunciation’, and the ‘inquisition’. The accusatory was the ordinary method; the other two, extraordinary. […]

C. Inquisition (inquisition). The third method consisted of an investigation made of a crime or criminal activity by a legitimate judge. The deficiencies of the first two methods were obvious; 1) the fear of having to undergo the penalty attached to the crime one had charged another with, unsuccessfully, the poena talionis; 2) the very real danger of mutilation or death in the trial by combat with the accused; 3) the necessity of inflicting the penalty on the guilty party by the one who had successfully brought the charge; 4) the fact that both the ‘accusatory’ and the ‘denunciatory’ procedures were private affairs, so that the duty to act against crime too often slumbered in inactivity, fear, lethargy – and crime went unpunished. What was needed was an official charged with the obligation of investigating and dealing juridically with criminal activities. The other methods of private, popular accusation, the actio popularis so dear to Roman tradition (indeed the Romans never conceived of a public official whose office it would be to prosecute in the name of society) had been tried in both Roman Law and Conciliar Decrees with but indifferent success.

Pope Innocent III (1198-1216), himself a canon lawyer, was dissatisfied with the patent inadequacies of the previous crude forms of procedure. In the legislation he proposed for consideration at the Fourth Lateran Council in 1215, Innocent improved on and promoted the ‘inquisition’ – the enquete, the inquiry – as the ordinary method to be adopted in ecclesiastical trials. So well was it eventually received that its use spread throughout the courts of Europe and became the prevailing system in secular courts for centuries. Canon Six of the Fourth Lateran Council provided for the appointment of permanent officials, synodal witnesses, to investigate clerical abuses in a diocese and to report their findings to the bishop for action. This was the ‘general inquisition’ to remedy delinquencies in a diocese. Canon Eight of the Council, on the other hand, instituted the ‘special inquisition’ wherein the judge laws aside his traditional role of an impartial arbiter and now actually conducts an investigation of crime in virtue of his office. The Council empowered him to arrest, cite, produce witnesses, admit or reject proofs, examine the prisoner and, should the evidence warrant it, condemn the guilty, e.g., remove him from office. And interestingly enough, all this was designed, not for heresy, but to investigate and adjudicate delinquencies among the clergy itself!

Albert Shannon, The Medieval Inquisition (1991)

Torture itself was of Roman origin. Roman law in the days of the Republic permitted only a slave or a provincial to be tortured. However, in the early days of the Empire the custom was begun of subjecting to this process of examination a Roman citizen accused of treason. From then on, references to torture are numerous in the Roman codes, which came to be of general application. It is therefore not surprising that the diffusion of torture coincides with the Reception of Roman Law by the legists of the Bologna school, though some authors claim that the Germans customarily used torture even before the revival of Roman law in Europe. In any case, torture was customarily employed in secular courts in the high Middle Ages and remained as an integral part of criminal proceedings in the common law of Europe down to the French Revolution.

As far as canon law is concerned, torture entered by a different route. Though it was common in Europe it was not envisaged for ecclesiastical trials. By one of the quirks of legal history, which regards the wording of the law as sacrosanct, the process whereby a citizen of Rome accused of treason could be tortured, and, if guilty even be put to death, was taken up by Pope Innocent III for quite a different reason. He stated in his constitution of 1199 Vergentis in senium that since in common law persons guilty of the crime of treason were punished by death and the confiscation of their property, so much the more should those who strayed from the Faith and offended God be inflicted with ecclesiastical censure and confiscation of their property, for it was far more serious to injure divine majesty than human. The pope used this analogy to indicate why confiscation of heretics’ property was in accordance with common law. He never considered torture or the death penalty for heresy – quite the contrary. And in the final codification of his decrees in regard to heretics in the Fourth Lateran Council, no mention is made either of torture or the death penalty – nor were they employed by the Church.

 

Albert Shannon, The Medieval Inquisition (1991)