Names of the witnesses against him were withheld from the prisoner; but this had been found necessary under the circumstances. The Cathari assassinated many persons who denounced them, in the time of Gregory IX; and the Inquisitors decided that they could not count on the cooperation of the public unless they protected the denouncer by rigid secrecy. To offset this disadvantage for the accused, they permitted him to make a list of his enemies, and the testimony of any among them was rejected. A false denunciation, furthermore, was punished with the utmost rigor. The examinations were conducted with the greatest secrecy, to protect the reputations of the accused persons, in case they might be innocent.

William Thomas Walsh, Characters of the Inquisition (1940)

So infested did the contado become with criminal and political banniti by the late 1280s that the commune began a policy of systematically sending troops into the contado to attempt to capture the ever-increasing number of banished outlaws. The basic obstacle to effective enforcement and capture of the banniti, however, was not merely the limited nature of the police forces, but also the widespread community support available to those banished. The criminal records contain a considerable number of accusations by the victims or their families charging that their offenders were receiving refuge in the contado, that relatives and friends were giving them “auxilium, consulem, et favorem.” Some of the charges were against village officials, the massari, for permitting such activities.

Law enforcement in the thirteenth century depended on the capture of criminals by members of the community, but that support was not forthcoming, except in a very selective way, even when the commune legislated sizeable rewards for those capturing banniti.

The new deterrent, impersonal attitude toward crime and punishment had not triumphed over the older values; rather the reform movement had resulted in two parallel, coexisting systems of prosecution and punishment. Charges against offenders continued to originate by private accusation initiated by the victim or his or her heirs, and in such cases the motivation behind the charge continued to be based upon modified-vendetta concepts of criminal justice. The majority of accusation cases concerned assaults. The goal in most of these cases was to force the offender to compensate the victim, acknowledge his offense, and reconcile with his victim and thereby expiate the crime without recourse to the vendetta and further violence and without damaging the honor of the parties concerned. Cases that were successfully resolved resulted in the accusor renouncing his charges, paying a small fine, and in the absolution or acquittal of the accused – and the overwhelming majority of accusation cases were concluded in this way.

Assault cases usually resulted in acquittal of the accused because assault was viewed as a tolerable crime, particularly if it occurred among members of the urban community. Indeed, the podesta, upholder of public authority in criminal justice, was not permitted to investigate assault cases in the city unless the assault involved a forensis or scolaris, or took place at night in the platea communis, or in the communal palaces. Assault was a private crime, generally processed in the courts by the accusation procedure, and only in certain circumstances did it impinge upon the public sphere and become appropriate for the inquisition process, as in assaults in the contado, where the commune feared the influence of feudators and “foreign” powers, and in the platea communis, which was considered a dangerous place since crimes there had obvious political overtones and could lead to riots that might endanger the government.

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

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)