The steps taken against heretics by central ecclesiastical authorities after the middle of the twelfth century were based largely upon the increasingly sophisticated scholarship dealing with universal canon law. Canon law, generally diffused and regionally applied throughout most of western Europe between the sixth and the twelfth centuries, began to be considered as a single universally applicable law during the conflicts between popes and emperors at the end of the eleventh and the beginning of the twelfth centuries. Around 1140 a Bolognese scholar, Gratian, assembled a vast number of texts from earlier sources, arranged them analytically, and commented upon them as a body of law. Gratian’s Decretum, as his collection came to be called, showed up the shortcomings of traditional law as well as its strengths, and his successors, including papal legislators and church councils, filled out the law and developed an ecclesiastical jurisprudence comparable – and in some cases superior – to that of twelfth-century Roman law.
Gratian and his successors naturally recognized Roman law, particularly since large parts of it dealt with ecclesiastical affairs, including imperial legislation against heresy and definitions of clerical status. In some respects, Gratian’s remarks and texts concerning torture continued a long tradition of ecclesiastical rejection of the practice in church affairs. Gratian insisted that clerics could not apply torture (Decretum D.86 c.25), and he echoed the older papal prescription that such confessions were not to be extorted, but spontaneous (C.15 p.6 d.1). But Gratian recognized some exceptions to this rule, also traditional. He acknowledged that accusers of a bishop might be tortured (C.5 q.5 c.4), that in some cases people in the lowest ranks of society might also be tortured (C.4 qq. 2–3), and that slaves might also be tortured (C.12 q.2 c.59). Gratian also noted the practice in Roman law; his successors, both scholars and prelates, similarly reconciled ecclesiastical law with contemporary Roman law practices. The next great collection of law, Gregory IX’s Liber Extra of 1234, contained several papal letters from the twelfth century that recognize this (X.3.16.1; X.5.41.6). By the mid-thirteenth century, then, canon law became more universally known, studied and applied, and it drew closer to the precepts of Roman law, especially in areas of mixed interest like criminal sanctions and legal procedure.
It is in this context that the history of ecclesiastical legislation and procedure against heretics has to be considered. Lucius III’s decretal Ad abolendam of 1184 has already been mentioned, and it should now be noted that the papal letter not only established the category of contumacy for heretics, but it also insisted that episcopal inquisitorial tribunals be established throughout Christendom. In the legislation of the Fourth Lateran Council in 1215 early condemnations of heresy were reiterated, and by the time of the council the legal doctrine of infamia, infamy, was inflicted upon heretics in both canon and secular law. In 1199 Pope Innocent III, building upon the relatively new laws of treason of the twelfth century, announced in his decretal Vergentis in senium that heretics were traitors to God, exactly comparable to traitors to Caesar in Roman law, thus opening up yet another broad avenue for new legal sanctions. During the early decades of the thirteenth century, the Albigensian Crusade against heretics in Languedoc and the constitutions of the Emperor Frederick II continued this emphasis. The decretal Ille humani generis of Pope Gregory IX in 1231, which for the first time charged a convent of the Dominican Order with the power to erect an inquisitorial tribunal with its authority derived directly from the pope, pursued the struggle with dissent and developed new procedures for dealing with it.
In some respects, it was the failure of the ordinary episcopal tribunals that intensified legislation after 1184 and led to the creation of the professional inquisitor. By the second quarter of the thirteenth century the crime of heresy had been aligned with the crimes of treason and contumacy in secular society, the heretic had been declared ‘infamous’, and therefore the category of heresy had come to be considered identical to those crimes which in secular law led to serious criminal penalties, required the application of the full hierarchy of proofs, and demanded confession for full conviction. The ecclesiastical inquisition did not create the inquisitorial process, with torture to secure confession, but adapted it well on in the process of discovering heresy and developing a number of different means to combat it. From the 1230s on, the Romano-Canonical procedure worked equally in ecclesiastical and lay criminal courts.
The jurisprudence of torture
From the second half of the thirteenth century to the end of the eighteenth, torture was part of the ordinary criminal procedure of the Latin Church and of most of the states of Europe. From its irregular appearances in the twelfth century and its apparent initial role as a police procedure, it entered the regular legal procedures of continental law, acquired its own jurisprudence and, indeed, became a learned specialty among jurists. One of the most striking features of torture, aside from its appearance and use in the first place, is its fascination as an object of study and academic exposition to generations of lawyers and jurists, from Azo and the anonymous author of the Tractatus de tormentis around 1263–86 to the French conservative jurist Pierre François Muyart de Vouglans on the eve of the French Revolution. The archives of European states record the first, and a voluminous and highly detailed literature records the second. Let us consider the nature and laws of torture first, and then the jurisprudence of torture.
In all legal systems there is always a greater or lesser degree of divergence between these two areas; in the case of the practice and theory of torture the divergence is more than a little perplexing. On the one hand, some scholars who study chiefly the theory see it as so dissimilar from the recorded practice that they regard it as little better than judicial hypocrisy; others regard the theory as a high standard never met by the actual courts. In the case of practice, social historians see little but unchecked brutality and sadism, while legal historians use a standard of measurement and judgement that often has little or no regard for the larger social questions involved.
In the Latin and vernacular sources the terms used are tortura, quaestio, tormentum, and occasionally martyrium, cuestion, questione, question. In German the latin form Tortur was used less frequently than the indigenous German word Folter, and other terms designated Marter and peinliche Frage (from quaestio); in French, besides la question, the terms gehine, or gene (from Gehenna) were used. In addition, most European vernaculars developed specialized idioms to describe particular kinds of torture, many of them euphemisms. By the thirteenth century, when a specific juridical doctrine of torture had taken shape, specialists could address Ulpian’s famous definition of quaestio as scholarly equals:
By quaestio is to be understood the torment and suffering of [inflicted on] the body in order to elicit the truth. Therefore, simple interrogation or incidental threats do not pertain to this edict … Since, therefore, force and torment are the features of quaestio, the quaestio is to be understood in this way.
The ensuing sections of the Code and the Digest were then interpreted in this light, and subsequent definitions of torture echoed that of Ulpian. Azo called it ‘the inquisition of truth by torment’; and the late thirteenth-century Tractatus de tormentis only slightly altered Ulpian’s statement: ‘an inquisition which is made to elicit the truth by torment and suffering of the body’. Some jurists, following the peculiar etymology of the seventh-century encyclopaedist Isidore of Seville, also spoke of the mental effects of torture, based upon the supposed derivation of tormentum from torquens mentem, ‘the twisting of the mind: since, by the suffering of the body, the mind is therefore turned’.
Thirteenth-century jurists, once they had defined quaestio, turned to its legal nature, and some called