By the time Map wrote this account, around 1180, such ideas had entered into the thinking even of professional philosophers and theologians. The Frenchman Alain de Lille, whose reputation for learning was such that he was nicknamed Doctor universalis, shared them. When he came to write his tract Against the heretics of his times, between 1179 and 1202, he had to explain why one of the major heretical sects was called Cathars. He gives the correct answer: the name comes from the Greek Katharoi, “the pure ones”; but he still feels obliged to offer an alternative etymology — from the Low Latin cattus, “cat”, because it is in this form that Lucifer appears to them and receives their obscene kisses.(12) The eminent scholastic Guillaume d’Auvergne, bishop of Paris, was equally credulous. “Lucifer,” he writes, “is permitted (by God) to appear to his worshippers and adorers in the form of a black cat or a toad and to demand kisses from them; whether as a cat, abominably, under the tail; or as a toad, horribly, on the mouth.”(13)
The atmosphere was changing. Fantasies which in the early Middle Ages had been quite unknown in western Europe were turning into commonplaces. As so often, by dint of repetition fictions were coming to be accepted as fact. Certainly by the time Guillaume d’Auvergne penned his comment, some time between 1231 and 1236, he could be sure of support in the highest possible quarters; for, as we shall see, in 1233 a particularly elaborate version of the fantasy was incorporated in a papal bull.
The (not very numerous) executions of heretics during the eleventh and twelfth centuries were almost all the work of the secular authorities or of the mob; the clergy, while keenly interested in the elimination of heresy, generally relied on persuasion and were reluctant to sanction the use of force. But even then there were exceptions. In 1025 Gerard, bishop of Cambrai, was making a visitation of his diocese. At Arras a group of heretics was denounced to him; he had these people tortured and, as they showed themselves fittingly penitent, reconciled them with the Church. In 1035 Heribert, archbishop of Milan, had some heretics denounced to him at Monteforte; having interrogated them and found them impenitent, he had them burned. As Gerard II, bishop of Cambrai, was passing through a small town on a visitation in 1077, a heretic called Rhamird was denounced; after interrogation Rhamird too was burned.
These were early examples of the type of legal procedure which lawyers and legal historians call “inquisitorial”, and which stood in marked contrast to the accusatory type of procedure which was the norm throughout the Middle Ages. Whereas under the accusatory procedure the initiative in bringing a charge lay with a private individual,** under the inquisitorial procedure it lay with the authorities. The authorities were responsible for collecting, from the public, information which might lead to the discovery of crimes and the identification of criminals. This meant that they depended on denunciations. Once armed with sufficient denunciations, the judge himself proceeded to an investigation, or “inquisition”, of the suspect.
The first beginnings of this type of procedure can be traced back to Roman law as it existed under the Empire. In Roman law, as in Germanic law, the norm was the accusatory procedure — but, there were exceptions. Notably in cases of crimen laesae majestatis the authorities were required to initiate an investigation, and private individuals were required to come forward with denunciations. Something of this attitude passed into the canon law of the medieval church. From a very early date the religious dissenter tended to be regarded as an offender against the divine majesty; and it is significant that all the earliest examples of the inquisitorial procedure occurred in the context of the struggle against religious dissent.
As religious dissent spread, from the second half of the twelfth century onwards, legislation was introduced for the purpose of combating it. At the synod of Verona in 1184 Pope Lucius III and Emperor Frederick I decreed the excommunication of heretics; moreover those heretics who refused to recant, or who after recanting had relapsed, were to be relaxed to the civil power for punishment. In response to the decrees of the fourth Lateran Council in 1215, various rulers decreed the death penalty for obdurate heresy. And in 1231 Pope Gregory IX and Emperor Frederick II, acting in concert, established a coherent legislation against heretics in the Empire. For the first time the various penalties for heresy — up to and including death — were clearly formulated.
Meanwhile the inquisitorial procedure was becoming institutionalized. Early in the thirteenth century that great administrator Pope Innocent III established it as the normal way of proceeding against clerics. A cleric could not, of course, be tried except by an ecclesiastical tribunal; nor could he, under canon law, be accused by a cleric of lower status than himself. In practice this meant that bishops, abbots and the like had been almost wholly exempt from legal sanctions. The inquisitorial procedure enabled the ecclesiastical authorities, when appropriate, to initiate proceedings against even the most exalted clerics. This was doubtless a commendable reform; but it took on a new significance when the Inquisition came into being.
The Inquisition took its name from the inquisitorial procedure and not, as is sometimes assumed, vice versa: it carried out “inquisitions”, or official enquiries, and held “inquisitorial” trials, along lines which had been worked out much earlier. But, as an institution, it also adapted the inquisitorial procedure to its own special purpose, which was the eradication of heresy. As used by the Inquisition, the procedure was extremely unfair to the accused. He was seldom allowed a lawyer, and when he was, the lawyer was less concerned to defend him than to urge him to confess. The proceedings — which under the old accusatory procedure had taken place in public — were now shrouded in secrecy. And while a confession was required from the accused (known as “the witness”) before he could be convicted, torture could be used to extract it. The accused could also be imprisoned for an indefinite period on bread and water before interrogation and between interrogations. A prisoner who held out and continued to insist on his innocence could be imprisoned for life. A prisoner who confessed would be called upon to confirm his confession three days later; when he would have to state explicitly that he had spoken of his own free will, and not as a result of torture or from fear of torture. If he performed satisfactorily, he would be formally reconciled to the Church and would have to undergo some punishment or perform some penance, light or heavy. If, on the other hand, he withdrew his confession for any reason — for instance, on the grounds that it had been extracted by torture — he counted as a relapsed heretic and (since the Church was not permitted to kill) was handed over to the secular arm to be burnt alive. The procedure perfected and systematized by the Inquisition was indeed an instrument with terrible potentialities.