BT 
 
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Cornell University Library 
 BT1317 .F22 1885 
 
 Law and practice of the Church of Rome I 
 
 olln 
 
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THE LAW AND PRACTICE 
 
 OF THK 
 
 CHURCH OF ROME IN 
 CASES OF HERESY 
 
 A BRIEF SUMMARY OF THE "TREATISE ON HERESY" OF 
 
 FROSPERO FARINACCI, PUBLISHED WITH THE AUTHORITY OF POPE 
 
 PAUL v., TO WHOM AND TO THE COLLEGE OF CARDINALS 
 
 AND SPECIALLY TO CARDINAL SCIPIO BORGHESE 
 
 THE GRAND PENITENTIARY 
 
 IT WAS INSCRIBED 
 
 TRANSI-ATED, WITH OCCASIONAL COMMENTS 
 BY 
 
 ROBERT C. JENKINS, M.A. 
 
 RECTOR ANH VICAR O)' I.VMINGE, HONORARy CANON' OF CANTERBURY 
 
 LONDON- 
 
 KEGAN PAUL, TRENCH & CO., ., PATERNOSTER SQUARE 
 
 1885 
 
 \Frice Sixpence] 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924029327784 
 
THE LAW AND PRACJICE 
 
 OF THE 
 
 CHURCH OF ROME IN 
 CASES OF HERESY 
 
 A BRIEF SUMMARY OF THE "TREATISE ON HERESY" OF 
 
 PROSPERO FARINACCI, PUBLISHED WITH THE AUTHORITY OF POPE 
 
 PAUL v., TO WHOM AND TO THE COLLEGE OF CARDINALS 
 
 AND SPECIALLY TO CARDINAL SCIPIO BORGHESE 
 
 THE GRAND PENITENTIARY 
 
 IT WAS INSCRIBED 
 
 TRANSLATED, WITH OCCASIONAL COMMENTS 
 
 ROBERT C. JENKINS, M.A. 
 
 RECTOR AND VICAR OF LYMINGE,' HONORARY CANON OF CANTERBURY 
 
 LONDON 
 
 KEGAN PAUL, TRENCH & CO., i, PATERNOSTER SQUARE 
 
 1885 
 
(The rights of translation and of reproduction are reserved.) 
 
TO THE 
 
 ILLUSTRIOUS AUTHOR 
 
 OF 
 ' THE VATICAN DECREES IN THEIR BEARING ON 
 CIVIL ALLEGIANCE." 
 
vi Introduction. 
 
 Andrea Rrusciotti for so many of his volumes " De 
 Haeresi," and sixty scudi as accruing from the sale of 
 the said treatise.^ The references given to the work 
 in the following pages are to the (first) edition of 1616, 
 printed at Rome, and from a copy which appears to 
 have belonged to the College of St. Bonaventura in 
 that city. Of its author, Pope Urban VIII. was ac- 
 customed to say, " Buona farina, ma cattivo sacco" for 
 the moral character of Farinacci was in strange con- 
 trast with his professional one. To the general reader 
 he is chiefly known as the somewhat unscrupulous 
 advocate of Beatrice Cenci, and as the suggester 
 of the horrible charge against her murdered father, 
 which, as Signer Bertolotti has proved in his admir- 
 able and exhaustive treatise (" Francesco Cenci e la 
 sua Famiglia"), had not the slightest foundation in 
 fact. Yet on the mere insinuation, which opens the 
 defence of Farinacci, has been • founded the grandest 
 though the most unhistoric tragedy of our age. 
 
 The attempt to extract the quintessence of a 
 folio volume of nearly seven hundred pages, printed 
 in double columns, is necessarily a difficult one. But 
 as more than two-thirds of the treatise consist of cita- 
 tions from, and references to, the numerous authorities 
 who preceded him, and include his own distinctions, 
 " limitations " and " sublimitations," of their decisions, 
 the opinions and judgments of the author (the buona 
 
 ' " Francesco Cenci e la sua Famiglia " (Bertolotti), pp. 
 203-221. 
 
Introduction. vii 
 
 farina) are not so difficult to reproduce for the reader 
 as at first appears. Nevertheless, the obscurity of 
 the subject, and its frequent complications and ap- 
 parent contradictions, arising from the absolute power 
 of the judge, and the fact that no precedents have 
 any authority or even existence in the case of heresy 
 (according to the rule, " Sententia nunquam transit in 
 rem judicatam "), lead to some obvious incongruities, 
 which, however, rather exist in theory than in prac- 
 tice. In the latter, our author is an unerring guide, 
 conducting us from the simple opening of the process 
 by way of a tevis suspicio, until it closes in the terrible 
 Auto da fi of the Campo di Fiori. Though he has 
 loaded his pages with the extracts from canonists 
 and casuists of every previous age, both Italian and 
 foreign, his real authorities are the successive bulls 
 of the Popes from Innocent IV. to Paul IV. and 
 Pius V. These, more than thirty in number, consti- 
 tute a series of laws on the subject of heresy of 
 supreme and now infallible authority, of which the 
 treatise of Farinacci may be regarded as the recog- 
 nized digest and commentary. 
 
THE LAW AND PRACTICE 
 
 OF THE 
 
 CHURCH OF ROME IN CASES 
 OF HERESY. 
 
 CHAPTER I. 
 
 or HERESY IN GENERAL. 
 
 As the term " heresy " implies " a choice or election," 
 our author expresses surprise at its application to 
 religion, inasmuch as " our faith is given to us, not by 
 our own election, but by a divine inspiration, and is 
 received by Christians through the same inspiration " 
 (p. 14). If this doctrine be true, the whole of the 
 vast and elaborate system of law which he has built 
 up in his treatise must fall to the ground. For in 
 this case the Inquisitors who are unable to inspire 
 their victims with faith, could have no possible reason 
 for condemning them for the lack of it. Nor could 
 
 A 2 
 
lo The Law and Practice of the 
 
 they, until they proved their own possession of a true 
 faith by the inspiration of the Deity, determine the 
 absence of it in the case of others. 
 
 From the definition of the term, we proceed to 
 that of the act itself. And here, after a long enume- 
 ration of the various truths the denial of which would 
 constitute a man a heretic, we arrive at the true 
 Roman doctrine, which is this : " Heretics are those 
 who believe otherwise in matters of faith than the 
 Roman Church believes," and those also " who doubt 
 or dispute the supreme power of the Pope in temporal 
 as well as spiritual matters" (p. 14). Nor is actual 
 disbelief necessary in a charge of heresy, for doubt 
 itself brings us within its scope (p. 30), " Dubius 
 in fide h(Breticus est" even though the doubt be limited 
 to a single article of the faith — a general or uni- 
 versal doubt constituting the still more terrible sin of 
 apostasy (p. 33). 
 
 This severe rule admits, however, of certain limi- 
 tations arising out of (i) credulity, (2.) simplicity, and 
 (3) ignorance, (i) For a person may believe what 
 is false, conceiving it to be the faith of the Church, 
 and is exempted hereby from the charge of heresy 
 if he at once submits to correction, though (it appears) 
 he is liable to torture in order to discover whether his 
 credulity is intentional (p. 56). (2) Simplicity is held 
 to be a legitimate excuse in the case of illiterate and 
 rustic persons, where no opportunity presents itself 
 of their being better informed. (3) Ignorance, where 
 
Church of Rome in Cases of Heresy. 1 1 
 
 invincible, is not punishable as heresy, except in 
 learned men and divines, and unless it further in- 
 volves an ignorance of the natural law. But in every 
 case abjuration and revocation of the error is to be 
 enforced. 
 
 We pass on from the heretic himself to the fau- 
 tores, or encouragers of heretics, who are divided into 
 three classes : those who are so by omission or 
 negligence ; those who are so by co-operation and 
 deed ; and those whose encouragement is only by 
 counsel or word. Of the first class are all those 
 princes and lords who, after summons from, the 
 Church, neglect to extirpate heretics, or fail to per- 
 secute them. These are ipso facto deprived of their 
 possessions and treated as heretics. From this 
 highest stage of neglect the ban is extended to every 
 kind oifautor hcereticorum, down to those who neglect 
 to correct a heretic and reduce him from his error 
 (p. 148). The penalties against all these are declared 
 to be excommunication, infamy, confiscation of goods, 
 and banishment, or any arbitrary fine the judge may 
 think fit to inflict (pp. 155, 156). 
 
 The defenders of heretics fall under a like con- 
 demnation, though a distinction is drawn between 
 the defence of the person of the heretic and the 
 defence of the heresy itself. 
 
 The hinderers of the Inquisition and its ofiicials 
 are far more severely dealt with. These are at once 
 suspected of heresy, and are subject to interrogation 
 
1 2 TJie Law and Practice of the 
 
 and even torture to discover their motives. The 
 terrible penalties of such persons are laid down in 
 the bull of Pius V. (April, 1 569), " Si de protegendis." 
 
 The credentes hcereticorum, who follow the errors 
 of heretics but do not originate them, are next dealt 
 with, and these are to be punished as heretics, though 
 certain qualifications are admitted in their behalf. 
 Next the receivers of heretics are brought within the 
 class of faiitores, and made liable to the penalty of 
 heretics. Whether a father receives his son, a husband 
 his wife, or a friend his friend, — all alike are involved 
 in the terrible sentence. Finally, the conversation 
 and communication with heretics, and all social rela- 
 tions with them, involve the suspicion of heresy and 
 even justify the application of torture (p. 194). All 
 business relations with heretics are equally prohibited, 
 as well as contracts or gifts, the only exception being 
 made in the case of those who converse with in order 
 to convert them. 
 
 The crime of apostasy (also having a threefold 
 division, viz. from the faith, from obedience, or from 
 a religious order) is treated in the same manner and 
 involves the same penalties (p. 198), viz. death, con- 
 fiscation of goods, privation of estates and dignities, 
 excommunication, and every other consequent of 
 heresy (p. 209). 
 
 Schismatics, aniong whom are included all who 
 do not obey the Apostolic See, are treated with less 
 severity, though they, like heretics, are to be com- 
 
Church of Rome in Cases of Heresy. i 
 
 o 
 
 pelled to return to the Church (p. 237). From this 
 brief view of the grounds and principles upon which 
 a process of heresy is to be based, we proceed to 
 consider the course and methods by which it is 
 conducted, following in succession the steps of our 
 experienced guide. 
 
1 4 The Law and Practice of the 
 
 CHAPTER II. 
 
 THE PROCEDURE IN CASES OF HERESY. 
 
 In order to see clearly the course of procedure in 
 a case of heresy, it is necessary to lay down certain 
 preliminaries, which our author has placed at tjie end 
 of his treatise, instead of making them the foundation 
 of the entire process. 
 
 I. An Inquisition into the guilt of a party may 
 be made without any actual report {non prcecedente 
 diffamatione), which, according to law and equity, 
 must precede any criminal inquiry in every other case 
 (cf. pp. 271 and 657). 
 
 II. A sentence of acquittal in the case of heresy 
 can never exempt a person from a second trial on 
 the same charge or be cited as a precedent. In legal 
 phrase," Sententia nnnquam transit in rem judicatam" 
 This is enforced by the bull of Pius V., in 1567, 
 " Inter multiplices curas," in which the inhuman Con- 
 stitution of Paul IV., " Ctim ex ApostolatHs official' is 
 re-enacted. 
 
Church of Rome in Cases of Heresy. 1 5 
 
 III. A person may be tried anywhere for heresy, 
 wherever and at whatever distance of time or place 
 the heretical act may be charged (p. 657). This 
 would render a conviction inevitable in the case of 
 those who were unable to bring witnesses from a dis- 
 tance — even supposing that the time and place and 
 other circumstances of the charge were known to 
 them, which we shall presently find are concealed 
 from them altogether. 
 
 IV. No lapse of time creates a prescription against 
 the charge of heresy (p. 663). 
 
 y. No faith is to be kept with heretics, either by 
 private persons or by public authorities (p. 661). 
 
 VI. Cities or states falling under a general charge 
 of heresy may be destroyed ^ or alienated (p. 663). 
 
 These regiil<^ juris, in singular repugnance to 
 those both of the civil and Canon law, seem to 
 render an ordinary suit or process of law a mere 
 fiction, and to make the elaborate description of the 
 course of procedure given by our author a work of 
 supererogation. The authorities of the Roman In- 
 quisition and the Roman jurists have, nevertheless, 
 
 1 The cruel and terrible destruction of the city of Castro by 
 Pope Innocent X. is admirably described by Professor Ciampi, 
 in his remarkable work, " Innocenzo X. Pamfili e la sua Corte : " 
 " Fortezza, chiese, case furono distrutte : costretti i vinti mede- 
 simi a distruggere dalle fondamenta la patria loro e girsene 
 limosinando pei prossimi castelli — Una solitaria colonna addito 
 jl sito della cittk con la scrizione : Qui fu Castro. Mi dimenti- 
 cava di dire che con molta cura furono poste croci nei luoghi 
 ov'eran gik chiese e cimiteri : ironica riverenza ! " (p. 71).- 
 
1 6 The Law and Practice of the 
 
 laid down the following course of legal procedure in 
 case of heresy. 
 
 We are first instructed that the process is to be 
 conducted summarily, without noise or excitement, and 
 with a judicial appearance {summarii, sine strepitu, 
 et figurcL judicii), which is interpreted to mean that 
 every ordinary judicial requirement may be dispensed 
 with, including the publication of the charge and the 
 office of the advocate {non exigi libellum nee litis 
 contestationem), pp. 262, 263. The semblance of a 
 judicial act is to be preserved, but all the safeguards 
 and restraints of ordinary human law abolished. 
 
 The suit originates with one of these three acts : 
 (i) accusation ; (2) inquisition ; (3) denunciation. 
 
 We begin with the initiation of the process by 
 accusation. And here we find that (contrary to the 
 prohibitions of the civil law) every one, however dis- 
 qualified by his relation to the accused, and how- 
 ever criminous and incapacitated himself, may become 
 an accuser ; servants against their masters, children 
 against their parents, laymen against clergy, the 
 most infamous persons against those of the most 
 unimpeachable character. Women, persons under 
 age, and even known enemies of the accused, may 
 become accusers in the case of heresy, "because, 
 being a public crime, all are admitted as accusers" 
 (p. 266). "Neither the place nor the time at and 
 during which the crime was committed are to be 
 stated, lest the accused should discover from these 
 
Church of Rome in Cases of Heresy. 1 7 
 
 who are his accusers, and should thus be enabled to 
 contrive some fraud in order to conceal the truth" 
 (p. 267). Nor yet is a copy of the accusation to be 
 given to the accused, "nor can the accusation be 
 annulled through any failure of those solemnities 
 which, in other cases, are required in a charge — even 
 the omission of the place and time being no bar to 
 the procedure, if the charge is made out (jz de 
 crimine constat)." How the charge can possibly be 
 made out where every fact connected with it is sup- 
 pressed, is a problem of Pontifical law not easily 
 solved by a mere civilian. So dangerous, however, 
 did the procedure by accusation become to the 
 accuser, that the method of denunciation was sub- 
 stituted for it. "Because the method of proceeding 
 by accusation is full of perils and litigations, an ex 
 officio inquisition and process is adopted." Accord- 
 ingly, our author adds, "the Inquisitor ought not 
 willingly to proceed by accusation ; not only because 
 in matters of faith it is generally disused, but because 
 it is too dangerous to the accuser, and renders him 
 liable to litigation. And therefore, in the present 
 day, in the Supreme Tribunal of the Inquisition of 
 the City (of Rome) and of the whole of Christendom, 
 the process by way of accusation has, become obsolete^ 
 and those who appear against heretics are admitted, 
 not as accusers, but as denouncers" (p. 269). We 
 may here observe that the establishment of the office 
 and Congregation of the Inquisition in Rome took 
 
 A3 
 
1 8 The Law and Practice of the 
 
 place under Paul III., at the instance of Cardinal 
 Caraffa, afterwards Paul IV., who on his accession - 
 erected for it a separate tribunal. Pius V. gave to 
 this tribunal the supreme powers which w» find it 
 invested with in the present treatise. The induce- 
 ments and encouragements held out to the accuser, 
 and the insuperable difficulties placed in the way of 
 the accused, which render the one almost invincible 
 and the other defenceless, must present a painful 
 contrast to the mind of every one in whom the first 
 principles of justice and even humanity are not 
 altogether extinct. 
 
 Before we pass to the procedure by denunciation, 
 we must define that which is distinguished as the 
 procedure by inquisition. This is either special or 
 general — the former being an individual process by 
 means of inquiry by the Inquisitor, which a levis 
 suspicio is sufficient to originate. The latter is the 
 Inquisitorial Visitation of a city or diocese, respect- 
 ing which a general suspicion has been raised. As 
 this is somewhat an exceptional process, we will pass 
 on at once to the procedure by denunciation. 
 
 Denmuiation is defined to be " a notification that 
 the crime has been committed " — or more fully, as an 
 " information {delatio) of some crime, made before 
 a competent judge, without any written record [sine 
 jnscriptione), either for the injunction of a penance to 
 be performed or of a" punishment to be imposed " 
 (p. 274). The effect of it is to cause inquisition to be 
 
Church of Rome in Cases of Heresy. 1 9 
 
 made, and, when an evil report accompanies it, it 
 justifies the application of torture (p. 275). Not only 
 is denunciation admitted by personal appearance, but 
 those who are absent can denounce by letter addressed 
 secretly to the Inquisitors, so long as they seem to them 
 to be trustworthy, and confirm their allegations by 
 oath. The tender care which the Church extends to 
 denouncers of heresy is further shown by the rule that 
 " the denouncer is not bound to verify his denuncia- 
 tion, nor can he be punished for not verifying it." 
 Nor yet is he bound to offer himself as a witness or 
 to become a party in the suit, it being " enough for 
 him to say that he denounces it through zeal for the 
 faith, or from the fear. of the consequences if he failed 
 to denounce it '' (p. 276). 
 
 There is, moreover, a fourth method of procedure — 
 per viam notorii ; i.e. where the heresy is public and 
 notorious, and the heretic gives outward proofs of his 
 guilt, as by public preaching or open confession, or by 
 writing heretical works. Here the process is rapid and' 
 summary. Our author gives four stages of heretical 
 pravity coming within this description : there is the 
 manifest heretic, the notorious heretic, the evident 
 heretic, and the occult heretic. More discriminating 
 writers place, we are told, even fourteen degrees be- 
 tween the manifest and the occult classes (p. 280). 
 Absent and contumacious heretics are next dealt 
 with, and their fate is to be tried, condemned, and 
 burned in effigy — a very frequent exhibition in Rome 
 
20 The Law and Practice of the 
 
 in the days of Pius V., and even in recent periods. A 
 French archbishop and five bishops were thus burned 
 in tSi^ in the presence of the sainted Pope on 
 December ii, 1566. 
 
 A dreadful chapter now opens upon us, and we 
 are led by our guide into the torture-chamber of the 
 " Supremunt Urbis et Totius Christiance Reipublicce 
 Sanctceet Generalis Inquisitionis Tribunal" the slaugh' 
 ter-house of thousands and tens of thousands of con- 
 sciences and lives, where (as our author admits) not 
 a few of the inhuman judges " keep their victims in 
 torments as long as they persevere in their protesta- 
 tions of innocence, and torture them over and over 
 again on their successive retractations " (p. 289). 
 " Torture," we are told, " is to be applied when the 
 truth cannot otherwise be elicited " (p. 288), which can 
 only mean that, where the accused asserts his inno- 
 cence, and every proof against him fails, he is to be 
 compelled by torture to confess his guilt. In order to 
 proceed to the torture, one witness is declared to be 
 sufficient (p. 290), and it may be applied even to those 
 who have confessed and been convicted in order to 
 force them to reveal their accomplices. " For this 
 crime," says our author, " has no existence without 
 accomplices {non stat sine complicibus)!' And as 
 heresy is a crime to be extirpated on account of the 
 common salvation, the torture is to be applied to dis- 
 cover other heretics and heresies besides the special 
 one. 
 
Church of Rome in Cases of Heresy. 2 1 
 
 And here our author is supported by the decrees of 
 Popes Paul IV. and Pius V., authorizing the applica- 
 tion of torture in these cases in order to arrive at a 
 revelation of accomplices. Not even a single witness 
 is necessary in order to justify this recourse to torture. 
 Slander or defamation of character is held to be 
 sufficient. It may be also applied where the accused 
 refuses to answer or answers obscurely. In every 
 case there is no definite rule or practice, as everything 
 depends upon the arbitrary will of the judge, from 
 whom, except to the Grand Inquisitor (and then only 
 in the earlier stages of the process and in interlocutory 
 decrees), there is no appeal. 
 
22 The Law and Practice of the 
 
 CHAPTER III. 
 
 THE CITATION, THE DEFENCE, AND THE SENTENCE. 
 
 By a singular dislocation of the order of his subject, 
 our author has made his chapter on the sentence to 
 precede those on the citation and the defence of the 
 accused. But as, in the case of the Irtquisition, the 
 condemnation of the " guilty " {reus, as the accused is 
 always termed in this treatise) is a foregone conclu- 
 sion, the castigatque may not unreasonably go before 
 the auditque in this Rhadamanthine process. We will 
 venture, however, here to adjust the stages of it in 
 their proper legal order. Inasmuch as the figura 
 judicii is required to be preserved, the suit begins by 
 the citation of the accused or denounced, as the case 
 may be. A "probable suspicion " — equivalent, it would 
 seem, to the levis suspicio mentioned elsewhere — is 
 deemed sufficient to set in motion the terrible tribunal. 
 This citation is said to be necessary in order that the 
 accused may be able to defend himself But it is 
 only one of the many judicial phantoms which light 
 but to " lure to his doom " the unhappy victim. For 
 
Church of Rome in Cases of Heresy. 23, 
 
 when a man knows not who are his accusers, and the 
 circumstances of the charge both in person, time, and 
 place are equally unknown to him ; when even his 
 advocate (if any one ventures to incur for his sake the 
 danger of being involved in his accusation) can have 
 no proper means of defending him, or even of being in- 
 structed for his defence ; — ^the citation becomes a mere 
 legal fiction. Means of defence (we read, nevertheless) 
 are not to be denied to heretics, and the judge is 
 bound to give them and also to supply a copy of the 
 proofs ; " but the names of the witnesses and of the 
 accuser are to be suppressed " (pp. 309, 310). The 
 accused is, like our Lord, blindfolded, though, unlike 
 his Divine Master, he is unable " to prophesy " who 
 it is that " smites " him. Even if he could secure the 
 ablest advoca.te, if Farinacci himself had been his 
 counsel, every means of defence is cut away from 
 him : time, place, persons, circumstances, are all a 
 terrible blank ; nothing is real or visible but the ter- 
 rible charge involving certain death and utter ruin. 
 If he meets it by a direct denial, he is at once sub- 
 jected to torture, though we are told that the advocate 
 may interpose to urge his exemption from it (p. 310) ; 
 on what grounds we are not told, but with what suc- 
 cess we may easily imagine. In the case of notorious 
 heresy, the means of defence are not to be given nor 
 yet the copy of the charge. This rule is limited in 
 certain cases, but its injustice can hardly be extenuated 
 in any (p. 312). And here a singular anomaly is 
 
24 The Law and Practice of the 
 
 noted by our author, which even from him draws out 
 a word of remonstrance : " The copy of the charge 
 and the proofs are not to be given to the accused till 
 after the accusation and defence are completed." Well 
 may he ask, arid he does ask, " How can the accused 
 draw up his defence unless he has previously seen the 
 charge against him ?" (p. 312). He forgets the three 
 fundamental laws of a process before an Inquisitor 
 — " summarik, sine strepitu, et figurd judicii." The 
 sentence is to be summary, without any litis con- 
 testation or legal contention, and yet with the sem- 
 blance of a trial, by giving a copy of the charge, when 
 it is no longer of any use, to the accused. And as the 
 summary character of the process is to be strictly 
 observed, delays are to be restricted, the period for 
 the defence shortened, and everything done to hasten 
 the ineluctabile fatum. 
 
 It would appear from the later portion of his 
 treatise that our author rather states in this 
 earlier chapter the theory than the practice of the 
 Holy Office in regard to the admission of advo- 
 cates, and the opportunities given to the accused 
 for" his defence. For at p. 671 he declares, with- 
 out reserve or qualification, that "an advocate or 
 proctor for the defence is not properly admitted or 
 allowed." ,For such an advocate would himself be- 
 
 1 Properly, the putting in the plaintiff's declaration and the 
 defendant's answer (Cic. pro Q. Roscio). But in the Canon 
 Law (as in this place) the term is used, oosely, and appears to 
 include all the preliminaries of a suit. 
 
Church of Rome in Cases of Heresy. 25 
 
 come a " defender " or fautor of the heretic. Nor 
 would an advocate be allowed in the case of one 
 charged as a credens, fautor, or defensor hcsretici (ibid.). 
 But while every means of defence is cut off during the 
 process itself, and \hQ figures judicii, which stand like 
 spectres around the terrible judgment-seat of the 
 Inquisitor, fade away before the hideous reality of the 
 sentence, a yet sadder privation remains. While 
 justice has been violated at every stage of the pro- 
 ceeding, mercy is still more inexorably excluded at 
 its close. " No one can plead or supplicate in behalf 
 of the heretic." This, by the bulls of Paul IV. and 
 Pius v., is made a criminal act, involving the poor 
 suppliant, even if it be a wife pleading for her husband, 
 a father for his children, children for their parents, in 
 the guilt and condemnation of their hapless relatives. 
 The most burning words of indignant eloquence would 
 seem unequal to express the horror which must fill 
 every heart not utterly devoid of the first instincts of 
 humanity at this horrible law, laid down (be it remem- 
 bered) by one whom the Church of Rome has invested 
 with the dignity of a saint, and whose example, in 
 " destroying the foes of the Church," she prays annu- 
 ally may be followed by all her children. 
 
 As no appeal whatever is allowed after the defini- 
 tive sentence (pp. 312, 313), we are led on at once to 
 the last scene of a tragedy which, if the Church of 
 Rome could ever again acquire an ascendancy in 
 Europe, would be re-enacted in all its horrors ; for the 
 
26 The Law and Practice of the 
 
 laws which originated it have never been, and now 
 can never be, repealed. The suit is said to terminate 
 either in the absolution or condemnation of the 
 accused ; and though the process is conducted 
 secretly, the sentence must be publicly delivered and 
 in the daytime. It must be given in writing, and be 
 declaratory — whatever that term may mean (pp. 295, 
 299). Where the defence of the accused is impossible, 
 it is obvious that a process like this (except by secret 
 influences or bribery) could never end in absolution, 
 though even in this case the " satisfaction " which pre- 
 cedes all the absolving mercies of the Church of 
 Rome would doubtless be exacted to the uttermost 
 farthing. 
 
 But another alternative remains — the confession 
 and repentance of the accused. Overcome with 
 this long persecution, and enfeebled and broken- 
 down with torture, even the innocent may be forced 
 into a confession and thus secure the absolution of 
 the Church. But here the cruelty of the Roman 
 tribunal, always refined, beconies in a manner sub- 
 limated, and after the absolution (only another ^^^^« 
 judicii) has been pronounced, he receives this sentence : 
 " Varum quia in Deum et sanctam Ecclesiam modis 
 praedictis deliquisti, ideo pro condign^ poenitentii 
 mandamus te in carcerem detrudi, ibique te perpetuo 
 remanere praecipimus " (pp. S93-603). Thus per- 
 petual imprisonment in what the Clementine Consti- 
 tutions call a "career durum sive arctum," which the 
 
Church of Rome in Cases of Heresy. 2 7 
 
 canonists describe to mean a "career existens in loco 
 infimo et subterraneo, in quo non videtur claritas solis 
 neque lunce" is the lot even of the repentant. To 
 return to the bosom of the Church is to enter for ever 
 into a captivity worse even than the terrible death 
 through which the wearied and tortured victim of this 
 religion of Moloch would at least enter into rest. In 
 the case, however, of him who bravely endures unto 
 the end, that end is very near. The last offer of 
 " reconciliation " being rejected, and the sentence pro- 
 nounced, the Church hands over her victim to the 
 secular power, much in the manner in which our Lord 
 was remitted by the chief priests to Pilate, and for the 
 same reason, viz. that it was not lawful for them to 
 put any man to death. Yet the civil power is here 
 only the executioner, for it is powerless to commute 
 or even to mitigate the fatal sentence — excommuni- 
 cation, with all its consequences both temporal and 
 spiritual, being the penalty of the neglect of the 
 Church's bidding or even of the slightest hesitation or 
 delay in obeying it. 
 
 We are introduced to the last scene in these 
 words : " The rule is that heretics are to be con- 
 strained and compelled to return to the faith, the 
 fear of death being urged upon them. Otherwise 
 they are to be condemned to death." This rule is 
 given more largely (p. 433) thus : " If heretics are 
 unwilling, through fear of punishment, to return to 
 the faith, it is necessary for them to be punished in 
 
28 The Law and Practice of the 
 
 the sight of all men, though they may allege that 
 faith is a free matter, and maintain that no one ought 
 to be punished on account of heresy," The late Pope 
 Gregory XVI., in his encyclical " Mirari vos," confirms 
 this conclusion of Farinacci, declaring that "the 
 opinion that liberty of conscience ought to be claimed 
 for every man is absurd and erroneous and even 
 insane." Of the nature of the punishment assigned 
 to those who assert this claim, our author (quoting 
 Gomez) affirrns "that an impenitent heretic should 
 not only be condemned to death, but also burned, is 
 a penalty approved by the divine, civil. Canon, and 
 customary laws" (pp. 434, 435). 
 
 The Church, having thus completed her unrighteous 
 work, proceeds to invoke against her victim the exe- 
 cution of her sentence. She " leaves him to be pun- 
 ished at the will of the secular power with a due 
 severity {debitA animadversione puniendus)" (p. 435). 
 What this punishment is we have already seen. The 
 secular power is bound to carry out the extreme 
 penalty fully and without delay (p. 363). No attempt 
 to commute or even modify the sentence is permitted 
 for a moment, and the only duty imposed upon it is 
 the inquiry into the identity of the person delivered 
 to it for execution (p. 365). This inviolable law we 
 must bear in mind in order to estimate the act of 
 refined hypocrisy which closes on, the part of the 
 Church this ritual of human sacrifice. 
 
 In delivering the victim to a certain death, " the 
 
Church of Rome in Cases of Heresy. 29 
 
 Church prays in his behalf that he may not be put to 
 death " (p. 437). What, we may well exclaim, can be 
 the meaning or the motive of this inexplicable inter- 
 cession, which the canonists tell us " ought not to be 
 simulated or fictitious, but true and effectual " ? We 
 find the reason for it in the fact that " every shedder 
 of blood is under the ban of the Church as partaking 
 in blood-guiltiness " (p. 437). Every cleric, moreover, 
 by such a participation, would incur the severe penal- 
 ties attached to the ecclesiastical crime of irregularity. 
 And hence our author adds, "Although this inter- 
 cession of the ecclesiastical judge seems to be rather 
 vocal and colourable than effectual, it is nevertheless 
 necessary, and has a sufficient effect in the excuse it 
 gives to the judge against the charge of irregularity, 
 which he would incur if the said intercession had not 
 been made." 
 
 Again we are strangely reminded of the conduct 
 of the priests and judges of our Lord when their con- 
 demnation of the innocent blood was completed, who 
 " went not in themselves into the judgment-hall, lest 
 they should be defiled, but that they might eat the 
 Passover." And now that our unfortunate heretic has 
 been condemned and executed, let us consider the 
 temporal results which follow the condemnation for 
 heresy, even if the accused should be so fortunate as 
 to escape from the fangs of the Inquisitors. 
 
The Law and Practice of the 
 
 CHAPTER IV. 
 
 THE CONSEQUENTS OF A CONDEMNATION FOR 
 HERESY. 
 
 I. A HERETIC is declared to be diffidatus et 
 bannitus (p. 441), which means that he is removed 
 from all protection of every human law, and has 
 become, in the fullest sense, an outlaw (p. 442). 
 
 II. As such, " he may be attacked and killed with 
 impunity." 
 
 III. He can be seized and captured ;by any private 
 person without judicial sanction (p. 442). 
 
 IV. He can be spoiled of his goods, according to 
 a decree of Pope Clement IV., in 1265. 
 
 V. Even if a cleric, he can be attacked and slain 
 without the penalty of irregularity being incurred. 
 
 VI. War may be proclaimed against him, if he is 
 incapable of persecution in any other way (p. 443). 
 
 VII. He incurs further the penalties of infamy, 
 bringing with it other kinds of disgrace and disability 
 (P- 445)- 
 
Church of Rome in Cases of Heresy. 3 1 
 
 VIII. Every act done by a heretic is null and void. 
 (Why may not, then, his heresy itself be nullified .?) 
 
 IX. All the debtors to a heretic are freed from 
 their debts and obligations to him (p. 451). 
 
 X. His goods are to be confiscated (p. 458), and 
 those also of apostates, schismatics, and fautors of 
 heretics. 
 
 XI. Their houses and meeting-places are to be 
 destroyed and never rebuilt. Also the houses of 
 those who refuse admittance to Inquisitors searching 
 for heretics (p. 469). The houses belonging to such 
 persons are equally to be destroyed, and the goods 
 contained in them confiscated and assigned to those 
 who capture the heretic. 
 
 XII. The dowry of a wife marrying a heretic 
 knowingly is to be confiscated, and herself suspected 
 of heresy (p. 473). 
 
 XIII. A heretic is incapacitated from making a 
 will — a law which is extended to apostates and fautors 
 of heretics. Nor is his will revalidated even if he 
 should be reconciled to the Church (p. 487). 
 
 XIV. A heretic is incapable of succession, or of 
 taking any inheritance or gift from a living person 
 (p. 488). 
 
 XV. The children of heretics are by their father's 
 act deprived of their inheritance (p. 527), nor of this 
 alone, but of every kind of support {sedetiam alimentis, 
 p. 527). This is the result of the terrible law of 
 Paul IV., "Cum ex Apostolat^s officio," in which heretics 
 
32 The Law and Practice of the 
 
 are to be deprived of every last office of humanity 
 [pmni consolatione humanitatis destituantur). This law 
 extends to schismatics and the descendants of heretics 
 to the second generation. 
 
 XVI. All such persons are declared infamous and 
 incapable of inheriting any property whatever. It 
 would be interesting to inquire under what dispensa- 
 tion Cardinals Manning and Newman have been 
 rehabilitated, and relieved from the inheritance of 
 infamy derived from their fathers ; not to speak of a 
 crowd of less eminent converts. 
 
 The manner in which the confiscated property of 
 heretics is to be appropriated is thus laid down by 
 our author, who, as Procurator-Fiscal, an office which 
 he executed with great severity, is the most competent 
 witness at this point of his subject. The effiscts of 
 condemned heretics are (he tells us) to be divided 
 into three portions : one to devolve to the state ; the 
 second to go to the officials of the Inquisition ; and the 
 third to be deposited in some safe place, to be dis- 
 tributed at the will of the bishop or Inquisitor, in 
 , behalf of the faith and for the extirpation of heretics 
 (p. so6). 
 
 Never could any .scheme be devised more ingenious 
 in its rapacity or more insidious in its cruelty than 
 this. For, first, the civil power is bribed to exert its 
 influence for the discovery and invention (if we may 
 so call it) of heretics. Secondly, the officials of the 
 Inquisition and its judges have a direct interest in 
 
Church of Rome in Cases of Heresy. 33 
 
 securing the condemnation of every one accused of 
 heresy. And thirdly, a fund is provided for a 
 detective police, to assist them in carrying on the 
 discovery and to encourage the propagation of 
 heresies by that system of espionage which Sixtus 
 V. brought to such perfection in Rome and the Papal 
 States. This tripartite division, though somewhat 
 varied and modified according to the usages of Spain, 
 Milan, Mantua, Piacenza, and other places, has been 
 established by many Papal decrees, and notably by 
 the bull of Eugenius IV., beginning " Sedis Apostoliaz 
 providentia" 
 
 We would willingly believe that the system of 
 law we have here presented in the briefest possible 
 form to the English reader, even if it had never been 
 set aside or repealed, had at least become obsolete, 
 and had received no recognition from the Church of 
 Rome in a later day. But Cardinal Vincent de Petra, 
 himself the Grand Penitentiary in the days of the 
 learned and enlightened Pope Benedict XIV., has, in 
 his " Commentary on the Bullarium Magnum," con- 
 firmed and vindicated the authority and vitality of 
 every one of the bulls against heretics, over thirty 
 in number, which form the basis of the work of 
 Farinacci. Having claimed all heretics as belonging 
 to the . Church by reason of their baptism, he 
 considers them as such liable to capital punishment 
 (" Comment.," tom iii. p. S). He adds, " Pcenam ignis 
 in hsereticos justam et debitam esse, certum est ; immo 
 
34 The Law and Practice of the 
 
 si majori ac severiori poeni contra ipsos experiri 
 posset, semper eis debitam esse non est ambigendum " 
 (p. 6). His commentary was published in 1729, and 
 he was one of the electors of Benedict XIV., in 1740. 
 The encyclicals of Gregory XVI. and of Pius IX. 
 breathe the same spirit, though they affect a gentler 
 language. Rome never learns and never forgets. 
 The repudiation of her ancient doctrine would involve 
 that fatal principle of "liberalism," which is so 
 indignantly repudiated and condemned in the 
 allocutions of Gregory XVI. and Pius IX., "Mirari 
 vos " and " Jamdudum cernimus." 
 
 We are, therefore, inevitably compelled to the 
 conclusion that the doctrine of the Roman Church in 
 the matter of heresy is unchanged, and, since the 
 Vatican definition, has become unchangeable ; and 
 that her practice would be as unchangeable as her 
 doctrine, if she ever had the means pf re-establishing 
 her throne upon the ruins of the Christianized 
 civilization of Europe. It were well if every nation 
 in Christendom could lay to heart the solemn warning 
 of the great and learned Bishop Pannilini of Chiusi 
 and Pienza, uttered in the Assembly of Bishops at 
 Florence, just a century ago, after a solemn de- 
 nunciation of the bulls which have here been cited. 
 We will give it in his own language, as it would seem 
 feebler in a translated form : " lo prego i Sovrani per 
 il bene de 'loro sudditi a reflettere seriamente alle 
 conseguenze di questi principije di questo sistema, e 
 
Church of Rome in. Cases of Heresy. 35 
 
 ad esiminare alquanto I'lstoria dei tumulti, e delle 
 sedizioni nati da molti secoli fino a poi. lo li prego a 
 considerare che le usurpazioni, i soUevamenti, i tu- 
 multi, le depredazioni sono i prem-j-proposti a coloro, 
 che sub nostrd et successorum nostrorum Romanorum 
 Pontificiim obedientid fuerint ; e il merito per arri- 
 varvi h lo spogliarsi d'ogni sentimento d'umanita 
 omnique humanitatis solatia destitiiant " {vide BuIIam 
 Paul IV., " Ctitn ex Afostolat^s officio ")} 
 
 ' "Atti deir Assemblea tenuta in Firenze, 1786," torn. iv. 
 p. 301. 
 
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