Contents -Volume INDEX -AUTHOR INDEX -BIBLIOGRAPHIC RECORD

Stedman and Hutchinson, comps. A Library of American Literature:
An Anthology in Eleven Volumes. 1891.
Vols. IX–XI: Literature of the Republic, Part IV., 1861–1889

Civil Law and the Inquisition

By Henry Charles Lea (1825–1909)

ON secular jurisprudence the example of the Inquisition worked even more deplorably. It came at a time when the old order of things was giving way to the new—when the ancient customs of the barbarians, the ordeal, the wager of law, the wer-gild, were growing obsolete in the increasing intelligence of the age, when a new system was springing into life under the revived study of the Roman law, and when the administration of justice by the local feudal lord was becoming swallowed up in the widening jurisdiction of the crown. The whole judicial system of the European monarchies was undergoing reconstruction, and the happiness of future generations depended on the character of the new institutions. That in this reorganization the worst features of the imperial jurisprudence—the use of torture and the inquisitorial process—should be eagerly, nay, almost exclusively, adopted, should be divested of the safeguards which in Rome restricted their abuse, should be exaggerated in all their evil tendencies, and should, for five centuries, become the prominent characteristic of the criminal jurisprudence of Europe, may safely be ascribed to the fact that they received the sanction of the Church. Thus recommended, they penetrated everywhere along with the Inquisition; while most of the nations to whom the Holy Office was unknown maintained their ancestral customs, developing into various forms of criminal practice, harsh enough, indeed, to modern eyes, but wholly divested of the more hideous atrocities which characterized the habitual investigation into crime in other regions.

Of all the curses which the Inquisition brought in its train this, perhaps, was the greatest—that, until the closing years of the eighteenth century, throughout the greater part of Europe, the inquisitorial process, as developed for the destruction of heresy, became the customary method of dealing with all who were under accusation; that the accused was treated as one having no rights, whose guilt was assumed in advance, and from whom confession was to be extorted by guile or force. Even witnesses were treated in the same fashion; and the prisoner who acknowledged guilt under torture was tortured again to obtain information about any other evil-doers of whom he perchance might have knowledge. So, also, the crime of “suspicion” was imported from the Inquisition into ordinary practice, and the accused who could not be convicted of the crime laid to his door could be punished for being suspected of it, not with the penalty legally provided for the offence, but with some other, at the fancy and discretion of the judge. It would be impossible to compute the amount of misery and wrong, inflicted on the defenceless up to the present century, which may be directly traced to the arbitrary and unrestricted methods introduced by the Inquisition and adopted by the jurists who fashioned the criminal jurisprudence of the Continent. It was a system which might well seem the invention of demons, and was fitly characterized by Sir John Fortescue as the Road to Hell.