Proving Woman (3 page)

In short, in the course of proving the guilt or innocence of an individual, Christendom had hitherto resorted to testing or
“proving” God. This must stop. The host would henceforth be reserved for the two kinds of proof envisaged by Lateran IV: its
transubstantiated nature proved the miraculous powers of the sacrament and clergy alike against heretical aspersions,
³⁷
even as mandatory reception of the sacrament proved the orthodoxy of the faithful. New applications, moreover, were found
for the Pauline text that had paved the way for the eucharist as an ordeal: “But let a man prove himself: and so let him eat
of that bread and drink of the chalice. For he that eateth and drinketh unworthily, eateth and drinketh judgement to himself”
(1 Cor. 11.27–28).
³⁸
Theologians such as Aquinas would use this passage to underline the Christian’s need to con-fess before receiving the host.
³⁹

But if Lateran IV precipitated a crisis in proof, it also pointed to its possible resolution. In particular, Canon 8, entitled
“On Inquests” (
De
inquisitionibus
), introduced the inquisitional procedure to the church, thus capping a series of Innocent III’s decretals that date back
to 1198. Directing his strictures not to secular princes but to ecclesiastical prelates, Innocent III set out the basic rules
for investigating the wrongdoings of a subordinate.

Not only when a subject has committed some excess but also when a prelate has done so, and the matter reaches the ears of
the superior through an outcry or rumour which has come not from the malevolent and slanderous but from prudent and honest
persons, and has come not only once but frequently (as the outcry suggests and the rumour proves), then the superior ought
diligently to seek out the truth before senior persons of the church. . . . However, the superior should carry out the duty
of his office not as if he were the accuser and the judge but rather with the rumour providing the accusation and the outcry
making the denunciation. . . . The person about whom the inquiry is being made ought to be present, unless he absents himself
out of contumacy. The articles of the inquiry should be shown to him so that he may be able to defend himself. The names of
witnesses as well as their depositions are to be made known to him so that both what has been said and by whom will be apparent.
⁴⁰

An importation from Roman law (hence the allusion in Pope Stephen’s precocious objection to the ordeal, cited by Aquinas),
the inquest (or inquisition) was not reliant on the accusatorial process that sustained the mechanism behind the ordeal. Rather,
the judge was empowered to proceed ex officio on the basis of rumor alone.

The new system soon spread from ecclesiastical to secular tribunals, taking up all the space formerly occupied by the ordeal
and then some. This transition from personal accusation to the allegedly more disinterested inquest both coincided with and
confirmed the tendency toward centralized authority apparent in church and state alike.
⁴¹
Yet the abandonment of the ordeal and the incumbent shift from accusatorial to inquisitional procedure left behind a residue
of uncertainty in the judges’ minds as to what constituted impeccable proof. As a result, there was an increased emphasis
on obtaining a full confession as the singular means of establishing certainty. Moreover, this emphasis will, in turn, soon
lead to the reintroduction of torture, another legacy of Roman law, as an infallible means of securing the requisite proof.
It is certainly no accident that the most common euphemism for torture was, in fact, the Latin word for proof:
probatio
.
⁴²

That the same council privileged confession in two ostensibly separate venues is hardly adventitious. The concurrence reflected
the double genius of Innocent III, whose theological background supplemented the legal training that he shared with a distinguished
line of canon lawyer popes. In other words, Innocent’s legal acumen, particularly his knowledge of Roman law, was interpenetrated
by all the theological emphases on the sacraments current at the University of Paris.
⁴³
His legal training alone might have predisposed the advancement of confession over the rest of the penitential process, as
articulated by Lateran IV.

Moreover, this timely emphasis on sacramental confession, corresponding, as it did, to the increasing prominence of judicial
confession, necessarily cast into stark relief the parallels between the penitential process and the punitive nature of criminal
law. While etymologically implicit in the correspondence between
poena
(punishment) and
poenitentia
(penance), it was an association that the church had sporadically attempted to efface. 44 Lateran IV itself does not allude
to the priest’s quasi-judicial role, instead preferring to describe him in terms of the more reassuring and traditional medicinal
imagery:

The priest shall be discerning and prudent, so that like a skilled doctor he may pour wine and oil over the wounds of the
injured one. Let him carefully inquire about the circumstances of both the sinner and the sin so that he may prudently discern
what sort of medical advice he ought to give and what remedy to apply, using various means to heal the sick person.
⁴⁵

As Nicole Bériou has indicated, there was a constant and often uneasy theological vacillation between medical and judicial
metaphors in thirteenth- century discussions of confession.
⁴⁶
But the two discourses were not as antagonistic as is frequently supposed. The judicial metaphors frequently staged a return
in the context of the physician’s diagnostic function, which bore undeniable similarities to a judicial interrogation. This
similarity, already implicit in Lateran IV’s dutifully inquisitive physician, becomes still more apparent in Peter of Poitiers’s
manual for confessors, produced soon after the council. In a prolonged meditation on the medical motif in Canon 21, the priest/doctor
is advised to approach the sick person with soothing words and comfort him with promises of healing, with God’s help. The
sick person is, in turn, encouraged to reveal the extent of his illness. The priest should follow up by asking when the illness
arose, the present age of the invalid, the sex, the cause of the illness, and its duration. The individual’s gender, customs,
and social status should all be probed. Finally, the vehemence of the attack, the patient’s physical deportment, and even
facial expressions should be carefully assessed.
⁴⁷

William of Auvergne, theologian and bishop of Paris between 1228 and 1249, had no scruples about drawing on both medicinal
and judicial images indiscriminately. Although often likening the priest to a midwife or confession itself to a therapeutic
bout of vomiting,
⁴⁸
his exploration of the judicial motif is especially painstaking. “It is necessary therefore that God have a court [
curia
] or place for hearing cases [
auditorium
] where those fit to be judged are judged and those fit to be compensated are compensated. The
auditorium
or
consistory
cannot exercise proper judgment unless they have the accusation [
accusatio
] and the testimony [
testificatio
].”
⁴⁹
The penitent, arraigned as a criminal, is expected spontaneously to accuse and testify against himself.
⁵⁰
The confessor is, in turn, cast as a bailiff, jealously guarding his Lord’s property and proceeding against thieves and traitors
of various stripes.
⁵¹
While certain contemporaries, such as Albert the Great and Thomas Aquinas,
⁵²
are extremely leery of pursuing such analogies,William cannot resist lining up as many parallels as possible, unguardedly
justifying spiritual mores by recourse to secular practice: “for if civil and secular cases are pursued and examined in the
presence of rectors or judges, cases thus involving souls or spiritual things should also be aired in the presence of rectors
of souls or judges.”
⁵³

Yet even William recognized the need to emphasize crucial differences. Of particular salience was the fact that judicial confession
was frequently extorted, while the Christian penitent’s confession was voluntary.
⁵⁴
Thus while torments of various kinds abound in William’s penitential system, these are assumed voluntarily. The penitent’s
willing mortification is at one with submission to God.

Among the repentant . . . not only does the person not resist justice but he even helps it: for when he judges himself, and
tortures himself [
torquet
], he who repents also exposes himself to the divine justice for torturing according to his own good pleasure.
⁵⁵

William’s torments are not torture in the new legal sense—that is, pain impressed in order to extract a confession—although
the word may be the same. The pains endured are instead punishments willingly embraced after the deed has been confessed to
appease and please an angry God.

A PILLAR OF BLOOD: RAYMOND OF PEÑAFORT

While the increasing emphasis on verbal confession in both spiritual and secular arenas invited the imaginative excurses of
William of Auvergne in Paris, a solidification of such comparisons was occurring farther south with the rise of fledgling
tribunals for prosecuting heretics. Since heresy was both a sin and a crime, the actual status of a heretic’s confession—made,
after all, to a priest who sought the heretic’s salvation—was necessarily ambiguous. (In recognition of this difficulty, prosecuting
clerics would be forbidden to hear the confessions of penitent heretics.)
⁵⁶
The Catalan canonist Raymond of PeÑafort would be responsible for making the two types of confession still more proximate
through his successful promotion of the inquisitional process for obtaining sacramental and heretical confessions alike.
⁵⁷

A brilliant canon lawyer who studied and then taught at the celebrated University of Bologna, Raymond joined the Dominicans
in 1222—a new and papally sponsored order that was formalized soon after Lateran IV precisely to combat heresy.
⁵⁸
He was summoned to Rome to act as papal penitentiary, chaplain, and confessor to Pope Gregory IX in 1230. Yet despite his
auspicious positioning in the papal curia, Raymond was entirely resistant to his own advancement in the ecclesiastical hierarchy.
When Gregory IX attempted to elevate Raymond to the archbishopric of Tarragona, he refused adamantly, even withstanding the
opprobrium of papal excommunication.
⁵⁹
Returning to Barcelona in 1234 because of illness, Raymond was nevertheless elected to the position of master general of
the Dominican order in 1238, a position he was forced to resign within two years, again for reasons of ill-health.
⁶⁰
Raymond lived out the remain-der of his life among his Dominican community at Barcelona, where he continued to retain the
title and many of the responsibilities of papal penitentiary. He died in 1275.

Raymond played a central role in the evolution of canon law in this period. Immediately after his arrival at Rome, he was
commissioned by Gregory IX to organize the papal decrees into a coherent canonical collection, completed in 1234 and known
as the
Decretals
.
⁶¹
His pastoral work was equally influential. The magisterial
Summa of Penance
was begun soon after his entrance into the Dominicans and exemplified the pastoral orientation of the order’s vocation. An
example of the newly emerging genre of confessors’ manuals, circulating in the wake of Lateran IV, Raymond’s
Summa
was designed to instruct priests in their newly acquired task of hearing confession. The revised and augmented version of
the
Summa
, completed in 1234, was one of the most influential works of its kind, serving as the template for subsequent confessors’
manuals.
⁶²

The various judicial feints and analogues in earlier writers are reified in the preface of Raymond’s work when he introduces
the concept of a “penitential forum” (
forum penitentiale
) instituted for the “judgment of souls.”
⁶³
Indeed, the very rubrics of his
Summa
are taken from contemporary canon law collections, apparently in an attempt to synchronize the individual penitent’s conscience
with ecclesiastical law. Moreover, the confessor, as spiritual judge, assumes heavy interrogational responsibilities, a method
that Raymond defends in the course of addressing the problem of “whether interrogations should be made.” First noting that
some individuals argue against interrogations, owing to the simplicity and shame of individuals, Raymond counters this view
with an excerpt from the pseudo-Augustinian treatise on penance:

“Let the spiritual judge beware . . . lest he fail in his responsibility for knowledge. It behoves him to know whatsoever
he is required to judge. For the judiciary power requires this so that he may discern what he is obliged to judge. The careful
inquisitor [
diligens . . . inquisitor
] therefore is a subtle investigator who wisely and as it were astutely interrogates the sinner about what perhaps he may
overlook or wish to hide from shame. Thus recognize the crime [
crimine
], and do not hesitate to investigate its various aspects, the spot, and time, et cetera.”
⁶⁴

Subduing hypothetical hesitation by recourse to the potent authority of Augustine (d. 430), Raymond then proceeds to outline
the proper procedure for interrogations in a terse couplet—rhymed for mnemonic purposes.

Who, what, where, through whom, how many times, why, how, when: These things should be observed when applying the medicine.
⁶⁵

In the course of Raymond’s merging of judicial and medicinal metaphors, the courtroom seems to prevail over the sickbed. The
remainder of this chapter proceeds to expand on each of these points of inquiry, utilizing judicial language throughout.