The right to remain silent: Before and after joan of arc

Speculum

Volumn 68, Issue 4, 1993, Pages 992-1026

  Kelly, H Ansgar ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84893324068     PISSN: 00387134     EISSN: 20408072     Source Type: Journal    
DOI: 10.2307/2865494     Document Type: Article

References (121)

1. This is the version that was adopted by the Phoenix Police Department; see Liva Baker, Miranda: Crime, Law and Politics (New York, 1983), pp. 177–78. Some recent variants of the second sentence are contrary-to-fact as they stand; for instance, the version currently used by the Los Angeles Police Department (dated March 1977) reads: “Anything you say can and will [my italics] be used against you in a court of law.”
2. A qualifying phrase like “if necessary” needs to be added. The U.S. Supreme Court opinion in the case of Miranda v. Arizona, 13 June 1966, did not give a formula to be followed by arresting officers but only a statement of what procedural safeguards were to be employed: “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed” (Baker, p. 142).
3. Pierre Tisset, ed., with Yvonne Lanhers, Procès de condamnation de Jeanne d' Arc, 3 vols. (Paris, 1960-71). The French text survives partially in the d' Urfé manuscript, from the second half of the fifteenth century; it begins midway through the testimony of 3 March 1431 (1:94).Some of the earlier material is covered by the Orléans manuscript, which is derived from the d' Urfé text but is the work of a faulty scribe (1:xxi-xxvi).
4. Pierre Duparc, ed., Procès en nullité de la condamnation de Jeanne d' Arc, 5 vols. (Paris, 1977-88), rejects the term rehabilitation and substitutes, as is clear from his title, “nullification of the condemnation,” to correspond to the juridical effect of the second trial (see the preface by Pierre Marot, 1:vii-viii). However, the sentence not only nullified the earlier processes but also expunged from Joan and her kin all marks of infamy that came from them (2:610).
5. The notarized Latin form, called Instrumentum sententie, was compiled around 1435, that is, four years or so after Joan's execution; it consists in large part of a translation and adaptation of the original French text of the examinations of Joan. It was made by Thomas Courcelles, working with the principal notary, William Manchon, for the chief judge, Peter Cauchon, and cast in the form of a long official letter or public instrument in Cauchon's name and that of the deputy heresy inquisitor for France, John Lemaistre. But the first-person plural normally refers only to Cauchon: “Nos vero, episcopus predictus,” etc. (Tisset, 1:2). Both Cauchon and Courcelles are highly suspect (Courcelles, who was rector of the University of Paris in 1430 and 1431, was one of only three assessors to urge that Joan be tortured; see Tisset, 2:394-95), but Manchon seems to have been conscientious and not inimical to Joan, and therefore some concerns about the record's accuracy can be allayed. We will see below, however, that we must be on our guard at all times.
6. Leonard W. Levy, Origins of the Fifth Amendment: The Right against Self-Incrimination (New York, 1968; repr. with new preface, New York, 1986), pp. 3–4.
7. citing John Foxe, Acts and Monuments, 4th ed., ed. Josiah Pratt (London, 1877), 5:184, 221. For Lambert's trial, see below, nn. 74, 166. On p. 19 Levy characterizes the English criminal system in the middle of the fifteenth century thus: “Of course, trial by the local community could be trial by local prejudice, but at least the prisoner knew the charges against him, confronted his accuser, and had freedom to give his own explanation as well as question and argue with the prosecution's witnesses. He suffered from many disadvantages—lack of counsel, lack of witnesses on his own behalf, lack of time to prepare his defense—yet the trial was supremely fair, judged by any standard known in the western world of that day.” But a few pages later he admits that the inquisitorial system, as still practiced in the ordinary episcopal courts, included a right to be informed of the charges, to know the names of the prosecution's witnesses and to have copies of their depositions, to have counsel, and to dispute and challenge charges and witnesses (p. 25).
8. The axiom “Cogitationis penam nemo patiatur” was added to Gratian's Decretum, De penitencia 1.14, from Justinian, Digest 48.19.18: Emil Friedberg, ed., Corpus iuris canonici (Leipzig, 1879-81), 1:1161.
9. The Latin version of the other adage, “Nemo tenetur prodere se[ipsum],” which is given by Foxe, is to be found in the Ordinary Gloss to the Decretales Gregorii IX 2.20.37, s.v. de causis (Roman ed., 2:736), as is pointed out by R. H. Helmholz in the article cited in the next note, p. 967.
10. The glossator, Bernard of Parma, takes it to be the equivalent of Chrysostom's statement “non tibi dico ut te prodas in publicum,” in Gratian, De penitencia l, dictum post c. 87, §1 (Friedberg, 1:1184). Levy knows of Gratian's citation but assumes that the sentiment found no echo in later canonistic works (pp. 21, 70, 453 n. 40).
11. R. H. Helmholz, “Origins of the Privilege against Self-Incrimination: The Role of the European lus commune,” New York University Law Review 65 (1990), 962–90.
12. Stephan Kuttner, “Ecclesia de occultis non iudicat,” Acta Congressus iuridici intermationalis … Romae … 1931, 5 vols. (Rome, 1935-37), 3:225-46.
13. Qualiter et quando, Decretales Gregorii IX 5.1.24: Innocent III, canon 8 of the Fourth Lateran Council (Friedberg, 2:745-47).
14. for the relevant text, see H. A. Kelly, “Inquisitorial Due Process and the Status of Secret Crimes,” Proceedings of the Eighth International Congress of Medieval Canon Law, ed. Stanley Chodorow, Monumenta Iuris Canonici, Series C: Subsidia, 9 (Vatican City, 1992), pp. 407–27, esp. p. 410 n. 7.
15. Decretales Gregorii IX 2.21.8 (Innocent III, Super his, 1203): “Ceterum volumus et … mandamus ut super inquisitionis articulis, tam de fama electi quam literis contra eum sub nomine longe majoris et sanioris partis capituli destinatis, cogatis testes, qui nominati fuerint, perhibere testimonium veritati.” The crime in this case was taken by commentators to be a case of counterfeiting letters (Friedberg, 2:343).
16. However, in Innocent's decretal Cum dilecti, 1205, he rehearses with approval a case where frequens clamor against a bishop was investigated by papal legates who bound both the bishop and his canons by oath to tell the truth (or to answer questions) about the state of the local church (Decretales 5.1.18, Friedberg, 2:739-40).
17. The history of this development is given by Adhémar Esmein, “Le serment des inculpés en droit canonique,” Bibliothéque de l' Ecole des hautes études, Sciences réligieuses 7 (1896), 231–48.
18. Hostiensis, Summa aurea (Venice, 1574; repr. Turin, 1963), De inquisitionibus, § Et qualiter, no. 6 (p. 1478).
19. cited by Esmein, “Serment,” p. 245.
20. Hostiensis, Commentaria in Decretales Gregorii IX (Venice, 1581; repr. Turin, 1965), on 5.1.17 (5:5A-6, nos. 4–6) and 5.1.24 (5:11 A, no. 15).
21. John Andrew, Ordinary Gloss to Sext. 5.1.2, ad v. fuerat (col. 610): “ad petitionem alicujus; quia si Papa proprio motu committit inquisitionem criminum alicujus, jam illum approbat infa-matum, cum episcopus et metropolitanus procedant etiam ad inquisitionem, omisso tali art[iculo]”; see also his Novella on Decretales 5.1.24 (1581; repr. Turin, 1963), 5:15A, no. 15: “Sed quandoque fit inquisitio debito officii urgente, etsi nulla fama precedat, ut cum agitur de matrimonio contra-hendo corporali … vel spirituali; … idem ubicunque ex mero et puro officio procedit judex, in his maxime in quibus vertitur periculum animarum.”
22. John Andrew, Ordinary Gloss to Sext. 5.1.2, ad v. reclamante (cols. 610-11), referring to Regula juris 43, Sext. 5.12 (Friedberg, 2:1123): “Qui tacet, consentire videtur.”
23. See Christoph Krampe, “‘Qui tacet, consentire videtur’: Über die Herkunft einer Rechtsregel,” in Staat, Kirche, Wissenschaft in einer pluralistischen Gesellschaft: Festschrift zum 65. Geburtstag von Paul Mikat, ed. Dieter Schwab et al. (Berlin, 1989), pp. 367–80.
24. See William Lyndwood, Provinciale (1432; Oxford, 1679, repr. Farnborough, 1968), 2.1.3, ad v. aut permissionem (p. 86 note b), dealing with alienation of property: “Absens namque et ignorans non videtur consentire; … imo nec quandoque sciens, maxime si sit absens. … Imo etsi presens esset, sciens et intelligens rem suam vel sue custodie commissam auferri, per solam taciturnitatem non videretur consentire.” He cites Roman civil laws to make his points.
25. So Levy, Origins of the Fifth Amendment, new preface (1986), p. xiii.
26. Philip Probus, ed., Glossa aurea Johannis Monachi Cardinalis super Sexto decretalium (Paris, 1535; repr. Aalen, 1968), fols. 342v-343r (= pp. 804–5), on Monachus's statement “cum quisque renun-ciare valeat his que pro se introducta sunt” for the text of Probus's arguments.
27. see Kelly, “Inquisitorial Due Process,” pp. 412–13.
28. Regula juris 44: “Is qui tacet non fatetur, sed nec utique negare videtur.”
29. Kelly, “Inquisitorial Due Process,” p. 423.
30. citing Haim Beinart, Records of the Trials of the Spanish Inquisition in Ciudad Real, 1: The Trials of 1483–1485 (Jerusalem, 1974), pp. 163-80: case of Juan de Chinchilla. In his introduction Beinart speaks of confessions of defendants made in pretrial examinations (p. xxiv), but he gives no details, and none of the cases documented in this volume demonstrates any such procedure; perhaps he is speaking of cases in which the defendants are willing to confess. The Chinchilla case shows what happened when the defendant did not wish to confess but rather to maintain innocence.
31. Instructions of Avila, 25 May 1948, ed. Ernst Schäfer, “Die älteste Instruktionen-Sammlung der spanischen Inquisitionen,” Archiv fur Reformationsgeschichte 2 (1904–5), 109–14, 123–24, no. 3 (p. 110).
32. text in Kelly, “Inquisitorial Due Process,” p. 421.
33. Instructions of Seville, 29 November 1484, ed. Schäfer, pp. 1-55, 109-77, no. 5 (p. 17).
34. text in Kelly, “Inquisitorial Due Process,” pp. 419–20.
35. H. A. Kelly, “Inquisition and the Prosecution of Heresy: Misconceptions and Abuses,” Church History 58 (1989), 439–51, esp. pp. 447–49.
36. For a recent account of the provisions of Dispendiosam and Sepe, see Pennington, Prince and the Law, p. 189.
37. Bernard Guy, Tractatus de practica officii inquisicionis heretice pravitatis, ed. C. Douais, Practica inquisitionis heretice pravitatis auctore Bernardo Guidonis (Paris, 1886), pt. 1, chap. 34 (p. 28): he gives a sample form letter dated August 1319 conforming to the constitution Multorum (Clem. 5.3.1), which requires papally delegated heresy inquisitors to work in conjunction with local bishops. Later on, in pt. 4, he complains of the inconveniences caused to the papal inquisitors by the constitution (pp. 174, 187–88).
38. I take the title of Guy's treatise from his preface (p. 1). Pt. 5 of the treatise is edited and translated into French by Guillaume Mollat, Manuel de l'inquisiteur, 2 vols. (Paris, 1926-1927).
39. Guy, Tractatus, pt. 4 (p. 212).
40. Kelly, “Inquisition and Heresy,” pp. 443–46.
41. Guy, Tractatus, pt. 4 (p. 229).
42. See Mollat, 1:xliv-li, esp. p. xlvii, on the preliminary interrogation (he does not give any account of the actual procedure to be followed after the questioning; see p. xlix).
43. Nicholas Eymerich, Directorium inquisitorum, ed. Francis Peña (Rome, 1578), pt. 3, §70 (p. 285) and §74 (p. 286).
44. Kelly, “Inquisitorial Due Process,” p. 411 n. 13, citing John Andrew, the Archdeacon, John Monachus, and Dominic of San Gemignano.
45. Thomas Aquinas, Summa theologie 2-2.67.3 ad 2.
46. See Jean-Philippe Levy, “Le problème de la preuve dans les droits savants du moyen âge,” Recueils de la Société Jean Bodin 17 (1965), 137–67, esp. pp. 156–59.
47. Torture could be applied at this stage; for a recent study of the use of torture in heresy cases, see Johannes Fried, “Wille, Freiwilligkeit und Gestandnis um 1300: Zur Beurteilung des letzten Templergrossmeisters Jacques de Molay,” Historisches Jahrbuch 105 (1985), 388–425. We should recognize that torture was considered allowable in a wide variety of cases; see the extensive statement by John Teutonicus (ca. 1215) in the Ordinary Gloss to Gratian, Decretum 2.16.5, dictum ante c. 1, Quod vero (col. 1080).
48. See the case of Raymond de Costa, Le registre d'inquisition de Jacques Fournier, évêque de Pamiers (1318-1325), ed. Jean Duvernoy, 3 vols. (Toulouse, 1965; Corrections, 1972), 1:40-41, 48, 54, 106-7: he refused to swear on the grounds that oaths were prohibited. Another defendant refused because once when he was sick he had sworn not to take any oaths (1:511).
49. John Henry Wigmore, “The Privilege against Self-Incriraination: Its History,” Harvard Law Review 15 (1901-2), 610-37, esp. p. 617; this article is repeated largely unchanged in Wigmore's Evidence in Trials at Common Law, 8, last revised by him in 1940; in the revision by John T. McNaughton (Boston, 1961), see pp. 267-95, esp. p. 276. Later criticisms of Wigmore, noted by McNaughton on pp. 267-69, are largely unjustified.
50. Levy, Origins, p. 20; cf. p. 23.
51. Councils and Synods with Other Documents Relating to the English Church, ed. F. M. Powicke and C. R. Cheney, 1/2 (Oxford, 1984), p. 256. Cf. the somewhat different but still intelligible text in the first appendix to the Oxford 1679 edition of William Lyndwood's Provinciale, where the legatine constitutions of Otto and Ottobono are given with the gloss of John Acton (ca. 1345); see esp. p. 60.
52. Close Rolls of the Reign of Henry III, 7 (London, 1927), pp. 224–25 (1252): “Et insuper, quod inauditum est, eos jurare compellunt predicti scrutatores vestri de privatis peccatis aliorum que non sunt, ut dicitur, publica cohercione purganda.”
53. For Grosseteste's visitations, beginning around 1238, and royal opposition to the procedure of the sworn inquest of laymen, see Councils and Synods, pp. 261–65.
54. Sworn testimony in trials did not become a part of the common-law system until the time of Elizabeth I. See Charles M. Gray, “Prohibitions and the Privilege against Self-Incrimination,” in Tudor Rule and Revolution: Essays for G. R. Elton from His American Friends, ed. DeLloyd J. Guth and John W. McKenna (Cambridge, Mass., 1982), pp. 345–67, esp. p. 346.
55. For the original text, see the second appendix to Lyndwood, p. 21, and Councils and Synods, pp. 678–79, no. 14; as given by Lyndwood, pp. 109–10, the text is a summary paraphrase. His first sentence reads, “Statuimus quod laici, ubi de subditorum peccatis et excessibus corrigendis per prelatos et judices ecclesiasticos inquiritur, ad prestandum de veritate dicenda juramentum per excommunicationis sententias, si opus fuerit, compellantur.”
56. Lyndwood, Provinciale, p. 109, note r, ad v. compelluntur, citing John Andrew and Guy of Baysio on Sext. 3.20.1, §4: Innocent IV's 1245 decretal Romana ecclesia (in the Roman edition of John Andrew's Ordinary Gloss to this decretal, col. 570, ad v. coactione, a negative is missing; it should read: “A principio [non] exigetur juramentum per quod occultum prodere constringatur”).
57. Statutes of the Realm, 1 (London, 1810), p. 209.
58. See Councils and Synods, p. 470, nos. 7–8, for the bishops' complaints in 1253 against similar efforts to limit their jurisdiction.
59. See Levy, Origins, pp. 50–51.
60. There is also a chance that the council was inspired by those inquisitors' use of torture; on this subject, see H. A. Kelly, “English Kings and the Fear of Sorcery,” Mediaeval Studies 39 (1977), 206–38, esp. pp. 210 (n. 10), 212–13, 231, 233–37.
61. See Levy, pp. 52–53, citing 25 Edward III (1352), st. 5, chap. 4; 28 Edward III (1354), chap. 3; 37 Edward III (1363), chap. 18; and 42 Edward III (1368), chap. 3.
62. Statutes of the Realm, 1:321, 345, 382, 388.
63. On p. 52 Levy repeats the statement of Mary Hume Maguire, “Attack of the Common Lawyers on the Oath Ex officio as Administered in the Ecclesiastical Courts in England,” in Essays in History and Political Theory in Honor of Charles Howard Mcllwain (Cambridge, Mass., 1936), pp. 199–229, esp. pp. 207-8: “We read a series of petitions from the Commons to the Crown referring to the distasteful practice of ecclesiastical courts of proving the case against the defendant by ‘fishing interrogatories viva voce,’” but in a note (p. 450 n. 13) he points out that her references are to complaints made in 1347 and 1352 only against council practices and without any such language about interrogatories.
64. Foxe, Acts and Monuments, 3:24-36.
65. We are told that at first Hus refused to respond, but complied when told that his refusal might be regarded as a confession of guilt; see Matthew Spinka, John Hus: A Biography (Princeton, 1968), p. 236.
66. Spinka does not cite his source for the specifics of the first day of interrogation, 6 December 1414, when Hus began his imprisonment in a Dominican friary. See also Spinka's John Hus at the Council of Constance (New York, 1965), p. 117 n. 21.
67. David S. Schaff, John Huss: His Life, Teachings, and Death, after 500 Years (New York, 1915), says that according to John of Jesenice (the lawyer who had defended Hus in Rome), “Huss had committed a technical error in making any reply whatsoever as a prisoner” (p. 184, citing no source).
68. H. A. Kelly, The Matrimonial Trials of Henry VIII (Stanford, 1976), pp. 89–95.
69. For the directions to the proceedings, see Letters and Papers, Foreign and Domestic, of the Reign of Henry VIII, 21 vols. (corrected reprint, Vaduz, 1965), vol. 4, nos. 5613 and 5695.
70. Kelly, Matrimonial Trials, pp. 205–7.
71. Tisset, 2:388.
72. See Alfred Colville, Jean Petit: La question du tyrannicide au commencement du XVe siècle (Paris, 1932; repr. Geneva, 1974), p. 512.
73. In John Dominic Mansi, Sacrorum conciliorum nova et amplissima collectio, vols. 27–28 (Venice, 1784-85), his name is usually mistranscribed as “Canthon” (e.g., 27:819, 4 Feb. 1416).
74. See Phillip Stump, “The Official Acta of the Council of Constance in the Edition of Mansi,” in The Two Laws: Studies in Medieval Legal History Dedicated to Stephan Kuttner, ed. Laurent Mayali and Stephanie A. J. Tibbetts (Washington, D.C., 1990), pp. 221–39, who says that Mansi in spite of his misprints reproduces a text in some ways better than that in vol. 4 of Hermann von der Hardt, Magnum oecumenicum Constantiense concilium, 6 vols. (Frankfurt, 1697—1700, 1742).
75. Stump does not point out that Mansi (or his sources) eliminates most of the rubrics of Hardt's edition and does not include other supplementary material. For a partially fictionalized account of the council, see Palémon Glorieux, Le concil de Constance au jour le jour (Tournai, 1964), told through the eyes of John Gerson's secretary.
76. See also Glorieux's edition of Gerson's Oeuvres complètes, 10 vols. (Paris, 1960-73), esp. vol. 10, L'oeuvre polémique, pp. 511–30 (“Autour du tyrannicide”), with a chronological “Dossier” on pp. 164-70; and see the “Table chronologique” on pp. 583-98; pertinent documents are given on pp. 516–52.
77. Heinrich Finke, Acta concilii Constanciensis, 4 vols. (Münster, 1896-1928), 4:239-40.
78. Hardt, 4:335. The rubric reads: “Petiti judices commissarii pro inquisitione aliarum causarum fidei, presertim doctoris theologi Johannis Parvi, Galli, nuper defuncti, Burgundie ducis consiliarii” (not in Mansi, 27:729). One of the judges was Cardinal Peter d' Ailly, who was immediately recused by Burgundy's main lawyer, Martin Porée, bishop of Arras (Hardt, p. 336; not in Mansi). See Glorieux, Concile, pp. 87, 90-91; he reports Cauchon as also recusing d' Ailly on 17 June.
79. Finke, 4:264-66. Cauchon presented more arguments on 7 or 8 July (pp. 268–69) and on 9 July (pp. 269–71).
80. Mansi, 28:835-36.
81. Hardt, 4:1271, 1275-76, 1306.
82. Mansi, 27:1100, 1102, 1115.
83. Hardt, 4:1373-77; Mansi, 27:1141-42; see Tisset, 1:278, 96, where the same form is used. It seems that in both cases the form of the Constantinopolitan-Nicene Creed used at mass has been unconsciously substituted for that of the Apostles' Creed (in which there is no unam).
84. According to the anonymous De vita Magistri Jeronimi de Praga (ed. Václav Novotny, Fontes rerum Bohemicarum [Prague, 1932], 8:335-38), Jerome was convicted of all the articles by witnesses: “Centum septem articuli … de novo fuerunt producti et subsequenter per sufficientes testes probati” (p. 335). “In quibus omnibus articulis … fuit omnino per testes convictus” (p. 336).
85. The Register of Henry Chichele, Archbishop of Canterbury, 1414-1443, ed. E. F. Jacob, 4 vols. (Oxford, 1937–47), 3:126 ff.
86. see Kelly, “English Kings,” pp. 213 (n. 18), 225 (n. 75).
87. N. P. Tanner, ed., Heresy Trials in the Diocese of Norwich, 1428–1431 (London, 1977), analyzed by Kelly, “Inquisitorial Due Process,” pp. 425–26.
88. The documents edited by Anne Hudson in “The Examination of the Lollards,” in Lollards and Their Books (London, 1985), pp. 125–40, may show a degeneration in proper procedure. What seems to be the earliest modus procedendi, which was added to the register of Bishop Clifford of London (1407–21), has no interrogatories (pp. 127, 129, 132, 139); the next, from the register of Bishop Polton of Worcester (1426–33), has interrogatories placed at the point at which the defendant has been charged and has denied the charges, and after witnesses have been received (pp. 132-37); the latest, in MSS Harley 2179 and Balliol College 158, gives the interrogatories at the beginning (pp. 132–35, 140). The interrogatories seem to have been formulated at the Canterbury Convocation of 1428 (see pp. 128–29).
89. Tisset, 1:385.
90. See Kelly, “English Kings,” pp. 219-29.
91. cf. Ralph A. Griffiths, “The Trial of Eleanor Cobham: An Episode in the Fall of Duke Humphrey of Gloucester,” Bulletin of the John Rylands Library 51 (1969), 381–99.
92. Tisset, 1:1-2.
93. Tisset, 1:34: “citandam et audiendam super articulis et interrogatoriis contra earn dandis et sibi faciendis fidei materiam concernentibus.”
94. Cauchon's assertion is noted by Esmein, “Serment,” p. 246 n. 1, but he does not advert to the crucial difference between swearing to answer charges truthfully and swearing to answer global interrogatories, nor does he point out that Cauchon was claiming a special exemption for heresy cases.
95. According to J. Duncan M. Derrett, “The Trial of Sir Thomas More,” English Historical Review 79 (1964), 449–77, repr. in Essential Articles for the Study of Thomas More, ed. R. S. Sylvester and G. P. Marc'hadour (Hamden, Conn., 1977), pp. 55–78, 591–96, esp. p. 65, Thomas More at his interrogation in the Tower on 3 June 1527 agreed with the lord chancellor, Thomas Audeley, that bishops could compel alleged heretics to say whether they believed the pope to be the supreme head of the church.
96. He is referring to More's report of the confrontation: The Correspondence of Sir Thomas More, ed. Elizabeth Frances Rogers (Princeton, 1947), no. 216, pp. 555–59, esp. pp. 557–58. It would be more accurate to say, not that More agreed, but that he did not disagree and proceeded to make another point. In his detailed defense of the ex officio inquisitio, specifically as employed against suspected heretics, in The Apology, ed. J. B. Trapp, Complete Works of St. Thomas More (New Haven, 1979), esp. chap. 40, pp. 129–35, More made no such claim for the judges but described the procedures in strict accord with canon law.
97. Tisset, 1:45-46.
98. Herbert Thurston, Some Inexactitudes of Mr. G. G. Coulton (London, 1927), p. 7. Thurston is responding to Coulton's assumption that Joan went to communion only once a year.
99. Tisset, 1:55.
100. Tisset, 1:56-57.
101. Paul Doncoeur and Yvonne Lanhers, La rehabilitation de Jeanne la Pucelle, 1: La enquête ordonnée par Charles VI en 1450 (Paris, 1956), pp. 48–49.
102. DuParc, 1:356.
103. Tisset, 3:69-70, 213, mistakenly says that Manchon also mentioned this point.
104. Doncoeur and Lanhers, p. 49: “Vela Lohier qui nous veult bailler belles interlocutoyres in nostre procés! II veut tout calompnier, et dit qu'il ne vault riens. Qui le vouldroit croire, il nous fauldroit tout commencer, et tout ce que nous avons fait ne vouldroit riens.”
105. Tisset, 1:179-80.
106. The twelve articles are given on pp. 290-96 and the deliberations of the Parisian masters on pp. 297–327. One of the masters was Nicholas Midi (p. 297), who, according to Thomas Courcelles's surmise, was the actual author of the articles (Duparc, 1:357).
107. Tisset, 1:184.
108. Tisset mistakenly says that the process changed from ex officio to cum promovente (3:59-60). A promovens was an interested outside party to an inquisition, whereas Estivet was a promotor officii judicis, a promoter of the judge's office or assistant to the judge (see the letter of appointment, 1:18-19: “repperimus necessarium et conveniens esse habere promotorem generalem officii nostri in causa seu materia hujusmodi,” etc.). See Kelly, “Inquisition and Heresy,” p. 446 n. 34.
109. idem, Matrimonial Trials of Henry VIII, pp. 23, 81, 89-90.
110. Adhémar Esmein, A History of Continental Criminal Procedure with Special Reference to France, trans. John Simpson (Boston, 1913), pp. 86-88 (the original version of Esmein's work, Histoire de la procédure criminelle en France et spécialement de la procédure inquisitoire depuis le XIIIe siècle jusqu'à, nos jours [Paris, 1882], does not contain this discussion; one should note, however, that the Latin texts in the English version are riddled with errors). Tisset is right to state that only when articles are formally denied are witnesses to be produced to prove them; that is, in ordinary circumstances, depositions taken earlier cannot be used (3:61-62)-except for a defendant's self-incriminating testimony, which Boniface VIII allowed unless the defendant protested (which, of course, Joan did). But Tisset is mistaken in saying that in special cases it was not necessary to proceed as Lohier insisted, with a libellus of articles (3:62-63 n. 3); he cites Innocent IV (p. 60 n. 2), but whatever Innocent had had to say on the subject of summary process was superseded by Clement V's Sepe (see above, p. 1001).
111. Tisset, 1:186 (Latin text). See Lyndwood's comment on Archbishop Boniface's constitution (above, n. 68), p. 109 note p, expanding on John Andrew's Ordinary Gloss to Sext. 2.1.1, ad v. dicenda (col. 309), for the distinction between the two oaths.
112. Tisset, 1:187-88.
113. Duparc, 2:293-94.
114. Sacra Rituum Congregatione, Eminentissimo ac Reverendissimo Domino Card. Lucido Maria Parocchi relatore: Aurelianen.: Beatificationis et canonizationis servae Dei Ioannae de Arc, Puellae Aurelianensis nuncupatae: Positio super introduclione causae (Rome, 1893), part 5 (= fifth pagination): Animadversiones R. P. D. Promotoris Fidei super dubio, An sit signanda Commissio introductionis Causae, in casu et ad effectum de quo agitur? §61-63, pp. 44-46. A complete set of the canonization proceedings of Joan of Arc is to be found in the Cardinal Wright collection of the Boston Public Library.
115. The first of these, Caprara, noted above, compared her to Christopher Columbus, whose cause for sainthood had recently been stalled. His conclusion was that she was a very fine woman up to the time that she was captured and subjected to judicial questioning; but then her greatness of mind failed, the splendor of divine revelations disappeared, and grave faults obscured her previous virtues: “Duo ergo stadia in puellae nostrae vita secernenda videntur; primum gloriosum, et admiratione plenum, usque ad suam captivitatem. … At, ubi capta ilia fuit, et iudicialibus quaestionibus subiecta, defecit ea animi magnitudo, splendor ille divinarum revelationum disparuit, ac praegressas virtutes, quaecumque demum eae fuerint, graves culpae obscurasse visae sunt” (§70, pp. 52–53). In 1901 the promoter of the faith was Giovanni Battista Lugari: Sacra Rituum, etc., Positio super virtutibus (Rome, 1901), vol. 2, part 2: Animadversiones R. P. D. Promotoris Fidei; and in 1903 it was Alessandro Verde: Nova positio super virtutibus (Rome, 1903), part 1: Novae animadversiones R. P. D. Promotoris Fidei; and Novissima positio super virtutibus (Rome, 1903), part 2: Novissimae animadversiones R. P D. Promotoris Fidei. The rest of the beatification and canonization proceedings concerned not her virtues but the modern miracles attributed to her intercession.
116. Herbert Thurston, “Bernard Shaw on Saint Joan,” Studies: An Irish Quarterly Review 13 (1924), 395–407, at p. 402.
117. Richard Marius, Thomas More (New York, 1984), p. 462: “More made the legal point that was finally to be written into the Fifth Amendment of the United States Constitution: ‘If I may not declare the causes without peril, then to leave them undeclared is no obstinancy’” (citing More's letter of ca. 17 April 1534 to his daughter Margaret Roper, Correspondence of Sir Thomas More, no. 200, pp. 501–7, esp. p. 505).
118. Derrett, “Trial of Sir Thomas More” (n. 117 above), pp. 62–63. Derrett is mistaken in indicating (p. 593 n. 40) that Aquinas, Sum. theol. 1-2.71.5, supports the idea that silence is no crime; Thomas at this point is dealing with sins of omission, cases in which remaining silent would indeed be a crime; but see the passage quoted from Aquinas in n. 46 above. More invoked the rule that silence implies consent (see n. 22 above) to make the point that his refusal to take the statutory oath of supremacy could not be taken to signify his disapproval of the king's legislation. He could also have appealed to the rule that silence in response to questioning signifies neither affirmation nor denial (n. 26 above).
119. Thomas More, The Debellation of Salem and Byzance, chap. 15, ed. John Guy et al. (New Haven, 1987), p. 86.
120. More, Debellation, pp. 105-6. He is defending the practice in ex officio inquisitions of not revealing who the original delators were: “But why shall he not know them forthwith, when he is first convented? For it were not well done he should, no more than the King's Council, that many times call malefactors before them upon secret information first, use alway there by-and-by to disclose who told them the matter and what; which if they should, and by-and-by bring him forth, then though the suspect would confess haply some things thereby the sooner, yet should it be but that thing which he thought the tother knew; whereas while the thief knoweth not who hath given the information and yet thinketh by his examination that among his many fellows, though they be thieves all, yet some false shrews there be, he misguesseth among and weneth it were one where in deed it was another, and so in stead of one felony, to light there cometh twain.” Perhaps we are to take it from this that similar preliminary interrogations of suspected heretics were in fact conducted by the bishops. Foxe notes that Lambert was first examined at Lambeth before being tried before the archbishop at Otford (p. 181); but it is likely that if any prearraignment interrogation had been attempted, Lambert would have alluded to it in his published responses. After the examinations of Anne Askew noted above, Edmund Bonner, bishop of London, examined her privately and asked her opinion about the matters laid against her and also urged her to utter the secrets of her heart, promising her immunity; but she declined, preferring to await the arrival of her friends (Bale, p. 163). She was eventually consigned to death by the King's Council, which she considered not a proper trial: “And so we were condemned, without a quest” (p. 213). Criminal procedure in matters of heresy was up in the air after 1534.
121. see Levy, Origins, pp. 69–73.