The Supreme Congregation in Rome watched over the provincial tribunals, enforced the observance of what was for the times an essentially moderate code of law, and maintained uniformity of practice. While moral justice was impossible, given the presupposition of the Church that it had the right, even the duty, to prosecute those who differed in their religious beliefs, legal justice in terms of the jurisprudence of early modern Europe was indeed dispensed by the Roman Inquisition.

In trials conducted under its jurisdiction loose allegations were not permitted and accusers made their depositions under oath. To forestall charges stemming from personal animosities, since the names of prosecution witnesses were concealed, defendants were asked in advance to provide the names of individuals whom they considered their enemies. The records of the trial proceedings were provided to prisoners and to their lawyers in writing (with the names of the deponents deleted) and an appropriate interval, varying from several days to a few weeks, allowed for the preparation of counter arguments and the summoning of friendly witnesses. Judicial torture, which was carefully circumscribed, might be applied only after the defense had made its case and where the indicia, the evidence, was compelling. No properly conducted inquisitorial trial commenced with the rigoroso examine. The local bishop or his vicar, duly constituted members of a provincial inquisitorial court, had to concur in the decision and be present during the questioning.

Particularly in witchcraft proceedings, these and many other safeguards were in effect. Physicians were consulted to establish the corpus delicti, specifically to determine whether an illness or death might have had a natural cause before jumping to the assumption that a maleficium had been perpetrated. The search for the Devil’s mark was unknown in the inquisitorial process, and the failure on the part of the accused to evince emotion or shed tears during the interrogation was considered of scant significance. Alleged participants at Sabbats were not allowed to implicate their accomplices, and the testimony of witnesses who suffered from poor reputations could not lead to the torture of the defendant. In serious cases, sentences pronounced by provincial tribunals were scrutinized by the Congregation of the Inquisition in Rome and implausible confessions which contradicted the defendant’s testimony during the trial were deemed invalid. No witch was ever sent to the stake as a first offender if she showed the signs of repentance. Even in the extreme case of witches convicted of having caused a fatal injury, it was only Gregory XV, in 1623, in opposition to the prevailing tradition, who attempted to have the death sentence invoked. Relatively few encounters with the Inquisition ended at the stake. This was a fate reserved for the relapsed, the impenitent, and those convicted of attempting to overturn a few central doctrines of the Church. But even in these cases lesser forms of punishment often prevailed.

I suggest further that many aspects of modern criminal law were already in place in rudimentary form or were being introduced in the tribunals of the Roman Inquisition in the sixteenth century. The arraigned had the benefit of a defense attorney, including “public defenders” appointed by the court for the indigent, at a time when this figure did not exist in English law and was being relegated to a secondary role in civil French and imperial codes; confessions obtained extrajudicially were invalid; appeals could be and regularly were made to a higher court, namely the Supreme Congregation in Rome itself; first offenders were dealt with infinitely more leniently than recidivists. Imprisonment as a punishment, rather than merely for the purpose of custody during the trial, was introduced by the Inquisition, a consequence of the canonical prohibition against shedding blood, long before it was adopted by civil authorities at the close of the sixteenth century. Before that time, when pronouncing final judgment, secular courts could only choose from among several extreme alternatives. A sentence to life imprisonment (carcere perpetuo) by the Holy Office meant, as it does today, parole after a few years, generally three, subject to good behavior; but commutations after even briefer periods are frequently encountered. And house arrest, joined to work release programs and community service, was a common form of penal practice pursued by the Inquisition in its day. Although abuses occurred at the level of the provincial courts, where the local officials were often overworked, undertrained, and even, occasionally, poorly motivated and unsuited for the task at hand, Rome intervened time and again to enforce acceptable procedure and punish negligent and ignorant judges. The flagrant abuses which beset even the supreme tribunal when Cardinal Carafa, the future Paul IV, was its dominant member, and during his reign as pope, 1555-1559, present a notable aberration in the history of the institution.

John Tedeschi, The Prosecution of Heresy (1991)

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