In Italy (as in Spain), the rubric of “magic” rarely involved witchcraft and apostasy to the Devil; and even when it did, the Italian Inquisitors, unlike secular judges, rarely punished the crime with death. […]

What can be said about the relative severity or leniency of inquisitorial justice? What was the outcome in the thousands of trials recorded in the appendices to this essay? Despite popular notions to the contrary, only a very small percentage of cases ended with capital punishment…In his studies of the Friuli witchcraft trials, Carlo Ginzburg encountered neither the use of torture in the proceedings nor a single execution; in fact, only rarely was a case brought to a conclusion.

E. William Monter and John Tedeschi, “Toward a Statistical Profile of the Italian Inquisitions, Sixteenth to Eighteenth Centuries”. The Inquisition in Early Modern Europe: Studies on Sources and Methods (1986)

The Roman Inquisition was reconstituted in 1542 to combat the menace of Protestantism in the Italian peninsula, whereas the Spanish Inquisition had been created more than half a century earlier to deal with massive numbers of converted Jews. […]

Wherever one turns, therefore, it appears that Italian Inquisitors were becoming preoccupied with superstitious magic and witchcraft well before 1600 – unlike their Spanish counterparts, who held barely 2 percent of their pre-1615 trials for such offenses. In the seventeenth century this Italian concern with magicians and witches persisted, while the attention that needed to be devoted to heretics continued to diminish. Illicit magic alone constituted over 40 percent of all cases both at Venice and in the Friuli and for close to 40 percent in Naples. Even in Sicily, where it accounted for only 25 percent Holy Office activity after 1615, illicit magic was the largest single category and the 310 trials for this offense were the largest total from any of the twenty Spanish tribunals during this period. After 1600, prosecution of magicians dominated the business of the Italian inquisitions, far more dramatically than it ever did in any part of the Spanish system: in the nine Castilian tribunals, for example, “superstition” accounted for only 12 percent of the 6,240 trials held between 1615-1700. As late as the decade 1701-1710, illicit magic accounted for 69 percent of all Venetian inquisitorial cases and 61 percent of those at Naples.

E. William Monter and John Tedeschi, “Toward a Statistical Profile of the Italian Inquisitions, Sixteenth to Eighteenth Centuries”. The Inquisition in Early Modern Europe: Studies on Sources and Methods (1986)

The Sicilian Inquisition was of course not a Roman tribunal at all, but the Venetian Holy Office also differed from other branches of the Roman system. The most important peculiarity (not unique to Venice, however,) was the requirement that lay representatives of the Serenissima, known as the Savii sopra Eresia, should sit alongside the clerical members of this tribunal. Venice imposed other special rules as well, such as the requirement that all Inquisitors must be Venetian citizens; the inadmissibility of denunciations and testimony forwarded by courts outside the dominion; and the prohibition against the confiscation of a convicted heretic’s property.Perhaps the most serious Venetian infringement on ordinary inquisitorial procedure was the extent of competition from local secular courts, which claimed jurisdiction in many cases involving such offenses as bigamy, blasphemy, perjury to the Inquisition, and some forms of suspected witchcraft.

E. William Monter and John Tedeschi, “Toward a Statistical Profile of the Italian Inquisitions, Sixteenth to Eighteenth Centuries”. The Inquisition in Early Modern Europe: Studies on Sources and Methods (1986)

Those modern scholars are in error, for example, who assume that the notorious Malleus Maleficarum, the work of two German Dominicans first published in 1486, remained “the standard manual for the persecutors of the next two centuries, not only in Catholic but in Protestant countries as well”. On the contrary, a philosophy entirely opposed to that of the Malleus was gaining ascendancy in the tribunals of the Holy Office throughout the second half of the sixteenth century and was made normative thanks to the Instructio pro formandid processibus in causis strigum, sortilegiorum & maleficiorum which began to circulate in manuscript at least as early as 1624 and was incorporated into the Sacro Arsenale (beginning with the edition of 1625), the most widely followed Italian inquisitorial handbook of the age. At the close of the sixteenth century, even Martinus Del Rio, an unquestioning enemy of witchcraft, had separated himself from many of the teachings pronounced by the Malleus Maleficarum a hundred years before.

John Tedeschi, The Prosecution of Heresy (1991)

It may not be an exaggeration to claim, in fact, that in several respects the Holy Office [of the Inquisition] was a pioneer in judicial reform.

The defense attorney was an integral part of Roman trial procedure at a time when he played only a ceremonial role in the great imperial legal code, the Constitutio Criminalis Carolina (1532) and was being deliberately excluded by the French Ordinance of Villers-Cotterets (1539). In England felons were denied the right to counsel until 1836. Whereas in inquisitorial courts the defendant received a notarized copy of the entire trial (with the names of the prosecution witnesses deleted) and was given a reasonable period of time to prepare his reply to the charges, in secular courts the evidence against him was read and he had to make his defense on the spot. Skepticism in regard to witchcraft invaded Roman legal circles at a time when other parts of Europe remained in the grip of a witchhunting mania. Not least among the reasons which spared Italy the epidemics of bloody persecutions which ravaged northern Europe from the late sixteenth through much of the seventeenth century, was the insistence by the Inquisition that the testimony of a suspected witch was of extremely limited validity as a basis for prosecution against others. Judges were instructed, for example, to discount testimony of a witch against persons whom she named as participants at Sabbats since it was assumed that frequently they were transported to these nocturnal reunions not physically but in illusions inspired by the Devil.

And, if it is true, as John Langbein asserts in his book, Prosecuting Crime in the Renaissance, that the beginning of imprisonment for punishment, rather than for the purpose of custody during the trial, can be traced back on the continent only to the closing decades of the sixteenth century, then the Inquisition, through its centuries-long practice of incarcerating ad poenam, must be regarded also as a pioneer in the field of penology, at a time when secular judges, in pronouncing sentence, had as alternatives only the stake, mutilation, the galleys, and banishment.

John Tedeschi, The Prosecution of Heresy (1991)

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)

As Henry Kamen said when appearing in the MSI [The Myth of the Spanish Inquisition BBC documentary], “We find that comparing the Inquisition, merely in Spain with other tribunals, that the Inquisition used torture less than other tribunals. And if you compare the Inquisition with tribunals in other countries, we find that the Inquisition has a [very clean] record with respect to torture.”

The MSI elaborated:

“The Inquisition used none of these [torture] methods [prevalent among secular authorities]. They had a rulebook … which specified what could and could not be done; those breaking the rules were sacked. So the Inquisition did not, as alleged, roast their victims’ feet, or brick them up [encase them in a wall] to languish for all eternity, or smash their joints with hammers, or flail them on wheels. They never used the iron maiden…. The inquisitors didn’t ravish their female victims…. In fact, the inquisitorial torture chamber of popular myth never existed, even though this image [of a torture chamber presented in the documentary] was reprinted hundreds of times. And it was not only the use of torture that was falsified; stories were also fabricated about the gruesome conditions in which prisoners were kept.”

Kamen expanded on this last point, saying:

“Ironically, the Inquisition had probably the best jails in Spain…. Let me take a quotation from the inquisitors in Barcelona in the middle of the 16th century, when they were asked to report on the state of their prisons and they said, “Our prisons are full.” But then they complained to their bosses in Madrid, “We don’t know where to send the leftover prisoners we have; we cannot send them to the city jails because the city jails are overcrowded, and there they are dying at the rate of 20 a week.””

In fact, so superior were Inquisition jails that there were “instances of prisoners in secular criminal courts blaspheming in order to get into the Inquisition prison to escape the maltreatment they received in the secular prison,” said another MSI-featured expert, Northern Illinois University history professor Stephen Haliczer.

Inquisition jurisprudence was superior as well. Just consider how the Roman Inquisition, established in 1588 by Pope Sixtus V, started to bring modernity to the Middle Ages. As scholar John Tedeschi points out in The Prosecution of Heresy: Collected Studies on the Inquisition in Early Modern Italy, the Roman Inquisition gave the accused a right to counsel and would even provide him an attorney, and a notarized copy of the charges would be available so that a defense could be formulated in advance. Secular courts at the time offered none of these rights and protections. In fact, so ahead of its time was the Roman Inquisition that, Tedeschi writes, “It may not be an exaggeration to claim … that in several respects the Holy Office was a pioneer in judicial reform.”

Selwyn Duke, “The inquisition and iniquity: Burning heretics or history?” The New American (2013, Dec 23)