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 notion’s to the contrary, only a very small percentage of cases concluded with capital punishment. Canon law prescribed that only the obstinate and unrepentant who refused to be reconciled to the church, those who had suffered previous convictions for formal heresy, or those who were convicted of especially heinous crimes were liable to the death penalty.

The available figures on the numbers of those handed over by the Inquisition to the secular arm suggest that the executed were relatively few. Only four of the first thousand defendants who appeared before the tribunal of Aquileia-Concordia (1551-1647) were put to death. A tentative calculation for Venice has counted 14 executions between 1553 and 1588, plus 4 deaths occurring in prison and 4 extraditions to deaths in Rome between 1555 and 1593. Only 12 executions for heresy have been counted for Malon during the second half of the 16th century (but on the basis of incomplete documentation), and only one, in 1567, for the religious heresy in Modena; and of the more than two hundred sentences (several involving more than one defendant) contained in the Trinity College manuscripts mentioned above, for parts of the years 1580-1582, only four called for condemnations to the stake.

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. The names of 97 victims of the Holy Office in the city of Rome for the period 1542-1761 have been extracted from the records of the archconfraternity, whose function it was to accompany the condemned to their deaths. As for Spanish inquisitorial courts, they executed approximately 820 people between roughly 1540 and 1700, out of a total of more than 44,000 cases, for a rate of 1.9 percent.

John Tedeschi, The Prosecution of Heresy (1991)

Apart from Bologna (which saw seven protestants and saw one of the four executions on this list), protestants appear rarely in the figures from central and southern Italy: a conventicle of five women who celebrated their own communion at Ancona provided the only significant episode. From Tuscany southward, magic was the most common charge. Naples at self-reported only one sentence against a female Judaizer. Taken all in all, these documents add up to a tantalizing snapshot of the general activities of the Roman Inquisition moment when the holy office of the Venetian Republic resembled of those throughout northern Italy in their preoccupation with protestant heresies, while those in the duchies of the Po valley or Tuscany were already turning to the prosecution of illicit magic as their chief concern.

John Tedeschi, The Prosecution of Heresy (1991)

The Roman Inquisition was reconstituted in 1542 to combat the menace of Protestantism in the Italian peninsula, where as the Spanish Inquisition had been created more than half a century earlier to deal with massive numbers of converted Jews. The nature of what was considered “heresy” in each system reflects these original concerns. In northern and central Italy, “Lutheranism “overwhelmingly dominated the first generation of inquisitorial activity, lasting until the 1580s. The venetian records offer a truly remarkable example: over its first 35 years (1547-1582) this holy office tried more than 700 “Lutherans” among its first 1,200 cases- plus 36 Anabaptists, 68 cases of “heresy in general,” 20 of eating meat during Lent, and almost 90 concerned with possession or reading of prohibited books. Approximately 80 percent of these early cases, therefore, concern protestant or crypto-protestant behavior. In the Venetian Terrafirma, Aquileia-Concordia showed a similar concentration on such offenses during its first 38 years (1557-1595); of its initial 380 cases, 200 or four suspected product to Paris sees and 74 for consuming meat during Lent (A possible indication of northern influences at work). In this rural area of low literacy there were only 12 cases of prohibited books. Again, over 75 percent of these cases may have involved Protestant sympathies. […]

In the Spanish portions of southern Italy our statistics suggest a different meaning in the holy office’s concern with heretics. Although a sizable share of the earliest preserved cases from Naples maybe classified as heresy trials, if you deal with protestants; in fact, through 1620 accused Mohammedans outnumbered reputed protestants by more than five to one. The diligent Spanish inquisitors uncovered large numbers of Protestants, but here too these were numerically swamped by the followers of Islam. Before 1560, the Sicilian Holy office tried more than 50 Protestants (more than any other tribunal in the Spanish system) and only eleven Moslems; but between 1560 and 1615, they judged nearly four Moslems for every protestant (471 and 138 respectively).

John Tedeschi, The Prosecution of Heresy (1991)

Despite the common underpinning of both Spanish and Italian tribunals in common law, there were serious doctrinal and judicial discrepancies between them, in addition to the well-known organizational differences.

In Spanish practice, sequestration of property occurred at the moment of arrest, followed by confiscation in the event of conviction; in Italy property of defendants usually survived even the admission of guilt in the case of penitent heretics, with the exception of funds exacted to sustain them in prison during the trial. In Spanish law, consultors attached to the courts saw trial proceedings in their entirety, including the names of the prosecution witnesses, before delivering their opinions; these names were withheld in the Italian tribunals. Under the Spanish, the confession of a minor was null and void without the presence of a special defense official, the curatore, but this figure seems to have been absent from Italian practice. In Italian usage a defense attorney was mandatory, if requested, even to an offender who had admitted his crime, but was withheld in such a case in Spanish courts. The Inquisition in the Roman system regularly prosecuted polygamy, viewing this as a heresy against the sacrament of matrimony. Spanish inquisitors, on the other hand, questioned their jurisdiction over bigamists, tending to conceive the offense as carnally motivated, rather than heretical. They felt, consequently, that it fell to the authority of the secular courts.

John Tedeschi, The Prosecution of Heresy (1991)

In the course of the sixteenth century it became the practice increasingly for Rome to be kept minutely informed about developments in the outlying inquisitions, and it was customary for the latter to send detailed reports of trials in progress or completed – and then await instructions before passing sentence. The central tribunal’s quest for uniformity resulted in a series of measures which assigned the final disposition of all but the most ordinary cases to Rome. There are many letters, almost sarcastic in tone, in which members of the Congregation attempt to differentiate for the benefit of the local officials what is ordinary from what is not.

John Tedeschi, The Prosecution of Heresy (1991)

It has become customary to speak of the inquisitor as the representative of high culture and thus, often incapable of grasping the moral and intellectual world of socially and culturally subaltern defendants. (The possibility of a reverse situation is generally not raised.) Yet, among these officials there must have been many of modest, rural background who had been raised in a milieu of folk traditions.

Moreover, there seems to be evidence, again provided by the Instructio, that jailers, certainly not typical representatives of high culture, who had more intimate proximity to the imprisoned women than did the judges, were often guilty themselves of suggesting what they should confess at the interrogations.

John Tedeschi, The Prosecution of Heresy (1991)

It is well known and frequently lamented that the Archive of the Holy Office in Rome is inaccessible even to serious scholars. Behind this obstruction of legitimate research there is nothing more sinister than bureaucratic obstinacy and inertia, which time may overcome. Actually, if the doors of the Congregation for the Doctrine of Faith (formerly the Inquisition) were to be thrown open tomorrow we probably would not find terrible secrets; in fact, we would find relatively few documents, mainly doctrinal decrees and the paper of the now defunct Congregation of the Index, which were transferred to the palace of the Inquisition when it discontinued its censorship activities in 1917.

The Archive of the Holy Office was impoverished by several terrible depredations. The first occurred on 18 August 1559, when a Roman mob celebrated the death of Pope Paul IV by sacking the headquarters of his most cherished institution, liberating its prisoners and burning its records. A second took place more than two and a half centuries later when, to fulfill Napoleon’s dream of a central archive for the empire and a supra-national center of learning in Paris, valuable books and manuscripts were removed from libraries and archives of conquered Europe, including the Vatican. More than three thousand crates were distributed over several convoys; the first set out from Rome in the dead of winter, February 1810, and attempted the long and laborious journey over the Alps. The convoys were accompanied by archivists of the Church, whose feelings we can imagine when they watched two wagons disappear into the rushing water of a torrent at Borgo San Donnino, near Parma, or when eight cases slid into a canal on the road between Turin and Susa.

John Tedeschi, The Prosecution of Heresy (1991)

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)