Inquisitorial Proceedings

For many years numerous historians have attempted to explain the inquisitorial proceedings established by Pope Gregory IX in twelve century France. The inquisition was a brilliant innovation in trial procedure under the justice system of the Roman Catholic Church. In attempts of explaining it, historians have had several misconceptions about the true origin, purpose, and process of this trial; giving perhaps the wrong message about the inquisition. As explained in Kelly’s article, this procedure was stupendous and much-needed but it became a victim of the abusive practices of some judges in special heresy tribunals. None the less, these abuses should not demerit the inquisition itself. Kelly argues that even the term “inquisition” has been a hostess for verbal abuse and confusion.

Also commenting that, even the most careful historians seem to believe that heresy judges had far greater legal powers, a statement which Kelly firmly disagrees with. Proving also, opposed to comments from other historians, that the defendants in these trials were not legally denied any defense in comparison with other proceedings at the time. According to the medieval concepts of justice, the inquisitorial proceedings can be thought of as “fair”, considering the powers that were legally permitted; however, this is not including any abusive practices of the law judges might have exercised illegally.

Kelly’s article convinces the reader that there are several misconceptions about the inquisition. He argues firmly that “there was not a single provision of the rules of procedure for inquisition that privileged heresy cases over all other kinds of cases or limited due process for persons charged with heresy in ways that were not permitted for persons charged with other crimes”. In an attempt to first set a common understanding about the grammatical abuses of the term “inquisition”, Kelly begins his article by pointing out the distinct abuses between this word when capitalized and when in lower-case. He argues that historians have used the word “Inquisition” (capitalized) to refer to it as a permanent centralized papal institution; mistakenly, because “there was never a permanently constituted congregation and tribunal of inquisition against heresy until the sixteenth century” and in reality “there were only papal inquisitors, sometimes sporadically appointed, sometimes more permanently commissioned, but not organized over larger areas”.

Kelly then turns his attention to the lower case abuse of the term “inquisition” used commonly by historians to simply mean a heresy prosecution, when really the inquisition was not specifically invented for searching out only heretics. More or less, after reviewing several definitions of the word from historians like Lea, Yves Dossat, and Edward Peters; one can conclude that “The reality is that the inquisition was a new form of trial to replace the accusatio, which it did”. Basically the inquisition refers to a judicial technique and even though it was not originally invented for searching out heretics, Kelly agreeing with Lea admits that it was rarely used outside heresy proceedings. Once the misunderstandings of the word have been clarified and we understand what the term inquisition actually refers to we must acknowledge that there is more than mere grammatical abuse and confusion. Mistakenly, a lot of the information published about the inquisition pushes us to believe the prosecutions against heretics were unfair.

Kelly spends his article defending the fact that according to medieval concepts there was nothing unfair about these trials; explaining the ways in which the process of an inquisition has been widely misunderstood and misused by historians and trying to correct it. Once we comprehend what an inquisition was we must understand now what a heretic was considered to be. One of the main issues of being a heretic was that for obvious reasons heretics did not see themselves as “heretical” but rather as authentic Christians who were “reclaiming the true teaching of the gospel.” The fact that they stubbornly consider themselves to know the word of God better than institutions already set up condemned them. To be considered heretical one must externalize their thoughts in the form of words, signs, or behaviour expressing that their religious practices are different and better than that of the church. A heretic therefore is “someone who willfully chooses to resist the virtuous will of the guardians of truth.”

The church saw it as their job to change the will of these heretics and “save their souls and those of other Christians.” They did this by establishing heresy inquisitions that followed the same laws of the time as any other trial for a crime. In an attempt to somehow try to demonstrate how inquisitorial proceedings were unfair, even some of the most careful historians of heresy prosecution writings today have supported the erroneous idea that heresy judges, especially papally appointed heresy inquisitors, had far greater legal powers than judges of a regular trial of the time. Kelly agrees again with Lea stating that “the papal judges did not have greater powers than other judges, and historians who have claimed otherwise are mistaken”. He makes it clear that in order to correctly critic whether or not the papal judges had greater power, one must distinguish between the powers such judges legally had aside from powers that they exercised illegally. Technically, there was no difference between bishops and papal inquisitors and one should even add that “since the bishops were ordinary judges with jurisdiction not only over heresy but every kind of offence, they had far more power than did the papal inquisitors, who had authority only over cases of heresy.”

Judges had the power to employ only moderate forms of torture just like any regular trial. These included rods or switches or leather whips. However “the inquisitor’s goal was not primarily to punish the guilty but to identify them, get them to confess their sins and repent, and restore them to the fold.”And eventually restrictions were placed on the use of torture by papally appointed heresy inquisitors. The judges could not condemn anyone without “open and lucid proof”. However, that point granted, Kelly is not blind to the fact that there was an immense practice of the illegal use of power and that because of this the inquisitorial system, in Lea’s words, became a “mockery of justice.” Another reason as to why inquisitorial proceedings should be considered “fair” is because the defendants of these trials were not legally denied of any defense in comparison with other proceedings at the time.

After examining readings from the time and of other historians, Kelly shares in his article that the alleged restrictions of on heresy defendants were non-existing and either misinterpretation by historians or a distortion of the law by the judges. Just like any other trial of the time, no one was presumed guilty until proven with adequate proof. Persons being accused of heresy also had the right to be defended by legal counsel, just like persons accused of other crimes. Similar to the English common law, only persons judicially convicted of heresy were forbidden lawyers. Defendants in heresy inquisitions also had the right to appeal from a judge to the pope, if they believed their rights were being violated at any point during the trial. Contrary to what other historians have said, appeals were in fact permissible and they were accepted by law. A regular procedure for heretics “inquisitio” usually started with public opinion. It was required procedure that an individual being charged must have trustworthy members of the community consider him guilty. The person charged then had to be given and explained to him all the rights of defense allowed.

All legal precautions were applied to avoid a corruption of this trial however it still remains true that these laws were routinely ignored to the point that violations were not even recognized as such anymore. As explained in the article, the term inquisition has been widely misunderstood and misused by historians. This brilliant system was in fact fair, considering medieval concepts of justice. Heresy judges had the exact amount of legal powers as any other judge of the time and the defendants of these trials were not legally denied of any defenses in comparison with other proceedings of the time. As explained, Kelly agrees mainly with Lea and contradicts several ideas of other scholars in his field.

Kelly’s style of writing is very effective in proving his point, given the fact that he establishes clearly what is understood by other historians and then makes his point clear. He also establishes the definitions of the words used and translates to English most of what is of another language. He is correct in his argument stating the inquisitorial heresy proceedings were fair given the reason that there was not any provision of the procedures for inquisition that differentiated the process from persons charged of other crimes. The inquisitio technique formed the basis of modern Continental criminal procedure and its abusive practices are a misrepresentation of what the inquisition really was.