To call the Inquisition a model of justice is a manifest exaggeration, as every fair student of its history must admit.
The Inquisitorial procedure was, in itself, inferior to the accusatio, in which the accuser assumed the burden of publicly proving his charges. That it was difficult to observe this method of procedure in heresy trials can readily be understood; for the poena talionis awaiting the accuser who failed to substantiate his charges was calculated to cool the ardor of many Catholics, who otherwise would have been eager to prosecute heretics. But we must grant that the accusatio in criminal law allowed a greater chance for justice to be done than the inquisitio. Besides, if the ecclesiastical inquisitio had proceeded like the civil inquisitio, the possibility of judicial errors might have been far less. "In the inquisitio of the civil law, the secrecy for which the Inquisition has been justly criticized, did not exist; the suspect was cited, and a copy of the capitula or articuli containing the charges was given to him. When questioned, he could either confess or deny these charges. The names of the witnesses who were to appear against him, and a copy of their testimony, were also supplied, so that he could carry on his defence either by objecting to the character of his accusers, or the tenor of their charges. Women, minors aged fourteen, serfs, enemies of the prisoner, criminals, excommunicates, heretics, and those branded with infamy were not allowed to testify. All testimony was received in writing. The prisoner and his lawyers then appeared before the judge to rebut the evidence and the charges."[1]
[1] Tanon, op. cit., pp. 287, 288.
In the ecclesiastical procedure, on the contrary, the names of the witnesses were withheld, save in very exceptional cases; any one could testify, even if he were a heretic; the prisoner had the right to reject all whom he considered his mortal enemies, but even then he had to guess at their names in order to invalidate their testimony; he was not allowed a lawyer, but had to defend himself in secret. Only the most prejudiced minds can consider such a procedure the ideal of justice. On the contrary, it is unjust in every detail wherein it differs from the inquisitio of the civil law.
Certain reasons may be adduced to explain the attitude of the Popes, who wished to make the procedure of the Inquisition as secret and as comprehensive as possible. They were well aware of the danger that witnesses would incur, if their names were indiscreetly revealed. They knew that the publicity of the pleadings would certainly hinder the efficiency of heresy trials. But such considerations do not change the character of the institution itself; the Inquisition in leaving too great a margin to the arbitrary conduct of individual judges, at once fell below the standard of strict justice.
All that can and ought to be said in the defence and to the honor of the Roman pontiffs is that they endeavored to remedy the abuses of the Inquisition. With this in view, Innocent IV and Alexander IV obliged the Inquisitors to consult a number of boni viri and periti; Clement V forbade them to render any grave decision without first consulting the bishops, the natural judges of the faith;[1] and Boniface VIII recommended them to reveal the names of the witnesses to the prisoners if they thought that this revelation would not be prejudicial to any one.[2] In a word, they wished the laws of justice to be scrupulously observed, and at times mitigated.[3] But, examined in detail, these laws were far from being perfect.
[1] Clementinæ, De Hæreticis, Decretal Multorum Querela, cap. i, sect. i.
[2] Sexto, De Hæreticis, cap. xx; cf. Tanon, op. cit., p. 391.
[3] Döllinger is very unjust when he says: "From 1200 to 1500 there is a long uninterrupted series of papal decrees on the Inquisition; these decrees increase continually in severity and cruelty." La Papauté, p. 102. Tanon (op. cit, p. 138) writes more impartially: "Clement V, instead of increasing the powers of the Holy Office, tried rather to suppress its abuses."
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