To legal historians versed in the Romano-canonical legal tradition of the jus commune, “inquisition” (inquisitio) is a technical term, referring to a set of procedural rules governing trials in the ecclesiastical courts of Latin Christendom that dealt with ex officio (“criminal”) cases, as opposed to litigation between parties. Prior to its adoption, a criminal trial ordinarily required an accusation by a private individual. After a constitution of Pope Innocent III known as Qualiter et quando, issued at the Fourth Lateran Council (1215), ecclesiastical judges could initiate inquisitorial trials on the basis of what modern law would term “probable cause,” embodied in the concept of publica fama: “public fame,” or a widespread belief by credible persons in the community that a specific person had committed a specific wrongful act. Henry Ansgar Kelly suggests that Qualiter et quando was functionally comparable in canon law to the significance of Magna Carta (issued in the very same year) for English common law, in that it provided for (again, in modern terminology) safeguards for due process (419). To anyone else, and particularly to Protestant and/or English polemicists of the post-medieval period, “inquisition” of course carries much different connotations, evoking sham trials, particularly those involving heresy and torture.
Kelly has been writing about inquisitorial procedure of the medieval and Tudor periods for decades, along with cognate work such as his contributions to an indispensable volume about the trial of Sir Thomas More (jus commune principles were tangential to that common law trial). [1] Rather disarmingly, he reveals that his interest in inquisition was first piqued by the hearings related to Henry VIII’s marriages (311). To belabor medieval terminology further, this book is a kind of corrigenda + apologia + summa. He sometimes revisits his earlier writing to clarify and update points he asserted years ago but now emends (e.g. 19, 300 n.421).
More centrally, he argues that inquisitorial process embodied principles of procedural fairness as wards against injustice, that English courts generally acknowledged and abided by those safeguards from the thirteenth century (when the earliest records of such courts begin) through the sixteenth century, and that this stood in sharp contrast to glaring abuses of the system in other Western European countries during the later middle ages. “I hope that these observations will be adequate to convince...students of the law to look with new eyes on the inquisitorial system, not only its genuine virtues but also its specific defects, both in law and in action” (424). At the same time, he acknowledges the points where the system could be subverted. For one thing: under inquisitorial process, one person was both judge and prosecutor. For another: under that process, the accused was supposed to swear an oath in response to specific charges, after which--if the accused denied those charges--a trial proceeded on the basis of rules of evidence (sworn witness testimony or documentary evidence, subject to a rich jurisprudence in the jus commune tradition) or, at judge’s discretion when clear proof was lacking, to compurgation (a further oath of innocence supported by the supporting oaths of trustworthy members of the community). One flagrant breach of the rules, demonstrable on the part of some unscrupulous judges, was to demand answers from accused before specific charges were brought: and these could evolve into opportunities for self-incrimination by unwary accused. Suspects, for instance, who could have been formally charged with preaching, speaking, or writing heresy, might find themselves being interrogated (before specific charges) as to their opinions on doctrinal matters, which could then be framed against them: thoughts (subject to the confessional) rather than the deeds that the courts were there to investigate.
To conflate “inquisition” too readily with “heresy,” though, misrepresents what the English ecclesiastical courts spent most of their ex officio energy on, which was tediously routine sexual or matrimonial irregularities, tithes, testaments, and the like, as Kelly shows clearly in his discussion of the earliest court records of ex officio cases (chapter 5). By contrast, when moving forward chronologically to the later Middle Ages, he does dwell on heresy trials, in part probably because these furnish the most prolific details about how complex cases could go forward (or awry). The most impressive aspect of this richly detailed book is Kelly’s deep explication of many documented cases, teasing out the procedural steps and demonstrating the varied forms they could take, based upon a prodigious treatment of many examples ranging from trials of Templars in England (badly misrepresented, he argues, in most interpretations), to Lollards, to uniquely idiosyncratic personalities such as Margery Kempe, as well as early Tudor controversies about inquisition procedure itself like that between More and Christopher St. Germain. The book will be invaluable to specialists and beyond for that sake alone.
One can find only a few causes for gentle cavils. One is that Kelly is simply unfortunate not to have been able to discuss “criminous clerks” (members of the clergy or, later, those who could pass a reading test, who after being convicted of a crime in a secular court could ask to be claimed by a bishop, to be imprisoned instead of being hanged and eventually to hope for release) in light of Margaret McGlynn’s recent magisterial, highly detailed analysis of this process, which would have filled many gaps in what Kelly has to offer on the subject. [2] Another is that there is a substantial recent literature about howpublica fama happened in practice, in what one might call the social history of the law: namely, via the churchwardens who presented allegations of delicts to church officials, and how they fit into the larger picture of local community notables’ interactions with both secular and ecclesiastical law, which Kelly does not touch upon, so that the concept of “probable cause” may sound opaquely abstract to those not already versed in the topic. The treatment of a massive number of particular cases is so dense that at times it would have been helpful to the reader to have some signposts along the path of the overall argument. And one is left wondering why England seems to have made creditable use of the inquisitorial process, in contrast to those other systems on the Continent: was it simply that heresy was relatively modest in its footprint west of the Channel, and--despite much-sensationalized instances to the contrary--usually led to resolutions falling far short of the bonfire? [3]
But, again, these are modest questions to raise. This book is highly impressive, a summing-up (a summa) of decades of work into legal history, and one with much to inform historians outside that field.
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Notes:
1. Henry Ansgar Kelly, Louis W. Karlin, and Gerard B. Wegemer, eds., Thomas More’s Trial by Jury: A Procedural and Legal Review with a Collection of Documents (Boydell and Brewer, 2011).
2. Margaret McGlynn, The King’s Felons: Church, State, and Criminal Confinement in Early Tudor England (Oxford University Press, 2023).
3. As suggested by R. H. Helmholz, The Oxford History of the Laws of England, Volume I: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford University Press, 2004), 607-608.