Other works on Trial Procedures by Henry Ansgar Kelly

The Matrimonial Trials of Henry VIII. Stanford U. Press, l976. Reprint: Eugene: Wipf and Stock, 2004. New Foreword. Reprint: Omaha: Gryphon, 2013, for The Notable Trials Library, Intro., Alan M. Dershowitz.

Draws on the official court record of the Legatine trial of 1529 (never used before). Shows that Henry was not a plaintiff in an annulment petition, but rather he and Catherine were both defendants in an inquisition, i.e., a criminal trial (the same was true of Henry and Anne Boleyn in 1536 and Henry and Anne of Cleves in 1540). Gives a history of matrimonial impediments and how they were appealed to by the king’s lawyers, including multiple tries at “public honesty” (against J. J. Scarisbrick). Reveals Henry’s private theology, as set forth by Cranmer: affinity is not contracted by sex (which would bar him from Anne Boleyn), but by marriage (barring him from Catherine of Aragon)

Thomas More’s Trial by Jury: A Procedural and Legal Review with a Collection of Documents. Woodbridge: Boydell and Brewer, 2011. Paperback edition, 2013.

For the first time, all existing reports of More’s trial have been gathered together and analyzed. More was charged with treason for impugning Henry VIII’s title of Supreme Head of the Church. Hitherto, the consensus has been that the judges were amenable to reasonable arguments and dismissed three of the four charges against him, and that More pleaded not guilty only to the fourth. It is argued here that More was charged and convicted on the whole Indictment. After the verdict of guilty was returned, the consensus view is that More made a standard motion to overturn it. There is, however, no evidence that such a motion was ever used in criminal cases in the sixteenth century. The most important legal question, then, is not whether a motion on his part should have been accepted, but whether the judges treated More fairly and according to law in not accepting his contention that he did not fall under the Treasons Statute. More argued, first, that he did nothing by spoken or written word or by deed to impugn the King's title, and specifically, that his silence, or refusal to speak on the subject, should be not construed as opposition, but, if anything, as affirmation; and, secondly, that he did nothing out of malice, which was a necessary condition for incurring the statutory censure.

“Inquisition and the Prosecution of Heresy: Misconceptions and Abuses.” Church History 58 (1989) 439-451. Repr. in Inquisitions (2001), article I.

The term “inquisition” has been hijacked by historians of heresy to refer only to heresy prosecution. Rather, it was a new form of criminal procedure set out by Innocent III at the Fourth Lateran Council in 1215. Although it was soon utilized against heresy, the rules remained the same, except that endangered witnesses could keep their names secret. However, due process was often abused by heresy inquisitors.

Inquisitions and Other Trial Procedures in the Medieval West. Variorum Collected Studies Series. Aldershot: Ashgate Publishing, 2001.

Essays on inquisitorial and common-law trial procedures, emphasizing rules of due process and violations of them in practice.

“The Right to Remain Silent: Before and After Joan of Arc,” Speculum 68 (1993) 992-1026. Repr. in Inquisitions (2001), article III.

Fifth-Amendment rights are more indebted to due-process rules of canon law than to Magna Carta and common-law precedents. Defendants in inquisitions have the right to be properly charged before answering questions. Joan of Arc was denied this right in her 1431 trial. In the retrial of 1456, only a few critics recognized this right of silence.

“Luther at Augsburg, 1518: New Light on Papal Strategies,” Journal of Ecclesiastical History 70 (2019) 804-22.

Leo X’s brief Cum nuper was sent not on September 11 but on November 2. It referred to a lost brief countermanding the order of 23 August for Luther’s arrest, and instead offering a safe-conduct to Rome; but Luther’s abrupt departure from Augsburg prevented the offer from being made. Cum nuper, sent too late, authorized Cardinal Cajetan to actually put Luther on trial (with no restriction on debate). In Exsurge Domine (1520), Leo convicted Luther without trial on inflated charges of heresy, adding false claims, one of which was that Luther had rejected an invitation to Rome.

“Galileo’s Non-Trial (1616), Pre-Trial (1632-33), and Trial (May 10, 1633): A Review of Procedure, Featuring Routine Violations of the Forum of Conscience,” Church History 85 (2016) 724-61.

Examines Galileo’s confrontations with the Holy Office of the Roman Inquisition in light of the rules and technicalities of inquisitorial procedure as set forth in the Corpus juris canonici, officially issued in 1582 under the auspices of Pope Gregory XIII. When first summoned in 1616, Galileo was not questioned, but merely warned not to espouse heliocentrism. In 1632, after he published his Dialog of the Two Systems, Holy Office investigations resulted in a summons, and when he appeared in April 1633, he was interrogated without being charged.

Because the case against him was weak, the deputy inquisitor talked him into a plea-bargain: admit guilt in return for a light sentence. His formal trial took place on May 10 (as usual in inquisitorial trials, the actual objection of charges was not recorded). He admitted giving stronger arguments to the heliocentric debater, but denied heretical intention. This denial triggered an automatic examination of his private beliefs under torture (in his case, only threat of torture)­—a new procedure adopted by the Holy Office around the turn of the seventeenth century. After abjuring the heresy of heliocentrism and being sentenced to prison, his penalty was commuted to villa-arrest.

Galileo rejected heliocentrism again, under no constraint, in a letter in 1641. Meanwhile, Copernicus’s book, approved for re-issue with a few tinkerings, was allowed to speak in favor of the system that bore his name. Procedurally, Galileo was not the object of special favor or disfavor, but was treated in accord with standard bureaucracy.

“Torture in Canon Law and Church Tribunals: From Gratian to Galileo,” Catholic Historical Review 101 (2015) 754-93.

Church historians have thought that the ancient and medieval Church disallowed torture in court proceedings. This view draws on Gratian’s Decretum (ca. 1140), but Gratian cites canons that permit judicial torture. Deutero-Gratian (ca.1150) added canons specifying torture from Roman civil law. Huguccio (ca.1190) and the Ordinary Gloss to the Decretum (1215 and later) also adopted Roman criteria but stipulated that the clergy using torture could not apply coercion involving serious injury or bloodshed. Heresy inquisitors added a twist to this practice well before Galileo’s trial in 1633: a defendant admitting a heterodox deed but denying evil intent must be examined under torture.