THE INQUISITION OF SPAIN

WORKS BY THE SAME AUTHOR

A HISTORY OF THE INQUISITION OF THE MIDDLE AGES. In three volumes, octavo.

A HISTORY OF AURICULAR CONFESSION AND INDULGENCES IN THE LATIN CHURCH. In three volumes, octavo.

AN HISTORICAL SKETCH OF SACERDOTAL CELIBACY IN THE CHRISTIAN CHURCH. Third edition. (In preparation.)

A FORMULARY OF THE PAPAL PENITENTIARY IN THE THIRTEENTH CENTURY. One volume, octavo. (Out of print.)

SUPERSTITION AND FORCE. Essays on The Wager of Law, The Wager of Battle, The Ordeal, Torture. Fourth edition, revised. In one volume, 12mo.

STUDIES IN CHURCH HISTORY. The Rise of the Temporal Power, Benefit of Clergy, Excommunication, The Early Church and Slavery. Second edition. In one volume, 12mo.

CHAPTERS FROM THE RELIGIOUS HISTORY OF SPAIN, CONNECTED WITH THE INQUISITION. Censorship of the Press, Mystics and Illuminati, Endemoniadas, El Santo Niño de la Guardia, Brianda de Bardaxí.

THE MORISCOS OF SPAIN. THEIR CONVERSION AND EXPULSION. In one volume, 12mo.

A HISTORY
OF THE
INQUISITION OF SPAIN

BY
HENRY CHARLES LEA. LL.D.
———
IN FOUR VOLUMES
———
VOLUME III.
———
New York
THE MACMILLAN COMPANY
LONDON: MACMILLAN & CO., Ltd.
1907
All rights reserved
PRINTED IN THE UNITED STATES OF AMERICA
Copyright, 1907,
By THE MACMILLAN COMPANY.
——
Set up and electrotyped. Published January, 1907.

CONTENTS OF VOL. III.

THE INQUISITION OF SPAIN.

BOOK VI. (Continued).

CHAPTER VII.
TORTURE

TO the modern mind the judicial use of torture, as a means of ascertaining truth, is so repellant and illogical that we are apt to forget that it has, from the most ancient times, been practised by nearly all civilized nations. With us the device of the jury has relieved the judge of the responsibility resting upon him in other systems of jurisprudence. That responsibility had to be met; a decision had to be reached, even in the most doubtful cases and, where evidence was defective and conflicting, the use of torture as an expedient to obtain a confession, or, by its endurance, to indicate innocence, has seemed, until modern times, after the disuse of compurgation and the judgements of God, to be the only means of relieving the judicial conscience. It was admitted to be dangerous and fallacious, to be employed only with circumspection, but there was nothing to take its place.[1]

That it should be used by the Inquisition was a matter of course, for the crime of heresy was often one peculiarly difficult to prove; confession was sought in all cases and, from the middle of the thirteenth century, the habitual employment of torture by the Holy Office had been the most efficient factor in spreading its use throughout Christendom, at the expense of the obsolescent Barbarian customs. It is true that Spain was loath to admit the innovation. In Castile, which rejected the Inquisition, Alfonso X, notwithstanding his admiration of the Roman law, required that confession must be voluntary and insisted that, if obtained by torture, it must subsequently be freely ratified, without threats or pressure.[2] In the kingdoms of Aragon, which admitted the Inquisition, torture remained illegal, and it was only by the positive commands of Clement V that it was employed, in 1311, on the Templars.[3] By the time that the Spanish Inquisition was organized, however, torture in Castile was in daily use by the criminal courts, and there could be no question as to the propriety of its employment by the Holy Office. In Aragon, Peña tells us that, although it was forbidden in secular jurisprudence, it was freely permitted in matters of faith. Yet its use was jealously watched, for when the aid of torture was sought in the case of a prisoner accused of the murder of a familiar, the Córtes of 1646 complained of it as an unprecedented innovation, which was only prevented by the active intervention of the diputados and viceroy.[4] Valencia had been less rigid in excluding torture from its courts, but so limited its use that, in 1684, the tribunal reported that, in cases of unnatural crime (of which it had cognizance, subject to the condition of trial by secular process), it no longer used torture, because the methods permitted by the fueros were so light that the accused felt no fear of them, and they were useless in extracting confession.[5]

MORE MODERATE THAN IN ROME

We shall see that occasionally tribunals abused the use of torture, but the popular impression that the inquisitorial torture-chamber was the scene of exceptional refinement in cruelty, of specially ingenious modes of inflicting agony, and of peculiar persistence in extorting confessions, is an error due to sensational writers who have exploited credulity. The system was evil in conception and in execution, but the Spanish Inquisition, at least, was not responsible for its introduction and, as a rule, was less cruel than the secular courts in its application, and confined itself more strictly to a few well-known methods. In fact, we may reasonably assume that its use of torture was less frequent, for its scientific system of breaking down resistance, in its long-drawn procedure, was more effective than the ruder and speedier practice of the secular courts where, as we are told by Archbishop Pedro de Castro of Granada, it was notorious that no one confessed except when overcome by torture.[6]

In this respect, the comparison between the Spanish and the Roman Inquisition is also eminently in favor of the former. We shall have occasion presently to see the limitations which it placed on the use of torture, while in Rome it was the rule that all who confessed or were convicted in matters of faith were tortured for the further discovery of the truth and the revelation of accomplices. In addition to this there were many classes of cases in which torture was employed by Rome to extort confession and in which it was forbidden in Spain—those involving mere presumption of heresy, such as solicitation, sorcery, blasphemy etc. Moreover in Rome the in arbitrio judicum applied not only to the kind and duration of the torture but also to its repetition.[7] Spanish writers on practice, therefore, were justified in claiming for their own tribunals a sparing use of torture unknown in Italy, while, as regards its severity, the frequency with which in the trials we find that the accused overcame the torture would indicate that habitually it was not carried to extremity, as it so frequently was in the secular courts. No torture-chamber in the Inquisition possessed the resources of the corregidor who labored for three hours, in 1612, to obtain from Diego Duke of Estrada confession of a homicide—the water torture, the mancuerda, the potro, hot irons for the feet, hot bricks for the stomach and buttocks, garrotillos known as bone-breakers, the trampa to tear the legs and the bostezo to distend the mouth—and all this was an every-day matter of criminal justice.[8]

The indirect torture of especially harsh imprisonment was not unknown to the Inquisition, and was occasionally employed for the purpose of breaking down obstinacy. It was not, as in the medieval Inquisition, prescribed as an ordinary resource, but it was at the discretion of the tribunal and could at any time be brought into play, as in the case of a pertinacious heretic, in 1512, who was consigned to the most noisome part of the prison, and afflicted in various ways, in the hope of enlightening his understanding.[9] In the later period of leisurely action, protracted imprisonment was frequently resorted to, in the hope of inducing repentance and conversion, when wearing anxiety and despair weakened the will as effectually as the sharper agonies of the pulley and rack. There was also the ingenious device, frequently effective, by which the fiscal concluded his formal accusation with a demand that, if necessary, the accused should be tortured until he confessed. This was unknown in the earlier period, but the Instructions of 1561 recommend it, giving as a reason its good results, and also that torture requires a demand from the prosecutor and a notification to the defendant, who is unprepared for it at this stage of the trial.[10] After this it became the universal custom in all cases admitting of torture, and the profound impression produced on the unfortunate prisoner can be readily conceived.

PRELIMINARIES

Torture itself, however, was regarded as too serious to be left to the arbitrary temper of a baffled or angry inquisitor, and was preceded by formalities designed to prevent its abuse. It was the last resort when the result of a trial left doubts to be satisfied. After the prosecution and defence had closed, and the consulta de fe had assembled to consider the sentence, if the evidence was too weak for condemnation while the innocence of the accused was not clear, it could adopt a vote to torture and postpone the decision to await the outcome. Even in the ferocity of the early period this deliberateness was frequently observed, although in the reckless haste of procedure it was often omitted. Thus, in the case of Diego García, a priest accused of having said twenty years before, when a boy, that the sacrament was bread, the consulta held two meetings, January 18 and 19, 1490, and finally voted torture. There was no haste however and it was not until February 11th that García was exposed to the very moderate water-torture of about a quart of water. No confession was obtained and he was untied, with the protest that he had not been sufficiently tortured, but it was not repeated and, on February 26th, he was acquitted and restored to his fame and honor, though, with the curiously perverse inquisitorial logic, he was made to abjure de vehementi and forbidden to celebrate mass for six months.[11] The vote of the consulta however was not universal and, in 1518, the Suprema ordered it to be always observed, but a clause in the Instructions of 1561, reminding inquisitors that they must not inflict torture until after hearing the defence shows how difficult it was to restrain their arbitrary action.[12] Even in the early eighteenth century, in reviewing a summary of cases of Valencia, from 1705 to 1726, the Suprema rebuked the tribunal for torturing Sebastian Antonio Rodríguez without previous consultation, but at this period the consulta de fe was becoming obsolete and everything was centering in the Suprema.[13]

The vote of the consulta was still only preliminary. After it, the accused was brought into the audience-chamber, where all the inquisitors and the episcopal Ordinary were required to be present. He was notified of the decision of the consulta; if he was a diminuto, the points in which his confession had failed to satisfy the evidence were pointed out; if a negativo, no explanations were necessary; if it was on intention or in caput alienum he was made to understand it. He was adjured, in the name of God and the Blessed Virgin, to confess fully, without false evidence as to himself or others and, if this failed to move him, a formal sentence of torture was signed by all the judges and read to him. It recited that, in view of the suspicions arising against him from the evidence, they condemned him to be tortured for such length of time as they should see fit, in order that he might tell the truth of what had been testified against him, protesting that, if in the torture he should die or suffer effusion of blood or mutilation, it should not be attributed to them, but to him for not telling the truth. If the torture was to discover accomplices, care was taken to make no allusion to him and to give him no chance of clearing himself, for he was assumed to be already convicted.[14]

Even this sentence was not necessarily a finality for, if the accused offered a new defence, it had to be considered and acted upon before proceeding further.[15] Moreover he had theoretically a right to appeal to the inquisitor-general from this, as from all other interlocutory sentences. This right varied at different times. A ruling by the Suprema, in 1538, appears to indicate that it was granted as a matter of right, but the Instructions of 1561 tell inquisitors that, if they feel scruple, they should grant it, but if satisfied that the sentence is justified they should refuse the appeal as frivolous and dilatory.[16] Still the right to ask it was so fully recognized that, if the accused was not twenty-five years of age and thus a minor, his curador or guardian was required to be present, in order to interject an appeal if he saw fit, and I have met with an instance of this in the case of Angela Pérez, a Morisco slave, before the Toledo tribunal in 1575, where it was as usual unsuccessful, for the Suprema confirmed the sentence.[17] Tribunals seem not infrequently to have allowed appeals, but, with the growing centralization in the Suprema, they became superfluous and a formula, drawn up in 1690, directs that no attention be paid to them.[18]

CONDITIONS

When the indications of guilt were too slender to justify torture, the consulta de fe sometimes voted to threaten torture.[19] Then the sentence was formally drawn up and read to the accused, he was taken to the torture-chamber, stripped and perhaps tied on the potro or escalera, without proceeding further. A curious case of this was that of Leonor Pérez who, at the age of seventy, was sentenced, May 3, 1634, in Valladolid, to be placed in conspectu tormentorum. When stripped, on May 10th, the executioner reported marks of previous torture; the proceedings were suspended and, on May 13th, she admitted that, twenty years before, she had been tortured in Coimbra. On June 14th the sentence was again executed, but, before being stripped, she confessed to some Jewish beliefs and then fainted. A postponement was necessary and two days later she revoked her confession. The case dragged on and it was not until August 1, 1637 that she was condemned to abjure de vehementi, to six years of exile, a fine of two hundred ducats, and to be paraded in vergüenza, but we still hear of her as in prison, early in 1639.[20] It required strong nerves to endure this threat of torture, with its terrifying formalities and adjurations, and it was frequently effective.

The conditions held to justify torture were that the offence charged was of sufficient gravity, and that the evidence, while not wholly decisive, was such that the accused should have the opportunity of “purging” it, by endurance proportionate to its strength. From the inquisitor’s point of view, it was a favor to the accused, as it gave him a chance which was denied to those whose condemnation was resolved upon. This is illustrated by a highly significant case in the Toledo tribunal in 1488. Juan del Rio had lived long in Rome, where he was present in the jubilee of 1475; by the arts of the courtier he won the favor of Sixtus IV and returned to Spain about 1483, loaded with benefices—among them a prebend in the Toledo cathedral—which excited cupidity and enmity. He was an Old Christian, of pure Biscayan descent, who could not be suspected of Judaism, but he was a loose and inconsiderate chatterer; in the Spain which he had left there was much licence, in the Rome where he had so long sojourned there was more; he could not, on his return, accommodate himself to the new order of things, and his reckless talk gave the opportunity of making vacancies of his numerous preferments. The evidence against him was of the flimsiest; the most serious charge was that, when a tenant had been unable to pay rent on account of the Inquisition, he had petulantly wished it at the devil. At a later period he would have had a chance to purge the evidence by the water-torture, but this was not permitted him; he was hurried to the stake as a pertinacious negativo, leaving his spoils to those who could grasp them.[21]

It was a well-accepted maxim of the civil law that torture should not be employed when the penalty of the crime charged was less severe than the infliction of torture—an equation of suffering which afforded to the doctors ample opportunity of defining the unknown quantity. This was fully accepted by the Inquisition and we are told that torture is not indicated for propositions merely offensive, rash, scandalous or blasphemous, or for the assertion that simple fornication is not a mortal sin, or for heretical blasphemy, or sorcery, or for propositions arising from ignorance, or for bigamy or solicitation in the confessional, or for lying under excommunication for a year, or for other matters which infer only light suspicion of heresy, even though for some of these offences the punishment was scourging and the galleys. Torture is freely alluded to as an irreparable injury the use of which would be unjustifiable in such matters.[22]

CONDITIONS

This, however, was, like everything else in this nebulous region, open to considerable laxity in application. When Francisco de Tornamira, a boy of eighteen and page of the Duke of Pastrana, was tried in 1592, on the charge of having said that Jews and Moors could be saved if they had faith in their respective beliefs, he denied and was tortured till he confessed, and then the triviality of his offence was admitted by subjecting him only to abjuration de levi, to hearing a mass as a penitent in the audience-chamber, and to a reprimand. The same tribunal in 1579, tried Stefano Grillen, an Italian, who, in a discussion with some chance fellow-travellers, maintained that the miracles at the shrines of Our Lady of Atocha and of la Caridad were wrought by the Virgin herself and not by her images. He freely confessed but was tortured—apparently on intention—and was dismissed with the same trivial punishment as Tornamira.[23] Even more suggestive is the case of Juan Pereira, a boy of fifteen, tried, in 1646, for Judaism at Valladolid. The proceedings were dilatory and he gradually became demented; nothing could be done with him and opinions were divided as to the reality of his insanity. The Suprema was applied to and sagely ordered torture to find out. It was administered, April 22, 1648, but the method of diagnosis was not as successful as its ingenuity deserved and, in August, he was sent to a hospital for six months, with instructions to observe him carefully. As his name after this disappears from the records, he probably died in the hospital.[24] It is evident that the Inquisition did not take to heart the warning issued by the Suprema, in 1533, that torture was a very delicate matter.[25]

When we come to inquire as to the character of evidence requiring torture for its elucidation, we find how illusory were all the attempts of the legists to lay down absolute rules, and how it all ended in leaving the matter to the discretion of the tribunal. As confession, though desired, was not essential to conviction, the negativo who was convicted on sufficient evidence was not to be tortured, but was to be relaxed. Even this rule, however, could be set aside at the caprice of the judge, though he was warned, in such cases, to put on record a protest that he did not direct the torture against the matters that had been proved, for the very good reason that endurance of torture might purge them and nullify the proof.[26] It was impossible to reduce to a logical formula that which in its essence was illogical, or to frame an accurate definition of evidence that was insufficient for conviction yet sufficient for torture. It was easy to say that semiplena evidence suffices, but what was semiplena? One authority will tell us that a single witness, even an accomplice, justifies torture, another that three accomplice witnesses are requisite. One impartial and unexceptionable witness, again, is sometimes held to require public fame as an adjuvant, but the records are full of cases in which torture was employed on the unsupported testimony of a single witness. The weight of other more or less confirmatory evidence was also keenly debated, without reaching substantial agreement—whether flight before arrest, or breaking gaol, or vacillation and equivocation when examined, or even pallor, was sufficient justification.[27] It is not surprising, therefore, that, as a practical result, we are told that all these questions must be left to the discretion of the judge, to be decided in each individual case.[28] Under such conditions it would be useless to expect consistency of practice in all tribunals and at all periods. We have seen above that cases were sometimes suspended because evidence had not been ratified, yet the Toledo tribunal, in 1584, tortured Lope el Gordo for that very reason, because the chief witness against him had not ratified his testimony, and it is satisfactory to add that Lope endured the torments and thus earned suspension of his case.[29]

The diminuto, whose confession did not cover all the adverse evidence, was, according to rule, to be tortured in order to account for the deficiency. If he endured without further admission, he was to be punished on the basis of what he had confessed, but if he did not thus purge the evidence, he was to be sent to the galleys. This was sometimes done in mere surplusage, apparently to gratify the curiosity of the tribunal, as in the Toledo case of Antonio de Andrada, in 1585, who confessed what was amply sufficient for his punishment, but, as there were some omissions, was tortured to elucidate them. In the seventeenth century, however, we are assured that there was much caution used in torturing diminutos, and that it was not done unless the omitted matters were such as to call for relaxation. If they concerned accomplices, however, whom the culprit was suspected of shielding, he was tortured in caput alienum. Retraction or vacillation of confession necessarily required torture to reconcile the contradiction; this occurred chiefly with timid persons, frightened by the demand of the fiscal for torture, and thus led to make admissions which they subsequently recalled, thus bringing upon themselves what they had sought to avoid.[30] The question of intention, in the performance of acts in themselves indifferent, was, as we have seen, the frequent occasion of torture, as there was no other means known to the jurisprudence of the period, which was bent on ascertaining the secrets of the offender’s mind.

WITNESSES

Yet it is possible that in some cases, when torture appears to be pure surplusage, there may have been the kindly intention of contributing to the salvation of the sufferer, by inducing or confirming his conversion; for habitual persecution for the greater glory of God induced a state of mind precluding all rational intellectual processes, where the faith was concerned. Thus Rojas tells us that there should be no hesitation in the use of torture, when the salvation of the culprit’s soul was involved, so that he might be reconciled to the Church and undergo penance through which he might be saved.[31] This reasoning was urged in the case of Réné Perrault, in 1624, by some of the consultores of the tribunal of Toledo. His crime of maltreating the Host was public and unquestionable, but he had varied in his statements as to his faith; the consulta de fe was unanimous in ordering torture to discover possible accomplices, but some of the members desired a special additional torture in order to confirm him in the faith and save his soul.[32]

That witnesses should be tortured, in order to obtain or confirm their testimony, is an abuse which, repulsive as it may seem to us, has been, with more or less disguise, a practice wherever torture has been used. It is true that the Roman law prohibited that one who had admitted his own guilt should be examined as to that of another, and this principle, adopted in the False Decretals, became a part of the early canon law.[33] The Inquisition, however, regarded the conviction of a heretic as only the preliminary to forcing him to denounce his associates; the earliest papal utterance, in 1252, authorizing its use of torture, prescribed the employment of this means to discover accomplices and finally Paul IV and Pius V decreed that all who were convicted and confessed should, at the discretion of the inquisitors, be tortured for this purpose.[34] The question préalable or définitive, in which the convict was tortured to make him reveal his associates, became, through the influence of the Inquisition, a part of the criminal jurisprudence of all lands in which torture was employed. It was, in reality, the torture of witnesses, for the criminal’s fate had been decided, and he was thus used only to give testimony against others.

The Spanish Inquisition was, therefore, only following a general practice when it tortured, in caput alienum, those who had confessed their guilt. No confession was accepted as complete unless it revealed the names of those whom the penitent knew to be guilty of heretical acts, if there was reason to suspect that he was not fully discharging his conscience in this respect, torture was the natural resort. Even the impenitent or the relapsed, who was doomed to relaxation, was thus to be tortured and was to be given clearly to understand that it was as a witness and not as a party, and that his endurance of torture would not save him from the stake. The Instructions of 1561, however, warn inquisitors that in these cases much consideration should be exercised and torture in caput alienum was rather the exception in Spain, than the rule as in Rome.[35] In the case of the negativo, against whom conclusive evidence was had, and who thus was to be condemned without torture, the device of torturing him against his presumable accomplices afforded an opportunity of endeavoring to secure his own confession and conversion. We have seen this fail, in 1596, in the Mexican case of Manuel Diaz, nor was it more successful in Lima, in 1639, with Enrique de Paz y Mello, although the final outcome was different. He persistently denied through five successive publications of evidence, as testimony against him accumulated in the trials of his associates. He was sentenced to relaxation and torture in caput alienum; it was administered with great severity without overcoming his fortitude, and he persisted through five other publications as fresh evidence was gathered. Yet at midnight before the auto de fe, in which he was to be burnt, he weakened. He confessed as to himself and others and his sentence was modified to reconciliation and the galleys, while good use was made of his revelations against thirty of his accomplices.[36]

NO EXEMPTIONS

The torture of witnesses who were not themselves under trial was permitted when they varied or retracted, or so contradicted other witnesses that it was deemed necessary thus to ascertain the truth; but whether clerical witnesses could be so treated was a subject of debate. As a rule torture in such cases was directed to be moderate, neither light nor excessive, but when testimony was revoked it could be repeated up to three inflictions.[37] As we have seen above (Vol. II, p. 537) slaves testifying in the cases of their masters could always be tortured if necessary to confirm their evidence. In the prosecution of Juan de la Caballería, in 1488, as accessory to the murder of San Pedro Arbués, his slave-girl Lucía gave compromising evidence which she was persuaded to retract, with the result that she was twice tortured and confirmed it.[38]

Like majestas, in heresy there were no privileged classes exempt from torture. Nobles were subject to it and so were ecclesiastics of all ranks, but the latter were to be tortured less severely than laymen, unless the case was very grave, and they were entitled to a clerical torturer if one could be found to perform the office. As in their arrest, so in torture the sentence, by a carta acordada of 1633, had to be submitted to the Suprema for confirmation.[39]

As regards age, there seems to have been none that conferred exemption. Llorente, indeed, in describing a case in which a woman of ninety was tortured at Cuenca, says that this was contrary to the orders of the Suprema which prescribed that the aged should only be placed in conspectu tormentorum,[40] but I have never met with such a rule. In 1540 the Suprema ordered that consideration should be given to the quality and age of the accused and, if advisable, the torture should be very moderate, while the Instructions of 1561, which are very full, impose no limit of age and leave everything to the discretion of the tribunal.[41] Cases are by no means infrequent in which age combined with infirmity is given as a reason for omitting torture or inflicting it with moderation, but age alone offered no exemption. At a Toledo auto de fe we find Isabel Canese, aged seventy-eight, who promptly confessed before the torture had proceeded very far, and Isabel de Jaen, aged eighty who, at the fifth turn of the cords fainted and was revived with difficulty.[42] In 1607, at Valencia, Jaime Chuleyla, aged seventy-six, after confessing certain matters, was accused by a new witness of being an alfaquí; this he denied and was duly tortured.[43]

Not much more respect was paid to youth. In 1607, at Valencia, Isabel Madalena, a girl of thirteen, who was vaguely accused of Moorish practices, was tortured, overcame the torture and was penanced with a hundred lashes. In the same year that tribunal showed more consideration for Joan de Heredia, a boy of ten or eleven, whom a lying witness accused of going to a house where Moorish doctrines were taught. On his steadfast denial, he was sentenced to be placed in conspectu tormentorum, which was carried out in spite of an appeal by his procurator, but he persisted in asserting his innocence and the case was suspended.[44] Mental incapacity, short of insanity, was not often allowed exemption and it is creditable to the Valencia tribunal that when, about 1710, the Suprema ordered the torture of Joseph Felix, for intention with regard to certain propositions, it remonstrated and represented that he was too ignorant to comprehend the object of the torture.[45]

CONDITION OF PATIENT

It was a universal law that torture should not endanger life or limb and, although this was often disregarded when the work was under way, it called for a certain amount of preliminary caution to see that the patient was in condition promising endurance—caution admitted in theory but not always observed in practice. When there was doubt, the physician of the Inquisition was sometimes called in, as in the case of Rodrigo Pérez, at Toledo, in 1600, who was sick and weak, and the medical certificate that torture would endanger health and life sufficed to save him, but the Suprema was not so considerate when, in 1636, it ordered the Valencia tribunal to torture Joseph Pujal before transferring him to the hospital, as was done afterwards on account of his illness.[46] Pregnancy has always been deemed a sufficient reason for at least postponing the infliction, but the Madrid tribunal, in instructions of 1690, only makes the concession of placing pregnant women on a seat, in place of binding them on the rack, while applying the exceedingly severe torture of the garrote—sharp cords, two on each arm and two on each leg, bound around the limb and twisted with a short lever.[47] Hernia was regarded, at least in the earlier time, as precluding torture, and I have met with several cases in which it served to exempt the patient but, in 1662, the official instructions of the Suprema order that no exceptions be made on that account, save the omission of the trampazo vigoroso, which causes downward strain; in the other tortures a good strong truss suffices to avert danger and it should always be kept on hand in readiness for such subjects.[48] In accordance with this the Madrid tribunal in 1690, orders for hernia cases the use of the seat provided for pregnant women. As regards women who were suckling, there seems to have been no established rule. In 1575, when the Valencia tribunal proposed to torture María Gilo, the physician who was called in reported that it would expose the child to imminent risk and the purpose was abandoned. In 1608, however, at Toledo, when the same question arose in the case of Luisa de Narvaez, the consulta voted in discordia and the Suprema ordered her to be tortured.[49]

Besides these generalities, there were occasional special cases in which torture was abandoned in consequence of the condition of the patient—heart disease, excessive debility, repeated faintings during the administration and other causes. The physician and the surgeon were always called in, when the prisoner was stripped, to examine him and they were kept at hand to be summoned in case of accident. The tribunals seem to have been more tender-hearted than the Suprema which, in its instructions of 1662, reproved inquisitors who avoid sentencing to torture on account of weakness or of a broken arm. This, it says, is not proper, because it forfeits the opportunity of obtaining confession in the various preliminaries of reading the sentence, carrying to the torture-chamber, stripping him and tying him to the trestle; besides, after commencing, the torture is always to be stopped when the physician so orders.[50] There was another salutary precaution—that there should be a proper interval between the last meal and the torture. About 1560, Inquisitor Cervantes says that the patient is not to have food or drink on the evening before or on the morning of the infliction and, in 1722, a writer specifies eight hours for the preliminary fasting.[51]

THE EXECUTIONER

In the administration of torture, all the inquisitors and the episcopal representative were required to be present, with a notary or secretary to record the proceedings. No one else save the executioner was allowed to be present, except when the physician or surgeon was called in. In the earlier period, there was some trouble in providing an official to perform the repulsive work. An effort seems to have been made to compel the minor employees to do it but with doubtful success. Ferdinand, in a letter of July 22, 1486, to Torquemada, complains that the inquisitors of Saragossa had employed a torturer because the messengers had refused to do the work, and he suggests that a messenger be discharged and the torturer serve in his place without increase of salary; if this cannot be done the salary should be reduced. No salaried torturer appears in the pay-rolls; the duties were not constant and doubtless when wanted proper functionaries were called in and paid—but there is suggestiveness in a letter of Ferdinand, in 1498, ordering the restoration of a certain Pedro de Moros, who had been dropped, to serve as messenger and “for such other duties as the inquisitors might order” at five hundred sueldos a year.[52] At one time the alcaide of the prison seems to have been the official torturer for, in 1536, the Suprema writes to the inquisitors of Navarre that, if their alcaide is not skilled in the business, they must find some one who is, and not work the implements themselves, as they seem to have done, for it is not befitting the dignity of their persons or office.[53] In 1587, at Valencia, we hear that the messenger and portero served as assistants and the Suprema ordered the work to be entrusted to a confidential familiar.[54] Eventually however the tribunals employed the public executioner of the town, who was skilled in his vocation. When, in 1646, at Valladolid, Isabel López was ordered to be tortured on November 23d, the alcaide reported that the public functionary was absent and the time of his return was uncertain; the torture was necessarily postponed and, on the 27th, Isabel took it into her head to confess and thus escaped the infliction.[55] In Madrid, from March to August, 1681, Alonso de Alcalá, the city executioner, was paid by the tribunal forty-four ducats, for eleven torturings, at four ducats apiece.[56] It seems strange that objection should be made to the torturer being disguised but, in 1524, the Suprema forbade him to wear a mask or to be wrapped in a sheet; subsequently he was permitted to wear a hood and to change his garments and, in the seventeenth century, a mask and other disguise were permissible, if it were thought best that he should not be recognized.[57]

At every stage in the preliminaries, after reading the sentence, taking the prisoner down to the torture-chamber, calling in the executioner, stripping the prisoner and tying him to the trestle, there was a pause in which he was solemnly adjured to tell the truth for the love of God, as the inquisitors did not desire to see him suffer.[58] The exposure of stripping was not a mere wanton aggravation but was necessary, for the cords around the thighs and arms, the belt at the waist with cords passing from it over the shoulders from front to back, required access to every portion of the body and, at the end of the torture, there was little of the surface that had not had its due share of agony. Women as well as men were subjected to this, the slight concession to decency being the zaragüelles or paños de la vergüenza, a kind of abbreviated bathing-trunks, but the denudation seems to have been complete before these were put on.[59] The patient was admonished not to tell falsehoods about himself or others and, during the torture, the only words to be addressed to him were “Tell the truth.” No questions were to be put and no names mentioned to him, for the reason, as we are told, that the sufferers in their agonies were ready to say anything that was in any way suggested, and to bear false-witness against themselves and others. The executioner was not to speak to the patient, or make faces at him, or threaten him, and the inquisitors should see that he so arranged the cords and other devices as not to cause permanent crippling or breaking of the bones. The work was to proceed slowly with due intervals between each turn of the garrotes or hoist in the garrucha, or otherwise the effect was lost, and the patient was apt to overcome the torture.

It was a universal rule that torture could be applied only once, unless new evidence supervened which required purging, but this restriction was easily evaded. Though torture could not be repeated, it could be continued and, when it was over, the patient was told that the inquisitors were not satisfied, but were obliged to suspend it for the present, and that it would be resumed at another time, if he did not tell the whole truth. Thus it could be repeated from time to time as often as the consulta de fe might deem expedient.[60] The secretary faithfully recorded all that passed, even to the shrieks of the victim, his despairing ejaculations and his piteous appeals for mercy or to be put to death, nor would it be easy to conceive anything more fitted to excite the deepest compassion than these cold-blooded, matter-of-fact reports.

As for the varieties of torture currently employed, it must be borne in mind that the Inquisition largely depended on the public executioners, and its methods thus were necessarily identical with those of the secular courts; while even when its own officials performed the duty, they would naturally follow the customary routine. The Inquisition thus had no special refinements of torture and indeed, so far as I have had opportunity of investigation, it confined itself to a few methods out of the abundant repertory of the public functionaries.

VARIETIES

In the earlier period only two tortures were generally in vogue—the garrucha or pulleys and the water-torture. These are the only ones alluded to by Pablo García and both of them were old and well-established forms.[61] The former, known in Italy as the strappado, consisted in tying the patient’s hands behind his back and then, with a cord around his wrists, hoisting him from the floor, with or without weights to his feet, keeping him suspended as long as was desired and perhaps occasionally letting him fall a short distance with a jerk. About 1620 a writer prescribes that the elevating movement should be slow, for if it is rapid the pain is not lasting; for a time the patient should be kept at tiptoe, so that his feet scarce touch the floor; when hoisted he should be held there while the psalm Miserere is thrice repeated slowly in silence, and he is to be repeatedly admonished to tell the truth. If this fail he is to be lowered, one of the weights is to be attached to his feet and he is to be hoisted for the space of two Misereres, the process being repeated with increasing weights as often and as long as may be judged expedient.[62]

The water-torture was more complicated. The patient was placed on an escalera or potro—a kind of trestle, with sharp-edged rungs across it like a ladder. It slanted so that the head was lower than the feet and, at the lower end was a depression in which the head sank, while an iron band around the forehead or throat kept it immovable. Sharp cords, called cordeles, which cut into the flesh, attached the arms and legs to the side of the trestle and others, known as garrotes, from sticks thrust in them and twisted around like a tourniquet till the cords cut more or less deeply into the flesh, were twined around the upper and lower arms, the thighs and the calves; a bostezo, or iron prong, distended the mouth, a toca, or strip of linen, was thrust down the throat to conduct water trickling slowly from a jarra or jar, holding usually a little more than a quart. The patient strangled and gasped and suffocated and, at intervals, the toca was withdrawn and he was adjured to tell the truth. The severity of the infliction was measured by the number of jars consumed, sometimes reaching to six or eight. In 1490, in the case of the priest Diego García, a single quart satisfied the inquisitors and he was acquitted.[63] In the Mexican case of Manuel Díaz, in 1596, the cordeles were applied; then seven garrotes were twisted around arms and legs, the toca was thrust down his throat and twelve jarras of a pint each were allowed to drip through it, the toca being drawn up four times during the operation. In the Toledo case of Marí Rodríguez, in 1592, the operation was divided, the cordeles being applied while she was seated on the banquillo, and were given eight turns; she was then transferred to the trestle, and the garrotes were used, followed by the water; at the second jarra she vomited profusely; she was untied and fell to the floor. The executioner lifted her up and put on her chemise; she was told that if she would not tell the truth the torture would be continued; she protested that she had told the truth and it was suspended. For nine months she was left in her cell, then the consulta de fe voted to suspend the case and she was told to be gone in God’s name.[64]

It was probably not long after this that these forms of torture gradually fell into disuse and were replaced by others which apparently were regarded as more merciful. In 1646 the Suprema applied to the tribunal of Córdova for information concerning the garrucha and silla and for a description of the trampa and trampazo which it used, with an estimate of their severity. The tribunal replied that the silla had been abandoned because it could scarce be called a torture and the garrucha on account of the danger of causing dislocations. For more than thirty years the tribunal, as well as the secular courts, had discontinued its use as also the brazier of coals, heated plates of metal, hot bricks, the toca with seven pints of water, the depiñoncillo, escarabajo, tablillas, sueño and others. The methods in use were the cordeles and garrotes, of which there were three kinds, the vuelta de trampa, the mancuerda and stretching the accused in the potro or rack.

VARIETIES

The letter proceeds to describe at great length and in much detail these somewhat complicated processes. In abandoning the pulleys and the water-jar, the patient gained little. He was adjusted for torment by a belt or girdle with which he was swung from the ground; his arms were tied together across his breast and were attached by cords to rings in the wall. For the trampa or trampazo the ladder in the potro had one of its rungs removed so as to enable the legs to pass through; another bar with a sharp edge was set below it and through this narrow opening the legs were forcibly pulled by means of a cord fastened around the toes with a turn around the ankle. Each vuelta, or turn given to the cord, gained about three inches; five vueltas were reckoned a most rigorous torture, and three were the ordinary practice, even with the most robust. Leaving him stretched in this position, the next step was the mancuerda, in which a cord was passed around the arms, which the executioner wound around himself and threw himself backward, casting his whole weight and pushing with his foot against the potro. The cord, we are told, would cut through skin and muscle to the bone, while the body of the patient was stretched as in a rack, between it and the cords at the feet. The belt or girdle at the waist, subjected to these alternate forces was forced back and forth and contributed further to the suffering. This was repeated six or eight times with the mancuerda, on different parts of the arms, and the patients usually fainted, especially if they were women.

After this the potro came in play. The patient was released from the trampa and mancuerda and placed on the eleven sharp rungs of the potro, his ankles rigidly tied to the sides and his head sinking into a depression where it was held immovable by a cord across the forehead. The belt was loosened so that it would slip around. Three cords were passed around each upper arm, the ends being carried into rings on the sides of the potro and furnished with garrotes or sticks to twist them tight; two similar ones were put on each thigh and one on each calf, making twelve in all. The ends were carried to a maestra garrote by which the executioner could control all at once. These worked not only by compression but by travelling around the limbs, carrying away skin and flesh. Each half round was reckoned a vuelta or turn, six or seven of which was the maximum, but it was usual not to exceed five, even with strong men. Formerly the same was done with the cord around the forehead, but this was abandoned as it was apt to start the eyes from their sockets. All this, the Cordova tribunal concludes, is very violent, but it is less so and less dangerous than the abandoned methods.

These remained practically the tortures in use. In 1662 the Suprema, in ordering the tribunal of Galicia to “continue” the torture of Antonio Méndez, called upon it to report as to its manner of administering torture. Its answer of May 13th shows that it was using the mancuerda and potro, though after a somewhat primitive fashion. To this, by order of the Suprema, Gonzalo Bravo replied, May 22d with elaborate instructions, especially as to the trampazo, indicating that substantially the methods described by Córdova were recognized officially. Galicia appears to have puzzled over this until September 19th, when it apologized for its lack of experience and asked for detailed plans and drawings of the form of potro required. It is fairly presumable from all this that thenceforward these new methods were adopted in all the tribunals.[65]

SEVERITY

There was and could be no absolute limitation on the severity of torture. The Instructions of 1561 say that the law recognizes it as uncertain and dangerous in view of the difference in bodily and mental strength among men, wherefore no certain rule can be given, but it must be left to the discretion of judges, to be governed by law, reason and conscience.[66] All that Gonzalo Bravo can say, in the Instructions of 1662, is that its proper regulation determines the just decision of cases, and the verification of truth; the discretion and prudence of the judges must look to this, tempered by the customary compassion of the Holy Office, in such way that it shall neither exceed nor fall short. How this discretion was exercised depended wholly on the temper of the tribunal. One authority tells us that torture should never be prolonged more than half an hour, but the cases are numerous in which it lasted for two and even three hours. In that of Antonio López, at Valladolid, in 1648, it commenced at eight o’clock and continued until eleven, leaving him with a crippled arm; in a fortnight he endeavored to strangle himself, and he died within a month.[67] Such cases were by no means rare. Gabriel Rodríguez, at Valencia, about 1710, was tortured thrice and condemned to the galleys, but this was commuted on finding that he was crippled “por la violencia de la tortura.”[68] Nor was death by any means unknown. In 1623, Diego Enríquez, at Valladolid, was tortured December 13th. In the process an “accident” occurred and he was carried to his cell. On the 15th the physician reported that he should be removed to a hospital, which was done with the greatest secrecy and he died there. There is something hideously suggestive in such a matter of fact record as that of Blanca Rodríguez Matos, at Valladolid, which simply says that she was voted to torture, May 21, 1655, and it having been executed she died the same day; the case was continued against her fame and memory and, in due course, was suspended, November 19th.[69]

The very large number of cases recorded in which the accused overcame the torture without confession would argue that it was frequently light. This is doubtless true to a great extent, but the surprising endurance sometimes displayed shows that this was not always the case. Thus Tomás de Leon, at Valladolid, November 5, 1638, was subjected to all the successive varieties and overcame them, although at the end it was found that his left arm was broken. So, in 1643, in the same tribunal, Engracia Rodríguez, a woman sixty years of age, had a toe wrenched off while in the balestilla. Nevertheless the torture proceeded until, in the first turn of the mancuerda, an arm was broken. It then was stopped without having extorted a confession, but her fortitude availed her little, for fresh evidence supervened against her and, some ten months later, she confessed to Jewish practices. Another of the same group, Florencia de Leon, endured the balestilla, three turns of the mancuerda and the potro without confessing, but she did not escape without reconciliation and prison.[70]

The process and its effects on the patient can best be understood from the passionless business-like reports of the secretary, in which the incidents are recorded to enable the consulta de fe to vote intelligently. They are of various degrees of horror and I select one which omits the screams and cries of the victim that are usually set forth. It is a very moderate case of water-torture, carried only to a single jarra, administered in 1568 by the tribunal of Toledo to Elvira del Campo, accused of not eating pork and of putting on clean linen on Saturdays. She admitted the acts but denied heretical intent and was tortured on intention. On April 6th she was brought before the inquisitors and episcopal vicar and, after some preliminaries, was told that it was determined to torture her, and in view of this peril she should tell the truth, to which she replied that she had done so. The sentence of torture was then read, when she fell on her knees and begged to know what they wanted her to say. The report proceeds:

REPORTS

She was carried to the torture-chamber and told to tell the truth, when she said that she had nothing to say. She was ordered to be stripped and again admonished, but was silent. When stripped, she said “Señores, I have done all that is said of me and I bear false-witness against myself, for I do not want to see myself in such trouble; please God, I have done nothing.” She was told not to bring false testimony against herself but to tell the truth. The tying of the arms was commenced; she said “I have told the truth; what have I to tell?” She was told to tell the truth and replied “I have told the truth and have nothing to tell.” One cord was applied to the arms and twisted and she was admonished to tell the truth but said she had nothing to tell. Then she screamed and said “I have done all they say.” Told to tell in detail what she had done she replied “I have already told the truth.” Then she screamed and said “Tell me what you want for I don’t know what to say.” She was told to tell what she had done, for she was tortured because she had not done so, and another turn of the cord was ordered. She cried “Loosen me, Señores and tell me what I have to say: I do not know what I have done, O Lord have mercy on me, a sinner!” Another turn was given and she said “Loosen me a little that I may remember what I have to tell; I don’t know what I have done; I did not eat pork for it made me sick; I have done everything; loosen me and I will tell the truth.” Another turn of the cord was ordered, when she said “Loosen me and I will tell the truth; I don’t know what I have to tell—loosen me for the sake of God—tell me what I have to say—I did it, I did it—they hurt me Señor—loosen me, loosen me and I will tell it.” She was told to tell it and said “I don’t know what I have to tell—Señor I did it—I have nothing to tell—Oh my arms! release me and I will tell it.” She was asked to tell what she did and said “I don’t know, I did not eat because I did not wish to.” She was asked why she did not wish to and replied “Ay! loosen me, loosen me—take me from here and I will tell it when I am taken away—I say that I did not eat it.” She was told to speak and said “I did not eat it, I don’t know why.” Another turn was ordered and she said “Señor I did not eat it because I did not wish to—release me and I will tell it.” She was told to tell what she had done contrary to our holy Catholic faith. She said “Take me from here and tell me what I have to say—they hurt me—Oh my arms, my arms!” which she repeated many times and went on “I don’t remember—tell me what I have to say—O wretched me!—I will tell all that is wanted, Señores—they are breaking my arms—loosen me a little—I did everything that is said of me.” She was told to tell in detail truly what she did. She said “What am I wanted to tell? I did everything—loosen me for I don’t remember what I have to tell—don’t you see what a weak woman I am?—Oh! Oh! my arms are breaking.” More turns were ordered and as they were given she cried “Oh! Oh! loosen me for I don’t know what I have to say—Oh my arms!—I don’t know what I have to say—if I did I would tell it.” The cords were ordered to be tightened when she said “Señores have you no pity on a sinful woman?” She was told, yes, if she would tell the truth. She said, “Señor tell me, tell me it.” The cords were tightened again, and she said “I have already said that I did it.” She was ordered to tell it in detail, to which she said “I don’t know how to tell it señor, I don’t know.” Then the cords were separated and counted, and there were sixteen turns, and in giving the last turn the cord broke.

She was then ordered to be placed on the potro. She said “Señores, why will you not tell me what I have to say? Señor, put me on the ground—have I not said that I did it all?” She was told to tell it. She said “I don’t remember—take me away—I did what the witnesses say.” She was told to tell in detail what the witnesses said. She said “Señor, as I have told you, I do not know for certain. I have said that I did all that the witnesses say. Señores release me, for I do not remember it.” She was told to tell it. She said “I do not know it. Oh! Oh! they are tearing me to pieces—I have said that I did it—let me go.” She was told to tell it. She said “Señores, it does not help me to say that I did it and I have admitted that what I have done has brought me to this suffering—Señor, you know the truth—Señores, for God’s sake have mercy on me. Oh Señor, take these things from my arms—Señor release me, they are killing me.” She was tied on the potro with the cords, she was admonished to tell the truth and the garrotes were ordered to be tightened. She said “Señor do you not see how these people are killing me? Señor, I did it—for God’s sake let me go.” She was told to tell it. She said “Señor, remind me of what I did not know—Señores have mercy upon me—let me go for God’s sake—they have no pity on me—I did it—take me from here and I will remember what I cannot here.” She was told to tell the truth, or the cords would be tightened. She said “Remind me of what I have to say for I don’t know it—I said that I did not want to eat it—I know only that I did not want to eat it,” and this she repeated many times. She was told to tell why she did not want to eat it. She said, “For the reason that the witnesses say—I don’t know how to tell it—miserable that I am that I don’t know how to tell it—I say I did it and my God how can I tell it?” Then she said that, as she did not do it, how could she tell it—“They will not listen to me—these people want to kill me—release me and I will tell the truth.” She was again admonished to tell the truth. She said, “I did it, I don’t know how I did it—I did it for what the witnesses say—let me go—I have lost my senses and I don’t know how to tell it—loosen me and I will tell the truth.” Then she said “Señor, I did it, I don’t know how I have to tell it, but I tell it as the witnesses say—I wish to tell it—take me from here—Señor as the witnesses say, so I say and confess it.” She was told to declare it. She said “I don’t know how to say it—I have no memory—Lord, you are witness that if I knew how to say anything else I would say it. I know nothing more to say than that I did it and God knows it.” She said many times, “Señores, Señores, nothing helps me. You, Lord, hear that I tell the truth and can say no more—they are tearing out my soul—order them to loosen me.” Then she said, “I do not say that I did it—I said no more.” Then she said, “Señor, I did it to observe that Law.” She was asked what Law. She said, “The Law that the witnesses say—I declare it all Señor, and don’t remember what Law it was—O, wretched was the mother that bore me.” She was asked what was the Law she meant and what was the Law that she said the witnesses say. This was asked repeatedly, but she was silent and at last said that she did not know. She was told to tell the truth or the garrotes would be tightened but she did not answer. Another turn was ordered on the garrotes and she was admonished to say what Law it was. She said “If I knew what to say I would say it. Oh Señor, I don’t know what I have to say—Oh! Oh! they are killing me—if they would tell me what—Oh, Señores! Oh, my heart!” Then she asked why they wished her to tell what she could not tell and cried repeatedly “O, miserable me!” Then she said “Lord bear witness that they are killing me without my being able to confess.” She was told that if she wished to tell the truth before the water was poured she should do so and discharge her conscience. She said that she could not speak and that she was a sinner. Then the linen toca was placed [in her throat] and she said “Take it away, I am strangling and am sick in the stomach.” A jar of water was then poured down, after which she was told to tell the truth. She clamored for confession, saying that she was dying. She was told that the torture would be continued till she told the truth and was admonished to tell it, but though she was questioned repeatedly she remained silent. Then the inquisitor, seeing her exhausted by the torture, ordered it to be suspended.

It is scarce worth while to continue this pitiful detail. Four days were allowed to elapse, for experience showed that an interval, by stiffening the limbs, rendered repetition more painful. She was again brought to the torture-chamber but she broke down when stripped and piteously begged to have her nakedness covered. The interrogatory went on, when her replies under torture were more rambling and incoherent than before, but her limit of endurance was reached and the inquisitors finally had the satisfaction of eliciting a confession of Judaism and a prayer for mercy and penance.[71]

RATIFICATION OF CONFESSION

It is impossible to read these melancholy records without amazement that the incoherent and contradictory admissions through which the victim, in his increasing agonies, sought to devise some statement in satisfaction of the monotonous command to tell the truth, should have been regarded by statesmen and lawgivers as possessed of intrinsic value. The result was a test of endurance and not of veracity. In one case we find a man of such fibres and nerves that all the efforts of the torturer fail to elicit aught but denial—the cords may rasp through the flesh to the bone and limbs be wrenched to the breaking without affecting his constancy. In another, when a few turns of the garrote have twisted a single cord into his arm—or even at the mere aspect of the torture-chamber, with its grimly suggestive machinery—he will yield and confess all that is wanted as to himself and all the comrades whose names he can recall in the dizziness of his suffering. Yet, with full knowledge of this, for centuries the secular and ecclesiastical courts of the greater part of Christendom persisted in the use of a system which, in the name of justice, perpetrated an infinite series of atrocities.

Yet, as though still more effectually to deprive the system of all excuse, the confession obtained at such cost was practically admitted to be in itself worthless. To legalize it, a ratification was required, after an interval of at least twenty-four hours, to be freely made, without threats and apart from the torture-chamber. This was essential in all jurisdictions, and the formula in the Inquisition was to bring the prisoner into the audience-chamber, where his confession was read to him as it had been written down. He was asked whether it was true or whether he had anything to add or to omit and, under his oath, he was expected to declare that it was properly recorded, that he had no change to make and that he ratified it, not through fear of torture, or from any other cause, but solely because it was the truth. Such ratification was required even when the confession was made on hearing the sentence of torture read or when placed in conspectu tormentorum.[72] This was customarily done on the afternoon of the next day, to allow the full twenty-four hours to expire, but there was sometimes a longer interval. Thus, in the case of Catalina Hernández, at Toledo, who confessed on being stripped, July 13, 1541, it was not until the 27th that her ratification was taken, the inquisitors explaining that press of business had prevented it earlier.[73]

The declaration in the ratification, that it was not made through fear of torture was a falsehood, for, in all jurisdictions, a retraction of the confession called for a repetition of torment, and in fact we sometimes find that when the confession was made the prisoner was warned not to retract for, if he did so, the torture would be “continued.”[74] This was possibly to evade a singularly humane provision in the Instructions of 1484, to the effect that, if the confession is ratified, the accused is to be duly punished, but if he retracts, in view of the infamy resulting from the trial, he is to abjure publicly the heresy of which he is suspect and be subjected to such penance as the inquisitors may compassionately assign. The mercy of this, however, is considerably modified by a succeeding clause that it is not to deprive them of the right to repeat the torture in cases where by law they can and ought to do so.[75] Still, it was probably the first portion of the provision that guided the Toledo tribunal, in 1528, in the case of Diego de Uceda, on trial for Lutheranism. At the sight of the torture-chamber he broke down and admitted all that the witnesses had testified, but could not remember what it was. As this was evidently inspired by fear, the torture went on when, at the first turn of the garrote, he inculpated himself so eagerly that he was warned not to bear false-witness against himself. He declared it to be the truth and was untied. Before he was called upon to ratify, he asked for an audience in which he ascribed his confession to fear and declared himself ready to die for the faith of the Church, and a week later he ratified this revocation, saying that he was out of his senses under the torture. He was not tortured again and his sentence, some months later, was in accordance with the Instructions of 1484—to appear in an auto de fe, to abjure de vehementi and to be fined at the discretion of the inquisitors.[76]

REPETITION

Such cases, however, were exceptional and the regular practice was to repeat the torture, when a confession followed by another revocation, subjected the victim to a third torture.[77] Whether the process could be carried on indefinitely was a doubtful question which some legists answered in the negative on the general philosophic assumption that nature and justice abhorred infinity, but this reasoning, however, academically conclusive, was not respected in practice when a conviction was desired. There was one dissuasive from revocation, which was brought to bear when culprits gave unreasonable trouble, which was the penalty incurred by revocantes. This is illustrated, as also the troublesome questions which sometimes perplexed the tribunals, by the case of Miguel de Castro, tried for Judaism, at Valladolid, in 1644. As a negativo, he was tortured and confessed, after which he ratified, revoked and ratified again. A process was commenced against him for revoking; he was tortured again, until an arm was dislocated and he lost two fingers, during which he confessed and then revoked the confession. He would have been tortured a third time had not the physician and surgeon declared him to be unable to endure it. The Suprema ordered him to be relaxed to the secular arm, if he could not be induced to repent and return to the Church, when, under the persuasion of two calificadores, he begged for mercy and confessed as to himself and others. Finally he was sentenced to reconciliation and irremissible prison and sanbenito, with a hundred lashes as a special punishment for revocation, which was executed January 21, 1646.[78]

Some culprits, we are told, cunningly took advantage of the opportunity of retraction, by confessing at once, as soon as subjected to torture, then recanting and repeating this process indefinitely, to the no small disgust of the inquisitors. A writer of the close of the seventeenth century, who mentions this, shows that the subject was then in an indeterminate condition, by suggesting as a remedy that they should be subjected to extraordinary penalties.[79] A case at Cuenca, in 1725, in which these tactics were successful, indicates that by that time a third torture was not recognized as lawful. Dr. Diego Matheo López Zapata, as soon as the torturer was ready to begin, exclaimed that he was ready to confess, and made a detailed confession of Judaic practices followed for nearly fifty years. The next day he revoked and, when the torture was resumed, he repeated his confession, only to revoke it as before. The tribunal appears to have been powerless and contented itself with making him appear in an auto de fe as a penitent, with a sanbenito to be immediately removed, abjuration de vehementi and twenty years’ exile from Cuenca, Murcia and Madrid.[80] At an earlier period he would scarce have escaped without scourging, galleys and irremissible prison.

When torture was administered, without eliciting a confession, the logical conclusion, if torture proved anything, was that the accused was innocent. In legal phrase, he had purged the evidence and was entitled to acquittal.[81] Such, indeed, was the law, but there was a natural repugnance to being baffled, or to admit that innocence had been so cruelly persecuted, and excuses were readily found to evade the law. On such a subject there could be no definite line of practice prescribed, and the situation is reflected by the Instructions of 1561, which tell the inquisitor that, in such cases, he must consider the nature of the evidence, the degree of torture employed, and the age and disposition of the accused; if it appears that he has fully purged the evidence, he should be fully acquitted, but if it seems that he has not been sufficiently tortured he can be required to abjure either for light or vehement suspicion, or some pecuniary penalty can be imposed, although this should be done only with great consideration.[82] Thus the matter was practically left to the discretion of the tribunal, with the implied admission that, when torture proved unsuccessful, it was merely surplusage.

ENDURANCE WITHOUT CONFESSION

The authorities naturally are not wholly at one with regard to the practical applications of these principles—except that acquittal should rarely be granted and, in fact, while the records are full of cases in which torture was overcome, it is somewhat unusual to find the parties acquitted, or their cases even suspended. About 1600 a writer tells us that these cases are to be treated with some extraordinary penalty or with acquittal or suspension, according to the degree of suspicion that remains, but that Moriscos, however light the suspicion, must appear in an auto de fe and abjure de vehementi and, if there has been evidence by single witnesses, they must be sent to the galleys for three years or more; with other culprits, if the suspicion is light, there may be acquittal or suspension, but suspension is the more usual. It all depends upon the degree in which the evidence has been purged by the torture.[83] As this degree was a matter purely conjectural, inquisitorial discretion was unlimited.

The rule as to Moriscos is borne out by the Valencia auto de fe of 1607, in which there appeared sixteen who had overcome the torture, most of whom were visited with imprisonment, scourging or fines.[84] With their expulsion in 1609-10, there was no further call for discrimination, and the general practice is expressed about 1640, by an experienced inquisitor, who tells us that, when there have been several single witnesses, the accused who overcomes the torture should be subjected to some severe extraordinary punishment, such as abjuring de vehementi, with confiscation of half his property, or a heavy fine—the latter being preferable as it is more easily collected and the culprit endures it better in order to preserve his credit.[85] That this reflects the current practice would appear from a Cuenca auto de fe, June 29, 1654. Don Andrés de Fonseca had been required to abjure de vehementi, at Valladolid in 1628; the evidence of his relapse was strong, but insufficient for conviction; he endured torture without confessing; then further evidence supervened and he was again tortured with the same ill-success; he appeared in the auto as a penitent, abjured de levi, with ten years’ exile and a fine of five hundred ducats. Doña Theodora Paula had overcome the torture and had abjuration de lev, six years’ exile and a fine of three hundred ducats. Doña Isabel de Miranda had been unsuccessfully tortured and was sentenced to two years’ exile and three hundred ducats. So, after fruitless torture, Doña Isabel Henríquez had the same punishment, and Manuel Lorenzo Madureyra was sentenced to abjuration de vehementi, ten years’ exile and five hundred ducats fine.[86] It is to the credit of the Valladolid tribunal that, in 1624, it showed itself more lenient and suspended six cases in which torture proved fruitless, inflicting no punishment except six years of exile on María Pérez, who was charged with false-witness.[87]

Perhaps the frequency with which torture was overcome may be partially explained by bribery of the executioner. This was rendered difficult by the secrecy surrounding all the operations of the tribunals, yet it was possible, and the kindred of one who was arrested would naturally seek to propitiate the minister of justice in case the prisoner should fall into his hands. At a Valencia auto de fe, in 1594, there appeared ninety-six Morisco penitents of whom fifty-three had been tortured without extracting confessions.[88] It may possibly be only a coincidence that, in 1604, Luis de Jesus, the torturer of the tribunal was prosecuted for receiving money from Moriscos, but we may readily imagine that communities, living in perpetual dread of the Inquisition, might tax themselves to subsidize the executioner regularly.[89] A similar case occurs in the Córdova auto of June 13, 1723, in which appeared the executioner, Carlos Felipe, whose offence is discreetly described as fautorship of heretics and unfaithfulness in their favor, in the discharge of his office.[90]

FREQUENCY

It is a little remarkable that, although the use of torture was so frequent and must have been generally known, there appears to have been a shrinking from admitting it in the sentences publicly read in the autos de fe, which habitually recited the details of the trials—possibly attributable, in part at least, to a desire to preserve secrecy, although it is particularly marked in the early period when secrecy had not become so rigid as it was subsequently. Indeed, in the sentence of Juan González Daza, who confessed under torture in 1484, at Ciudad Real, it is mendaciously asserted that he pertinaciously denied until he learned that his accomplice, Fernando de Theba, had confessed, when he did so freely.[91] This continued as a rule, though occasionally there is less reticence. In one sentence I have found it alluded to—that of Mari Gómez, at Toledo, in 1551.[92] Sometimes there is a veiled allusion to it, as though the inquisitors could not conceal it wholly, but felt a certain shame in admitting it openly. Thus in the sentence of Elvira del Campo (see p. 24), which gives a very detailed account of the incidents of the trial, it is stated that, on using “mas diligencias,” with her she admitted the charges, and in the sentence of Doctor Zapata, in 1725, “cierta diligencia” is alluded to as having been employed.[93]

It would of course be impossible to compile statistics of the torture-chamber, or to form a reasonably accurate estimate of the number of cases in which it was employed during the career of the Inquisition. Some fragmentary data, however, can be had, as in the record of the Toledo tribunal between 1575 and 1610. During this period it tried four hundred and eleven persons for heretical offences admitting of the use of torture, and in these it was used once on one hundred and nine, and twice on eight, besides two cases in which it had to be stopped on account of the fainting of the patient, and seven in which confession was obtained before it commenced. There were also five cases in which the accused was placed in conspectu tormentorum.[94] In all, we may say that here its agency was invoked in about thirty-two per cent. of heretical prosecutions. This is probably less than the average. In a number of cases tried by the tribunal of Lima between 1635 and 1639, nearly all the accused appear to have been tortured, while the report of the tribunal of Valladolid for 1624 shows that of eleven cases of Judaism and one of Protestantism, eleven were tortured and, in 1655, every case of Judaism, nine in number, was subjected to torture.[95]

After all, numbers, however they may impress the imagination, are not supremely important. They are simply a measure of the greater or less activity of the tribunals and not of the principles involved. Whenever there was a doubt to solve, whether as to the sufficiency of the evidence, the intention of the accused, the completeness with which he had denounced his associates, or other inscrutable matter, recourse to torture was a thing of course. In not a few cases, indeed, there seems to have been an almost infantile confidence in its power as a universal solvent. About 1710, Fernando Castellon, on trial at Valencia for Judaism, claimed not to be baptized and was promptly tortured to find out, but without success.[96] In 1579 the Toledo tribunal had to deal with Anton Moreno, an aged peasant, accused of entertaining views too liberal as to salvation; torture seemed the only means of definition and, between the turns of the garrote, he was made to express his opinions as to the saving effects of death-bed repentance and the viaticum on a sinner who had been duly baptized with the water of the Holy Ghost. There was ghastly ludicrousness in the attempt, under such persuasion, to ascertain the beliefs of an untutored old man, on these subtle questions of scholastic theology, ending with the result that he was adjudged to be worthy only of abjuration de levi, with a reprimand and hearing of a mass in the audience-chamber.[97]

FEES

As the activity of the Inquisition diminished, in the latter half of the eighteenth century, the use of torture naturally decreased but, until, the suppression in 1813, the formal demand for it was preserved in the accusation presented by the fiscal. One of the early acts of Fernando VII, on his restoration in 1814, was the issue of a cédula, July 25th, addressed to all officers of justice, reciting that, in 1798, when the Royal Council learned that, in the courts of Madrid, the accused were subjected to the severest pressure to extort confessions, it investigated the matter and found that thumb-screws and other methods more or less rigorous were employed, and that this was without authority of law: consequently on February 5, 1803, the discontinuance of these was ordered, except fetters to the feet, and at the same time inquiries made of all courts in the kingdom showed that various kinds of compulsion were used whereby the innocent were sometimes compelled to convict themselves falsely. In view of all of this Fernando now ordered that in future no judge should use any kind of pressure or torment to obtain confession from the accused or testimony from witnesses, all usages to the contrary being abolished.[98] This can scarce have applied to the Inquisition but, under the Restoration, it had little to do with actual heresy and, before it was thoroughly reorganized, all doubts were removed by Pius VII. Llorente tells us that the Gazette de France of April 14, 1816, contained a letter from Rome of March 31st, stating that the pope had forbidden the use of torture in all tribunals of the Inquisition, and had ordered that this be communicated to the ambassadors of France and Portugal.[99] I see no reason for doubting this, although no such brief appears in the Bullarium of Pius VII, and we may assume that at last the Spanish Holy Office closed its career relieved of this disgrace.

According to an arancel, or fee-list, of 1553, the executioner was entitled to one real for administering torture, or to half a real if the infliction was only threatened. In the lay courts the sufferer was obliged to pay his tormentor, for there is a provision that, if he is poor, the executioner is to receive nothing and is not allowed to take his garments in lieu of the money.[100] In the Inquisition where, for offences justifying torture, arrest was accompanied with sequestration, the tribunal necessarily took upon itself the payment and, as we have seen, in 1681, the fee had increased to four ducats. In cases which did not end with confiscation, the outlay was undoubtedly included among the costs of the trial charged against the sequestrated estate. In the Roman Inquisition, where torture was used so much more indiscriminately, a decision of the Congregation, in 1614, relieved the accused from payment of the fee.[101]

CHAPTER VIII.
THE TRIAL

THE procedure of the Inquisition was directed to procuring conviction rather than justice, and in some respects it bore a resemblance to that of the confessional. The guilt of the accused was assumed, and he was treated as a sinner who was expected to seek salvation by unburdening his conscience and contritely accepting whatever penance might in mercy be imposed on him. Pressure of all kinds, mental and bodily, was scientifically brought to bear upon him to induce confession, and his refusal to confess, in the face of what was considered sufficient evidence, was treated as hardened and pertinacious impenitence, aggravating his guilt and rendering him worthy of the severest penalty.

The arrest, as we have seen, was preceded by careful preliminaries. Evidence was accumulated, in some cases for years, and, when the accused was thrown into the secret prison, he was to a great extent prejudged. It was the business of the tribunal, while preserving outward forms of justice, to bring about either confession or conviction; the defence was limited and embarrassed in every way and, when the outcome of all this was doubt, it was settled in the torture-chamber, always with the reservation that, if suspicion remained, that in itself was a crime deserving due punishment.

AUDIENCES

In the earliest period there were few formalities and no absolute estilo, or recognized method of procedure. In the enormous work crowded upon the inexperienced tribunals, the main object was the despatch of business, and the success attained in this is seen in the frequent and enormous autos de fe. The records of the trials are hasty and imperfect, showing that little attention was paid to forms that might cause delay. The Instructions of 1484 are crude, merely meant to supplement the traditional system of inquisitorial procedure with such regulations as should adapt it to the needs of the situation and to the intentions of Ferdinand and Isabella. They are largely devoted to the questions of confiscation and the fines accruing under the Edicts of Grace and, for the rest, they conclude by saying that, as all circumstances cannot be foreseen and provided for, everything is left to the discretion of the inquisitors who, in all that is not especially prescribed, must conform themselves to the law and act according to the dictates of their consciences for the service of God and the sovereigns.[102] The result of this discretion was that, in the assembly of the inquisitors in 1488, a long debate was required to reach the conclusion that there should be uniformity in the procedure and acts of all the tribunals, the existing diversity having led to many embarrassments.[103]

It is therefore scarce worth while to examine in detail the simple and varying forms of this period, except as we shall find them interesting in comparison with later practice. The desired uniformity was gradually attained by the Suprema which, under the independent organization of the Spanish Holy Office, developed an elaborate system of procedure, set forth in the Instructions of 1561 and furnished, in 1568, with all necessary formulas in the Orden de Processar of Pablo García. Subject to such changes as subsequent experience demanded, this remained the standard to the last and was followed, with more or less exactitude by the tribunals.

When the accused was thrown into the secret prison his case, in the hurry of the earlier period, was heard and despatched with promptitude, but subsequently it became the custom for the inquisitors to exercise their discretion as to when they would call him before them, and we shall see what exasperating and calculated delays they sometimes interposed. He could, however, ask for an audience at any time, and it was an invariable rule to grant such requests, for the reason that he might have an impulse to repent and confess which might be transitory. Such audiences, however, did not count in the progress of the case. When summoned to his first regular audience, he was sworn to tell the truth in this and all future hearings and to keep silence as to all that he might see or hear, and as to everything connected with his own affair. He was made to declare his name, his age, his birthplace, his occupation and the length of time since his arrest. After these formalities, if the case was one of heresy, there came an investigation into his genealogy. This, which accumulated a mass of information as to all infected families, and facilitated greatly researches into limpieza, was not a feature of the early trials; in those of from 1530 to 1540, it was still very informal, but by the middle of the century it had become minute, extending back to two generations and including all uncles, aunts and cousins, describing of what race they were, whether any of them had been tried by the Inquisition and, if so, how punished. The punctilious observance of this takes a somewhat ludicrous aspect in the trial at Lima, in 1763, of a Mandingo negro slave for superstitious cures. He was seventy years of age and had been brought from Guinea when a child, but was interrogated minutely as to parents and grandparents, uncles and aunts, and was made to declare that they were all of the race and caste of negroes, and that none of them had been penanced, reconciled or punished by the Inquisition.[104] The accused was then interrogated as to his baptism, confirmation and observance of the rites of religion; he was made to sign and cross himself, repeat the creed and usual prayers, and finally to give an account of his past life.

After these preliminaries, of which the results were carefully recorded, he was asked whether he knew, presumed or suspected the cause of his arrest. With rare exceptions, the reply was in the negative and then followed what was known as the first of three monitions. There is no trace of these in the earliest trials, but toward 1490 an informal monition makes its appearance and the Instructions of 1498, in requiring the formal accusation to be presented within ten days after arrest, prescribed that within that time the necessary admonitions shall be given.[105] In 1525 a letter of Manrique shows that these monitions then were three, but they still were negligently observed, and in trials from that time until 1550 they vary from none to three.[106]

THE THREE MONITIONS

After the Instructions of 1561, the three monitions became the established rule in cases of heresy, while one sufficed in lighter matters. The formula was formidable. The accused was told that, in the Holy Office, no one was arrested without sufficient evidence of his having done or witnessed something contrary to the faith or to the free exercise of the Inquisition, so that he must believe that he has been brought hither on such information. Therefore, by the reverence due to God and his glorious and blessed Mother, he was admonished and charged to search his memory and confess the whole truth as to what he feels himself inculpated, or knows of other persons, without concealment or false-witness, for in so doing he will discharge his conscience as a Catholic Christian, he will save his soul and his case will be despatched with all speed and befitting mercy, but otherwise justice will be done. At intervals a second and a third monition were given, the last one ending with the warning that the fiscal desired to present an accusation against him, and it would be for his benefit, both for the relief of his conscience and for the favorable and speedy despatch of his case, if he would tell the truth before its presentation, as thus he could be treated with the mercy which the Holy Office was wont to show to good confessors; otherwise he was warned that the fiscal would be heard and justice would be done.[107]

This brought an exceedingly effectual pressure to bear upon the anxious prisoner, especially when the system of delay, whether calculated or merely procrastinating, left him for months, and perhaps years, to lie in his cell, shut out from the world, brooding over his fate, and torturing himself with conjectures as to the evidence so confidently assumed to be conclusive against him. He was simply admonished to discharge his conscience, being kept in the dark as to the crimes of which he was accused, and left to search his heart and guess as to what he had done to bring him before the terrible tribunal. This had the further utility that in many cases it led to confession of derelictions unknown to the prosecution, his impassible judges coldly accepting his revelations and remanding him to his cell with fresh adjurations to search his memory and clear his conscience.

This cruel device of withholding all knowledge of the charge appears to have been introduced gradually. In some cases, of about 1530, slight intimations of the nature of the accusation are given, but by 1540 complete reticence seems to be general. There was no formal instruction prescribing it, but it became the universal custom, based perhaps on the principle that the confession, like that to a priest, to be trustworthy must be spontaneous, showing the change of heart and conversion which alone could render the culprit worthy of mercy. Yet, towards the end of its career, under Carlos III and after the Restoration, the Inquisition occasionally granted an audiencia de cargos, in which the accused was apprized of the charges against him and, in trivial matters, this frequently took the shape of summoning him under some pretext that would save his reputation, informing him of the alleged offences and, after hearing his explanations, determining what course to pursue. Even in so serious a matter as the celebration of mass by a married layman, the Santiago tribunal, in 1816, after throwing Angel Sampayo into the secret prison, gave him an audiencia de cargos before proceeding further.[108]

How systematic reticence sometimes succeeded is indicated by the case of Angela Pérez, before the Toledo tribunal in 1680. After lying in prison for eleven months she asked an audience, May 19th, to inquire why she had been brought to Toledo. She was admonished that she had already been told that no one was arrested who had not said or done something contrary to the faith; if she wished to discharge her conscience she would be heard, and, on her asserting that she had nothing to confess, she was sent back to her cell with an admonition to think it over and discharge her conscience. On June 13th she sought another audience, for the same purpose and with the same result. Then, on June 22d she was transferred from the carceles medias to the secret prison and, on the 25th, she obtained another audience in which she entreated the inquisitors, in the name of the Virgin, to bring the charges, but all that she obtained was to have her genealogy taken and to receive the first monition. To this she replied that she had nothing to confess and wanted her case despatched as she had been thirteen months in prison. The implacable methods of the Inquisition triumphed, however, for the next day she sought an audience in which she confessed that for eight years she had observed the Law of Moses.[109]

THE ACCUSATION

Even more suggestive, though in a different way, is the Mexican case of the priest Joseph Brunon de Vertiz, who was one of the dupes of some women pretending to have revelations. They were all arrested and he was thrown in prison September 9, 1649. In repeated audiences he vainly sought to learn the charges against him; he fairly grovelled at the feet of the inquisitors; he made profuse statements of everything concerning himself and his accomplices; he submitted himself humbly to the Church and was ready to confess whatever was required of him, but all to no purpose. The strain proved too great for a mind not overly well-balanced, and it began to give way. The first symptoms were complaints of demoniacal possession, followed, after an incarceration of two years and a half, by his writing a paper full of the wild imaginings of a disordered brain, in which he denounced the Inquisition as a congregation of demons and the Jesuits as the most detestable enemies of God. Then he lay in his cell for more than two years, until, July 23, 1654, he presented another incoherent paper. Finally he died, April 30, 1656, after more than six and a half years of imprisonment, without ever learning of what he was accused. His body was thrust into unconsecrated ground and the prosecution was continued against his fame and memory. On May 11, 1657, the fiscal at last presented an informal accusation for the purpose of summoning the kindred to defend the case; on October 22, 1659, more than ten years after the arrest, the formal accusation was presented and, as defence was impracticable, Brunon de Vertiz was condemned and his effigy was burnt in the auto de fe of November of the same year.[110]

When, in the third monition, the accused was warned that, if he did not confess, the fiscal would present an accusation, there was implied deceit for, whether he confessed or not, the trial went on in its inevitable course. It was usually in the same audience, after he had replied to the monition, that the fiscal was introduced with the accusation, to which he swore and then retired. This formidable document was framed so as to be as terrifying as possible. In cases of heresy it represented that the accused, being a Christian baptized and confirmed, disregarding the fear of the justice of God and of the Inquisition, with great contempt for religion, scandal of the people and condemnation of his own soul, had been and was a heretic, an impenitent, perjured negativo and feigned confessor; that he had committed many and most grievous crimes against the divine majesty and the free exercise of the Inquisition, and was a fautor and receiver of heretics. Then followed the recital of the acts developed by the evidence, arranged in articles, reduplicated and exaggerated and presented in the most odious light. Besides this he was a perjurer, by refusing to confess in the audiences, after swearing to tell the truth, from which it was presumable that he was guilty of other and greater crimes, of which he was now accused generally and would be specifically in due time. Wherefore the fiscal prayed that the accused should be found guilty of the crimes recited, condemning him to confiscation and relaxing his person to the secular arm and declaring him to have incurred all the other penalties and disabilities provided by papal letters, instructions of the Holy Office, and pragmáticas of the kingdoms, executing them with all rigor so as to serve as a punishment for him and an example to others. After this followed the terrible clause, known as the Otrosi, demanding that he be tortured as long and as often as might be necessary to force him to confess the whole truth.

One thoroughly unjustifiable feature of the accusation was that, if there was evidence of other misdoings of the accused, wholly outside of the jurisdiction of the Inquisition, they were inserted because, as the Instructions of 1561 remark, they serve as an aggravation of his heresies and show his unchristian life, whence may be derived indications as to matters of faith.[111]

As soon as the accusation was read, it was gone over again, article by article, and the accused, while still confused by its menaces, taken at advantage, wholly unprepared and without assistance of any kind, was required to answer each on the spot, his replies or explanations being taken down by the secretary as part of the record of the case. After this he was told to choose an advocate to aid in his defence.

THE ADVOCATE FOR THE DEFENCE

The custom of allowing counsel in criminal cases is so comparatively recent in English law that their admission by the Inquisition may be regarded as an evidence of desire to render justice. In Spain, however, it was customary, and defendants too poor to retain them were supplied at the public expense. In the royal chancellería, as organized by Ferdinand and Isabella, there were two abogados de los pobres.[112] In the medieval Inquisition, during its earlier centuries, counsel were not allowed to the accused and it became a settled principle of the canon law that advocates who undertook the defence of heretics were suspended from their functions and were perpetually infamous.[113] Towards the close of the fifteenth century, however, in witchcraft trials, we find advocates admitted, but under the strict limitations that we shall see in Spain, and those who showed themselves too zealous in defence of their clients were subject to excommunication as fautors of heresy.[114]

When the Spanish Inquisition was founded, it was therefore a matter of course that the accused should be allowed the assistance of trained lawyers and not only this but of procurators, who attended to the business of the defence, performing the functions, in some sort, of the English solicitor, while the letrado represented the barrister and drew up the argument. In a number of trials at Ciudad Real, in 1483, there appears to have been considerable freedom of choice, the accused selecting both advocates and procurators. During the persecution at Guadalupe, in 1485, the defendants were mostly represented by Doctor de Villaescusa as advocate and by Juan de Texeda as procurator, and the arguments in defence were well and forcibly presented.[115] This was in accordance with the Instructions of 1484, which order that if the accused shall ask for an advocate and procurator, the inquisitors shall grant the request, receiving from the advocate an oath to assist him faithfully, without cavils or malicious delays, but that if, at any stage of the case, he finds that his client has not justice on his side, he will help him no longer and report to the inquisitors; if the accused has property, they shall be paid from it, but if he has none they shall be paid out of other confiscations, for such are the orders of the sovereigns.[116] Yet this liberality was nullified by the clause requiring advocates to betray their clients, thus destroying all confidence between them and fatally crippling the defence. It was, however, in accordance with the ethics of the age, and we shall see how it developed in a manner to render illusory the services of the advocate.

It would seem that the tribunals sometimes chafed under these rules and asserted discretion to disregard them for, in the case of the priest, Diego García, in 1488, when he was told to select an advocate and a procurator, the fiscal refused consent, and he had to conduct his own defence, though, at a subsequent stage of the trial, Diego Tellez appeared for him.[117] It was possibly in consequence of such cases and of other impediments to the defence, that the Suprema issued a provision that all prisoners should be allowed to take a procurator and advocate, provided they were fitting persons. Also that the children and kindred of the accused should not be prohibited from consulting as freely as they pleased with the counsel, and that he should have copies of the accusation, the depositions of the witnesses and other papers in conformity with the Instructions.[118] All this, which was demanded by the simplest demands of justice, became, as we shall see, a dead letter.

OFFICIAL ADVOCATES

That the danger awaiting a too zealous advocate was not purely hypothetical is seen in the case of Casafranca, deputy of Ferdinand’s treasurer-general of Catalonia, who was burnt in the auto de fe of January 17, 1505, and his wife in that of June 23d; his father-in-law had been reconciled and his mother, after condemnation, died in the secret prison. Francisco Franch, the royal advocate-fiscal, had defended Casafranca, and the Inquisition prosecuted him for his unsuccessful attempt to avert his client’s fate, although at that time he had risen to the position of Regent of the royal Chancellery. Ferdinand, who felt much interest in his behalf, made Inquisitor-general Deza write in his favor to Francisco Pays de Sotomayor, an inquisitor specially deputed to hear the case, but this did not save him from bitter humiliation and dishonor. February 28, 1505, Sotomayor pronounced sentence in which his offence was described as endeavoring to induce a witness to revoke his testimony, and as impeding the Inquisition by useless and procrastinating delays, by which he had incurred excommunication, and moreover he was guilty of perjury by asserting a false and erroneous conclusion, for all of which he had humbly begged pardon and mercy. After obtaining absolution from a priest he was to stand the next day before the high altar of Santa María de Jesu during mass, with a lighted candle, in penitential guise, and forfeit all payment for his services—which would have come out of Casafranca’s confiscated estate. Both he and the fiscal accepted the sentence, but there was delay in his public penance, for he refused to utter certain words interlined in the sentence, which he asserted had been inserted since it was read to him. The fiscal threatened to appeal to the inquisitor-general and demanded that Franch be detained in prison until the appeal was decided, whereupon he yielded and the ceremony was performed on March 1st.[119]

When the efforts of counsel in behalf of their clients were thus effectually discouraged, nothing but the most perfunctory services could be expected from them, and the inquisitors need apprehend little trouble. Even this, however, was thought to give the accused too much chance, and all risk of inconvenient zeal was averted by depriving him of the right to select his defender and confining the function to one or two appointees of the tribunal, who could be relied upon to favor the faith. The first intimation of this policy comes in the memorials of Jaen and Llerena in 1506, which complain bitterly that the inquisitors refuse to allow the accused to select their advocates and procurators, forcing them to take such as they appoint who will do their bidding. The Jaen memorial describes them as enemies of the people, who desire arrests to be multiplied, as they charge three thousand maravedís in every case which, for the two hundred prisoners, amounts to six hundred thousand.[120] This abuse, probably originating with Lucero, was so conformable to the tendencies of the Holy Office that it gradually became the rule. In 1533, one of the petitions of the Córtes of Monzon was that prisoners should be allowed to select their advocates and procurators, and to this no direct answer was made.[121] In 1537 the abogados de los presos were already recognized as officials appointed by the tribunals. They were exclusively entitled to conduct the defence and, in 1540, the Suprema, in reply to a petition, said that, if the party desired a different advocate, it could only be on condition that he should act in consultation with the official one. Even this poor privilege was withdrawn for, in 1562, Valdés decreed that the official counsel should communicate with no other advocate.[122] It is true that, in 1551, the Suprema had admitted that, if the tribunal had not been able to find a fitting lawyer for appointment, the accused could select one, but this was merely yielding to necessity.[123]

The chief qualification for an abogado de los presos was his limpieza and that of his wife; his subservience to the tribunal was assured by his dependent position, but, to render this more absolute, about 1580 the Suprema ordered the Lima tribunal—and probably all others—to make its advocates familiars, an office which bound them to the strictest obedience.[124] Allowing for natural exaggeration, there is probably truth in the description given, in 1559, by Antonio Nieto, a prisoner in Valencia, to his cell-mate Pedro Luis Verga, who, after his first audience, was felicitating himself on Inquisitor Arteaga’s promise to give him an advocate and a procurator. Nieto told him not to count upon it for, though the inquisitor might give him an advocate he would give him nothing good, but a fellow who would do only what the inquisitor wanted and, if by chance he asked for an advocate or a procurator not of the Inquisition, they would not serve for, if they went contrary to the inquisitor’s wishes, he would get up some charge of false belief or want of respect and cast them into prison.[125]

FUNCTION OF THE ADVOCATE

The advocate thus became one of the officials of the tribunal, duly salaried and working in full accord with the inquisitors. In 1584, we find him of Valencia petitioning to have a place assigned to him in the autos de fe, where he could be recognized as such and, at his ease, see his clients sentenced. The petition was granted and he was allotted the last place among the salaried and commissioned officers.[126] This became the established rule, but in time professional dignity was wounded at thus being relegated to a position inferior to the messengers and apparitors and gaolers.

In Valladolid and Granada the advocates obtained promotion to outrank the physicians and surgeons and, in 1670, the Licentiate Juan Márquez, advocate in the Seville tribunal, addressed to the Suprema a formidable memorial of seventy-five quarto pages of text and fifteen of index, representing the slight thus put upon them, and setting forth the dignity of the legal profession, the respect due to its learning and, as regards the advocates of prisoners, the confidential position occupied and the fidelity with which they served the tribunals. It seems never to have occurred to him to put forward a claim based upon fidelity to their clients.[127]

In fact, the so-called advocate was simply an official instrument for securing confession and conviction, for which his ostensible position of friendly adviser gave him peculiar opportunity. No communication between him and his client was allowed, except in presence of the inquisitors and of the secretary, who made record of all that passed between them, thus keeping watch to see that he performed his duty. It is true that he was sworn to defend the prisoner with all care and diligence and fidelity, if there was ground for it, and if not to undeceive him, but his real duty is described as urging the prisoner to confess fully as to himself and others, and to throw himself upon the mercy of the tribunal, for by denial he would only prejudice his case and suffer in the end.[128] How any deviation from this was treated, appears in the case of Benito Ferrer, in 1621, before the Toledo tribunal. In the consultation, his advocate Argendona suggested some points of defence displeasing to the inquisitors, who promptly ordered him out of the audience-chamber and sent Benito back to his cell to refresh his memory and discharge his conscience, and two days later Argendona had to put in the written defence without further opportunity of conference. The Licentiate Egas had a more accurate conception of his duty, when serving as advocate for Isabel Reynier, tried, in 1571, for Protestantism in Toledo. The official record states that, after unavailing efforts to induce her to confess, he asked whether she had any enemies to disable, on which he could frame a defence, when she named several, but, as the Señores Inquisidores wanted to despatch the case, he told her that this would avail her nothing, for there was no presumption that enmity had caused false-witness, and he went on to persuade her that she had already confessed enough to render her case hopeless. The impatience of the inquisitors was gratified, for the unfortunate woman was sent to the stake without Egas troubling them by putting in a written defence.[129]

The old rule remained in force forbidding the advocate to defend an impenitent heretic. It made no difference of course in the result, but still permission to do so would have saved appearances. Such cases occasionally occurred, like that of Benito Peñas at Toledo in 1641, a harmless lunatic with some vague speculative heresies. His advocate, Juan Díaz Suelto, after a conference in which his client obstinately rejected his advice to forsake his errors and beg for mercy, reported that his efforts had been in vain, so that it was necessary for him to abandon the defence, in order not to incur the censures and other penalties imposed by the papal briefs, and also for the speedier despatch of the case.[130] Even as late as 1753, at Valencia, the same occurred in the trial of a swindling German named Horstmann.[131]

PROCURATORS NOT ADMITTED

If, even under these shackles, an advocate desired really to defend his client, he was deprived of the means to do so. Originally, as we have seen, the kindred and children were allowed freely to communicate with him, to furnish indispensable assistance and information, and to gather witnesses, and he was also supplied with copies of the depositions of the witnesses and other necessary papers. It seems to have been Lucero, the evil inquisitor of Córdova, who changed all this, for the memorials of Jaen and Llerena complain bitterly of such denial of justice, rendering nugatory all the means of defence, and depriving the kindred of all knowledge of the nature of the accusation.[132] It expedited business however and facilitated conviction, and its usefulness overcame all scruples. In 1522 Cardinal Adrian forbade all communication between the advocate and the children or kinsmen of the accused, and this prohibition was repeated until it became the invariable rule. In the same spirit, the only document, that he was allowed to have, was a copy of the publication of evidence, which was a very different thing from the original depositions. To repress all initiative on his part he was prohibited from putting forward any defence save what the accused might suggest, in their open consultations in the audience-chamber, or to call for any witnesses whom the latter did not name, and the inquisitors were instructed to punish any infractions of this rule because they were troublesome and impeded the course of business.[133] If an advocate was suspected of undue zeal, the inquisitors had a right to interrogate him as to the measures taken for the defence, the sources of his information and other details; the defence in every way was obliged to play cartes sur table, while the fiscal’s hand was carefully guarded, and only such knowledge was permitted as served to confuse and mislead. It would seem scarce likely, under such regulations, that advocates would be guilty of really assisting their clients, but to guard against such possible derelictions of duty, inspectors were ordered, when visiting tribunals, to inquire whether they defend the accused “maliciously” and employ cavils for delay and finally, whether or not they are necessary.[134]

At the same time, in its affectation of fairness, the Inquisition insisted on the accused having counsel. When, in 1565, Pedro Hernández was tried at Toledo for Calvinism, he confessed at once, professed conversion and begged for mercy. When told to select an advocate he refused, until informed that it was imperative for him to have one to conduct his defence. Of course this was a mere formality for he was duly burnt in the auto de fe of June 17th.[135] Inquisitors, moreover, were required to admit all documents offered to them, and to listen to any one who might have the hardihood to appear in favor of a prisoner.[136]

Simultaneously with the development of restrictions on the advocate, the disappearance of the procurator completed the system of enabling the inquisitor to control the defence as well as the prosecution. One of the latest references to the procurator is a regulation of 1545, which infers that, if the accused made application, the tribunal would grant him one, with the reservation that this did not entitle the kindred to aid in the defence.[137] This jealousy of outside assistance constantly increased and some tribunals, such as Seville and Córdova, commenced to refuse admission to procurators, except in prosecutions of the absent and dead; the kindred might suggest the names of witnesses to the inquisitor, who would summon and examine them. Finally Inquisitor Cervantes, when in 1560 he made a report on Barcelona, took the opportunity of pointing out the disadvantages of such representatives of the accused; through them, he argued, the case became known, they anticipate the witnesses before they give evidence, they are able to identify them and furnish to the accused reasons for disabling them. The Bishop of Avila, a member of the Suprema, promptly admitted the force of this, and declared that procurators ought no longer to be allowed. This opinion prevailed and, in the Instructions of 1561, their admission was forbidden, although in case of necessity, special powers might be given to the advocate.[138] They continued, however, to be appointed in trials of the absent and dead, where it was unavoidable. The Roman Inquisition did not follow this example of the Spanish and allowed the employment of procurators.[139]

THE CURADOR

Besides the advocate there appears in many trials a personage known as the curador, or guardian, a living evidence of the fatherly care of the Inquisition toward the helpless. Following the traditions of the Roman law, Spanish jurisprudence provided that, in suits and actions involving those who had not attained the full age of twenty-five years, the assent of a curador, either permanent or temporary ad hoc, was necessary to validate the legal acts of the minor.[140] This provision, intended for the protection of the youthful and incapable, was retained in the practice of the Inquisition, because it was necessary to render valid the various compulsory acts of the accused in the successive steps of his trial, but in order that it might not by any chance be of value to him, and to preserve the secrecy of the Holy Office, the custom was adopted of appointing the advocate or preferably the gaoler, or messenger, or some other underling of the tribunal to serve as curador. As it was thus wholly subversive of the object for which the function was created, there is grotesque cynicism in the pompous formalities through which the curador was interjected into the proceedings. He took a solemn oath that he would diligently and faithfully defend his ward, alleging all that was to his advantage and preventing all that was injurious, advising with his advocate and doing all that a good guardian could do for a ward. And, if the latter, through his negligence, suffered injury, he pledged his person and property to make it good, giving as security another person (a fellow subordinate) who united with him in the liability, jointly and severally, renouncing all legal defence and placing themselves and all their possessions in the hands of the inquisitors.[141] Being thus a mere formality, or rather a deception, involving the perjury of those who took the formidable oath, it may be dismissed from further consideration, except to cite a case illustrative of the rigid formalism of procedure. In 1638, at Valladolid, Blanca Enríquez, on trial for Judaism, represented herself as twenty-two years of age and as usual was given a curador. She confessed to having been reconciled at Córdova, nine or ten years before; a vote in discordia carried the case to the Suprema, which discovered that her previous trial had occurred in 1623, when she was fifteen and consequently she was now thirty. The curador therefore had rendered the trial irregular, and the Suprema ordered it to be repeated from the beginning.[142]

There was another form of assistance allowed to the accused, when the questions at issue involved nice theological points, beyond the capacity of the ordinary advocates. Learned doctors were called in as patrones teólogos, to aid the accused, after he had been heard in defence of his incriminated propositions. In ordinary practice, the propositions and his answers were read to them; to each one they said whether he had satisfactorily explained it or not; or whether he ought to retract, or whatever other conclusion they might reach; then the whole was submitted to the calificadores, who pronounced their final censure.[143] Nominally the patrones were selected by the accused but in this, as in everything else, the Inquisition sought to control the defence. When, in 1574, Fray Luis de Leon was told that he could have patrones, he named four from various places. The Valladolid tribunal referred the nominations to the Suprema, which replied by asking whom it was accustomed to give from among its calificadores and, on being informed, ordered that the routine custom should be followed. Fray Luis’s protest that he did not want calificadores, who had already pronounced against him, was set aside; patrones were not meant to defend the accused in his heresies, but to undeceive him and tell him what he should believe. It is true that the Suprema finally receded from this position but, by a juggle continued for months, Fray Luis was forced to take a man whom he did not want, and who was only a new and disguised calificador; conference between them was denied, and the opinion which the patron rendered was withheld from him.[144] The wisest course for a theologian, in the hands of the Inquisition, was that adopted by Fray Thomas de Nieba, in 1642, when on trial at Valladolid for certain conclusions defended by him in scholastic debate. He refused both advocate and patrones, saying that he was subject to correction by the Church and by learned theologians, and he did not propose to defend the inculpated propositions.[145]

PUBLICATION OF EVIDENCE

We have seen that, after the accusation was read and answered, the prisoner was told to choose an advocate. Possibly two names were mentioned to him, both equally unknown; more often only a single name. He was not at liberty to refuse and, on his giving assent, the advocate, who had been kept in readiness in the antechamber, was called in. The proceedings up to that point were read to him, and he at once performed the duty of urging his client to confess. Whether successful or not in this, he stated that the next thing in order was to conclude; the fiscal was called in, who similarly announced that he concluded, and the inquisitors notified both parties of the conclusion. These formalities being over, the case was formally received to proof. The fiscal asked that his witnesses be ratified and publication of evidence be made.

Ratification, as we have seen, frequently caused considerable delay, until the device was invented of ratifying at the time of deposition. When the evidence was thus in proper shape, the next move was its so-called publication. This might or might not be the final step of the prosecution, for it never was precluded from bringing in new evidence, and there might be half a dozen or more successive publications, especially when a group of Judaizers were on trial and they broke down one by one and told what they knew about their associates. The effectiveness of this is illustrated by the case of Engracia Rodríguez at Valladolid, in 1643. After her case had apparently reached its end, the consulta de fe voted her to torture, which was duly administered, without eliciting a confession. Then from time to time came new publications of evidence, until her resolution gave way and, at the seventh publication, eleven months after her torture, she confessed to Judaism. She probably recognized that her kindred and friends were yielding, one after another and incriminating her, and that it was useless to resist longer, with the certainty—of which her advocate doubtless informed her—that persistence would indubitably end in her burning alive as an impenitent negativa.[146]

As this publication of evidence was the only inkling afforded to the accused of what was the case against him, and as it was assumed to give him ample opportunity of defence, it is worth a little special consideration. We have seen that the pretext of protecting witnesses was held as justifying the suppression of their names and of all circumstances that might lead to their identification. Even under the most rigid construction, this crippled greatly the defence, but rigid construction of their powers was not common among the tribunals. When once it was admitted that portions of the evidence could lawfully be suppressed, the selection of what should be made known became largely discretional.

The endeavor to lay down rules for guidance as to this led to an infinity of instructions, more or less rigid or lax. In 1498, the Suprema called attention to the evils that had hitherto followed publication, wherefore in future care must be taken to omit all circumstances giving a clue to the identity of the witnesses, and this was repeated in 1499.[147] Yet the glaring injustice of withholding from the accused a knowledge of details that might enable him to disprove the charges was recognized, but all instructions forbidding this were framed with an “if” that virtually authorized the wrong. For instance, the specification of time and place at which an act was said to have been performed was indispensable, if the accused were to have a chance of detecting false swearing, yet such details might possibly lead him to identify the witness, and these opposing reasons gave rise to a series of varying orders which indicate how the Suprema vacillated between the desire to secure the advantage and the consciousness of the wrong. In 1525 it condemned the practice of the Toledo tribunal in omitting time and place. It was difficult to make the inquisitors observe this and, in 1527, a general order was issued to state the evidence as the witnesses had given it, neither more nor less. In 1530 it made a concession by ordering that it should be consulted when there was “inconvenience” in stating the month or year. Then, in 1532, it laid down the positive rule that place and time and persons must be stated, for the principle that the witness must be protected was to be construed as preventing only direct recognition and not inferential. This was again modified, in 1537, when, while again ordering that all the evidence must be given, this was qualified by the old injunction to suppress all circumstances by which the witnesses could be identified. About 1560, some instructions to Barcelona order that the time should be stated, while place is to be indicated in such general terms as shall not betray the witness. Finally, in the definitive Instructions of 1561, time and place are ordered to be given, but at the same the omission is prescribed of all that may betray the witness. A caution that no evidence is to be used that is not in the publication gives a hint of other irregularities of even a more serious nature.[148]

The publication being a matter of supreme importance, it was the duty of the inquisitors personally to draw it up, and not entrust it to subordinates, least of all to the fiscal, who was technically the prosecutor. Orders to this effect were issued in 1529; they were repeated in the Instructions of 1561 but, in 1568, the Suprema was obliged to take the Barcelona tribunal to task for allowing the fiscal to do it, and a later writer informs us that inquisitors continued to shirk the labor and threw it upon the secretaries.[149]

The labor was doubtless great, when the witnesses were numerous and loquacious, and the delicate duty was apt to be recklessly performed by subordinates, fearful of rebuke if they allowed too much to be known. The custom was to give the evidence of each witness separately, as deposed by “a certain person” and, when practicable, to divide it up into articles, each covering a separate charge or fact. In this process the elimination of all circumstances that might give a clue to the identity of the witnesses was easy, and there was little scruple in misleading the defendant or in omitting whatever might be thought to weaken the case. In the publication read to Marí Gómez la Sazeda, when on trial at Toledo in 1544, the evidence of one witness is divided and represented as given by two, with the object, as noted on the margin, of preventing her from identifying him.[150] In the case of Gaspar de Torralva, before the same tribunal in 1531, the publication bears such notes as “the evidence of the seventh witness omitted,” “the evidence of the eighth witness omitted.”[151] There was no possible supervision or control over this; the discretion of the inquisitors was absolute and the prisoner was at their mercy.

PUBLICATION OF EVIDENCE

In many cases the publication was scarce more than a slovenly repetition of the fiscal’s accusation and afforded to the accused no possible aid in his defence, as in that given to Juan de la Barra, tried for Lutheranism at Toledo, in 1656.[152] When it was drawn up more elaborately, it became confusing in the highest degree. One reads the long array of the assertions, or the conjectures, or the gossip retailed by twenty-five or thirty witnesses, vaguely set forth as what a “certain person” said or thought about another certain person, with no specifications of time or place, and one wonders how the prisoner could even grasp it sufficiently to form any definite conception of the character and weight of the evidence against him. And, with his life perhaps hanging in the balance, he was required to answer all this on the spot, article by article, and was closely cross-examined on his replies. That even an innocent man should compromise himself in the pitfalls thus cunningly laid for him was not unlikely, and yet this publication of evidence was represented as a special favor granted in view of the other restrictions imposed on the defence—a favor not always conceded in the secular courts.[153]

After this ordeal was passed the advocate was called in and furnished with the publication and the answers of the accused. The two conferred together, under the eye of the inquisitor and pen of the secretary; if the accused rejected the renewed advice of the advocate to confess and discharge his conscience, the plan of defence was concerted. What this was, as a rule, made little difference. When, in 1499, the inquisitors-general felt it necessary to instruct inquisitors that they must pay attention to the defences and exceptions alleged by the accused, it indicates how they were recognized as prosecutors rather than judges. Yet it was freely admitted that, in view of the limitations of the defence, they should be most zealous in considering whatever it presented.[154]

The defence was so perfunctory a routine that the systematic writers mostly dismiss it with the curt observation that its witnesses must be zealous Christians and in no way connected with the defendant. Simancas, however, treats it at greater length, and his enumeration of its possibilities shows how restricted they were. He admits at the start the legal maxim that it is impossible to prove a negative, which was virtually, in most cases, the task imposed on the accused. Then he proceeds to define what the defendant can do. He can call on witnesses to prove his religious character or to disable for enmity the opposing witnesses, or to show that at a certain time or place he did not say what was attributed to him. Then there are general pleas in abatement, extreme youth, second childishness, insanity, drunkenness, thoughtless speech, ignorance, jocularity, the pressure of fear under threats, or intense grief. Or he may recuse the judge, which should be referred to the Suprema and not to arbiters, who cause much delay.[155]

THE DEFENCE—RECUSATION

Recusation of a judge was a right recognized in the traditional legislation of Spain.[156] It was admitted in the Inquisition and we have seen, in the cases of Carranza and Villanueva, how little the accused profited thereby, even when nominally successful. It was a recourse practically open only to the powerful or to the trained, at best but a dangerous expedient, and of necessity had to be done at the commencement of a trial. It evidently was not employed often enough for a definite form of procedure to have been provided. The Instructions of 1561 require that, if an inquisitor be recused, he must abandon the case to his colleague; if he has none, or if both are recused, the matter must await the decision of the Suprema.[157] This would indicate that the recused judge retired as a matter of course, but the Carranza and Villanueva cases prove that the objections of the prisoner had to be demonstrated as legitimate and this is further indicated when the troublesome Jesuit, Padre Juan Bautista Poza’s extravagant Mariolatry was condemned at Rome and approved in Spain. It took seven years after his Elucidarium Deiparæ had been placed on the Roman Index, in 1628, before the Spanish Inquisition could be compelled by the nuncio to prosecute him for his rebellious defiance. When on trial by the Toledo tribunal, he recused the Inquisitor Cienfuegos; his reasons were examined by the Suprema, which consulted the other inquisitors and the recusation was sustained. How unusual was this proceeding is indicated by the boast of his triumphant brethren that this was one of the remarkable events that had occurred in Spain.[158] Yet an incident in the trial of Fray Luis de Leon shows the advantage taken of any obstacle to prevent recusation. After two and a half years of seclusion in prison from the world, he asked to know the names of the existing inquisitor-general and members of the Suprema, in order that he might recuse any whom he regarded as inimical, yet this elementary piece of information was denied, in spite of repeated applications, in which his counsel joined, showing that the latter was debarred from telling him what was of public notoriety.[159] Strictly speaking, recusation was not a defence but merely a preliminary to it, and its rarity renders it of minor importance.

Of the pleas in abatement enumerated by Simancas, that of youth amounted to little for, as we have seen, as soon as the age of responsibility was reached, the offender was liable to punishment, and there was little mercy shown. In fact, there was a device, when the culprit was below the age of fourteen, of postponing the sentence until he had attained that age.[160]

THE DEFENCE—INSANITY

Insanity was of much greater moment. The insane were recognized as irresponsible and were sent to hospitals. It was not infrequently pleaded, and the tribunals were constantly on the watch to protect themselves against deception, yet it was long before definite rules were adopted with regard to the matter. In the enlightened view taken by the Inquisition regarding witchcraft, instructions of 1537 indicate a disposition to regard reputed witches as insane; whenever the inquisitors considered this to be the case, all acts and words leading to such conclusion were to be scrupulously detailed in the records. Barcelona at the time had on hand a witch named Juana Rosquells, whom the physician and consultors considered to be out of her mind; not knowing what to do they referred to the Suprema, which ordered her discharge and somewhat inconsistently required her to be put under bail.[161] Even more tentative was the case of Toledo, in 1541, of Juan García, a day-laborer, favored with revelations of the wildest kind. In his audiences he replied unintelligibly to the questions asked and, when the case came before the consulta de fe, it summoned him and asked whether he would take a hundred lashes or confinement in a hospital. He very sensibly declined both, and the session terminated with a vote that his sanity be investigated. This was done in the most superficial way, the consulta de fe when reassembled voted to acquit him, with a warning that if he persisted in his wild talk he should have a hundred lashes, whether insane or not. He was accordingly told to be gone in God’s name.[162]

There evidently was as yet no method prescribed for dealing with such cases and it is somewhat remarkable that the Instructions of 1561 allude only to those, by no means infrequent, in which prisoners became demented during trial, and in these it is only ordered that they be provided with a curador, which infers that the trial was to be continued.[163] In conformity with this, at Granada, in 1665, a prisoner who had become insane after confessing, was furnished with a curador under whose auspices the case was carried to conclusion. He was condemned as a heretic and his property was confiscated; as he had confessed and begged for mercy while still in his senses, he was absolved from censures so that he might enjoy the suffrages of the Church, while as to the penances requiring sanity for their performance, such as reconciliation, abjuration, exile, etc., their determination was postponed till he should regain his reason.[164] When madness occurred after conviction and sentence, Peña tells us that the execution should be postponed until the reason is restored, for perhaps the culprit may repent and he is sufficiently punished by the madness. Even when it is feigned this should be done, for it is a less evil that the crime should be unpunished than to destroy his soul by putting him to death impenitent. In any event confiscation is to be enforced.[165]

When the accused was decided to be insane the plan adopted was to transfer him to a hospital, but in 1570 the Suprema required to be consulted before this was done. Hospitals were not always willing to receive such patients, but they were constrained to do so, as appears by an order of the Suprema in 1574, in such a case.[166]

The diagnosis of insanity is sufficiently obscure to modern science, and it is not surprising that the Inquisition experienced difficulty in protecting itself against attempts at imposition, which were regarded as frequent. Peña informs us that insanity was always looked upon with suspicion, as probably fictitious, but he can only suggest that the gaolers should keep careful watch, and the inquisitors threaten or employ torture, to which there was no objection, unless there was risk of death, and which was an effective means of detecting imposture.[167] There was, in fact, as we have seen, no hesitation in having recourse to it when other means failed, but it is to the credit of the Inquisition that it was ready to exhaust all its resources in doubtful cases, to determine the question of sanity, however much its ultimate conclusions might be warped by prejudice or preconceptions.

An exceedingly illustrative case was that of Benito Ferrer, a wandering beggar, wearing priestly garments, arrested in Madrid, August 24, 1621, by the archiepiscopal police and confined in the spiritual prison. He was about to be discharged when, on September 20th, while mass was being celebrated in the oratory, he sprang forward at the elevation of the Host, snatched it from the hands of the celebrant, crushed it and cast part of it on the floor, exclaiming “O traitor God, now you shall pay me!” The sacrilege of course caused the greatest excitement and indignation. The archiepiscopal court took cognizance of the matter and was about to discharge Benito as crazy, when the Inquisition claimed him and sent him to Toledo for trial, with orders to push the case. Before leaving Madrid he was examined by the commissioner, when he asserted his entire sanity and explained his act by asserting that the Host was not consecrated, for the priest and everyone else whom he saw were enchanted demons.

THE DEFENCE—INSANITY

Benito was undoubtedly a monomaniac for, in his subsequent audiences, he stated that, in 1609, he had been bewitched, since when everyone he met was a demon, with much other wild talk. His advocate asked for an investigation into his sanity, which was performed somewhat perfunctorily with the result that his extravagance was pronounced to be feigned. Still the consulta de fe, on November 23d, voted in discordia and the Suprema ordered further examination into his record and antecedents. Twenty years before, in his native Catalonia, he had endeavored to enter religion; two convents had refused to receive him and two others had expelled him after a few months. The tribunals of Valencia and Barcelona were set to work on these faint traces; the friars of that time were dead or scattered, but, after six months of search, two or three were found who vaguely remembered him as a melancholy person of little sense, who seemed to be possessed. Then followed further examinations of fellow-prisoners and physicians, concurring in the belief that his insanity was a fiction, and fruitless efforts were made to induce him to admit it. Another consulta de fe, held September 10, 1622, voted unanimously for relaxation, but the Suprema was not yet satisfied and ordered torture as a last resort. When the sentence was read to him he simply said that he was ready for what the Divine Majesty might be pleased to do with him. Then for three hours he was exposed to the extremity of torment, the blood dripping to the floor from his lacerated flesh, but, amid his shrieks and groans, nothing more could be extracted from him than “God suffered more; I am here to serve his pleasure” and an offer that, if they would give him a Bible, he would prove them all to be demons. If torture meant anything as a test, this proved his insanity to be real, but two days later a consulta de fe unanimously voted his relaxation as an impenitente negativo. Still the Suprema was not satisfied; it thought that the torture had been insufficient and it ordered him to be confined with persons of confidence, who should keep strict watch over him. Accordingly, on November 23d, his cell was changed and he was given as companions two friars and a physician awaiting trial, duly sworn and instructed. February 8, 1623, they were examined and pronounced him sane, but Dr. Antonio Gómez, who examined him, thought him liable to delusions; many persons, he said were sane in everything but one topic, on which they were insane. Still the Suprema hesitated and ordered continued observations, which were prolonged until November 4th, with the same result, when another consulta de fe unanimously voted for relaxation. The Suprema could hold out no longer against these repeated convictions; it confirmed the sentence and he was burnt alive as an impenitent, January 21, 1624.[168] Erroneous as the conclusion may seem to us, it was not reached without a prolonged and conscientious investigation, such as no other tribunal of the period would have given to such a case, though the archiepiscopal authorities were wiser, when they promptly recognized Benito’s madness.

THE DEFENCE—INSANITY

A nymphomaniac, in 1688, caused the Valencia tribunal an even longer term of perplexity. Francisca García was arrested, March 28th, as an alumbrada—one of the mystics against whom the Inquisition waged unrelenting warfare. She frankly admitted her sexual excesses, which she said were in obedience to the voice of God. During audiences at long intervals her talk was so irrational that insanity was suspected. Physicians were called in, who reported that she seemed to suffer from some mental weakness, and the alcaide said that he could not determine whether it was weakness or malice. Calificadores were consulted, who postponed for further decision the question whether she was hallucinated, crazy, or possessed. So it went on for two years and a half until, on September 19, 1690, it was resolved to keep her in prison but that, before presenting the accusation, another consultation with calificadores should be had. They examined her and reported that she cried aloud and wept and ejaculated and answered no questions directly, but still asserted that carnal indulgence was embracing God, so they reserved their opinions till another time. Eighteen months passed away and, in March, 1692, she sought an audience in which she threw herself on the ground and with tears begged to be taught; she knew that she ought to be content with her husband and, with screams and cries she declared that she could not resist temptation save with the aid of God. A consulta de fe was promptly held, and another in January, 1693, which could only recommend her detention, in view of the evils to be apprehended if she were allowed to communicate with others. Then two years and a half more elapsed, with occasional reports from the alcaide and secretary, to the effect that latterly the poor creature no longer talked lasciviously, in view of which it was voted, July 1, 1695, that the accusation should be presented and that calificadores should again examine her. To the report of this the Suprema replied in vigorous language, pointing out that this was only recommencing the eternal round, and that the case promised to be immortal; it ordered that the prosecution should be promptly carried on in the usual way and the sentence be submitted for its approbation. Here the record before us breaks off and the final action is unknown, but it is evident that the unfortunate woman was to be treated as responsible, the hesitation of the tribunal having only resulted in her incarceration for more than seven years in a dungeon (calabozo) where, if not insane at first, she probably became so in the darkness and despair of interminable confinement.[169] However humane intentions might be, prejudice and ignorance misled them to cruelty.

It marks a progressive improvement when, in time, it became customary, on receiving a denunciation, to interrogate the informer whether he knew if the accused was a drunkard or suffered from any mental disturbance and, in instructions to commissioners in taking testimony, these inquiries were directed always to be made. This was a praiseworthy precaution, and the modern softening of temper produced a marked improvement in the treatment of the insane. This is well exhibited in 1818, in the case of Pedro Benito Lobariñas, in which the Suprema ordered the Santiago tribunal to treat him with especial kindness, and to give him every comfort compatible with his safe-keeping. Confidential persons, as well as the physicians, are to be admitted to him, who in friendly talk could form an estimate of his mental condition, while investigations were also to be made at his place of abode. Still, the outcome of the case shows the conflict between humanity and extreme dread of doctrinal error. His offence was simply some “propositions” and, in view of his sanity in all else, and his experience as a garden laborer, he was to be handed over to the gardener of some convent so walled as to prevent his escape, and to forbid his speaking with any one, so that he might have no chance to disseminate his heresies.[170]

As for the other pleas in abatement, such as intoxication, sudden anger, thoughtlessness, ignorance, jocularity and the like, they could only be advanced in minor cases, like blasphemy and propositions not involving formal heresy. In such matters they were often alleged in extenuation and were given more or less consideration, according to the temper of the tribunal, the penalties, not infrequently, being moderated in consequence.

Defence, when the accused denied the charge, was practically limited to tachas and abonos—the former being the disabling of witnesses by proving enmity or other disability, the latter being the accumulation of evidence to prove good character and assiduous religious observance. The interrogatorio de indirectas, to secure testimony disproving or explaining away specific accusations, was occasionally employed, and sometimes flaws or contradictions in the incriminating evidence were exposed, or an alibi might be proved when time and place were specified in the publication, but these cases were exceptional. In the great mass of trials on serious charges, no attempt at defence was made except by tachas and abonos. To the latter little attention was usually vouchsafed, and the struggle, as a rule, was over the former.

EVIDENCE FOR THE DEFENCE

In this the defence was heavily handicapped by the suppression of witnesses’ names and the garbling of evidence in the publication to protect them from recognition. While occasionally the accused could identify one or two, in general he could only grope blindly and indicate persons with whom he had quarrelled, in the desperate hope that they might chance to be those who had given damaging testimony. Slender as was the prospect of accomplishing this, it was rendered additionally difficult by the obstructions placed in the way of his obtaining and presenting his evidence. He was permitted only to furnish the names of those whom he suspected, with a list of the witnesses on whom he relied to prove enmity and a series of questions to be put to the latter who, during the years of his incarceration might have died or disappeared. We have seen how rigid were the qualifications exacted of witnesses for the defence, so that the inquisitor exercised his discretion as to whom he would admit, nor was he bound to put any interrogations which he deemed irrelevant, or of which he disapproved—indeed, it was held to be the duty of the inquisitor to expurgate the interrogatories and if, in those of tachas, there was anything affecting the reputation of a married woman, or the limpieza of a family, it was to be struck out.[171] The whole matter was absolutely in his hands and he could even refuse to admit the prisoner to any defence, as in the case of Martin de Jaen, a Morisco, burnt in the Toledo auto de fe of 1606, or Manuel de Mesones, penanced in that of 1610, on the ground that what they asked for was unnecessary or irrelevant.[172] When defence was permitted, neither the accused nor his advocate had the privilege of examining such witnesses as were admitted, or of drawing forth all that they might have to tell. If they were residents of the city, the inquisitor would summon them; if at a distance, the interrogatories were sent to a commissioner; the witness, to each bald question, would answer yes or no, or perhaps might give some vague details or say that he knew nothing, and there the taking of testimony ended. If inquiries were directed against parties who had not testified, they were generally suppressed, although the instructions were to investigate them also, in order more perfectly to keep the accused in the dark, and it was also suggested that they be examined personally because, as enemies, they might have additional damaging testimony to give. When the witnesses for the defence, as frequently happened, were widely scattered, all this consumed considerable time, during which the prisoner in his cell was gnawing his heart in suspense, and when it was finished he was brought into the audience-chamber, curtly informed that what he had requested had been duly attended to, and asked if he had anything more to say. Under the Instructions of 1561, the results of the interrogations were carefully withheld from him as we have seen above (Vol. II, p. 543).

In this system, in which the burden of proof was thrown upon the accused, while he was crippled in every way as to the means of proving innocence, injustice could only be averted by judges acting virtually as counsel for the defence, in place of which they habitually served as parties to the prosecution. How it worked can best be understood by a few instances, with varying results.

In 1494, Diego Sánchez of Zamora was prosecuted for Judaism in the tribunal of Toledo. He had been trained, from his fourteenth year, in the cathedral, where he had risen, twenty years before, to the position of organist and beneficiary. There were but two witnesses against him—Pedro de Toledo, a chaplain of the archbishop, who testified to seeing him eat squabs on a Saturday and eggs in Lent and remove fat from meat. The other was María de Santa Cruz, a servant-girl, burnt for heresy, who on her way to the quemadero, being urged to clear her conscience by denouncing her accomplices, said that once when he was sick his father told him that he would not get well unless he sent some oil to the synagogue, whereupon he sent both oil and candles. She was beyond the reach of vengeance but, as usual, her name and the circumstances were suppressed. There is grim comedy in the efforts made by Sánchez and his advocate to unravel this story. They repeatedly requested the dead witness to be recalled and re-examined and to have the date fixed, for Sánchez had once been delirious for some days and it might have occurred then; a formal series of interrogatories was drawn up to be put to her, and eight witnesses were to be examined to prove the truth of the delirium, all of which the inquisitors met with profound silence. Then, in hopes of discovering all possible enemies who might have testified, a long series of quarrels was detailed which he had had with members of his family and others. In this he chanced to stumble upon María de la Cruz, who had been his servant, but was a thief and, becoming pregnant, had accused a man-servant of his as the father. He dismissed them both, but took back the man; the girl fell into evil courses and was scourged through the streets, which she attributed to him and repeatedly threatened revenge. He failed to identify Pedro de Toledo, but he proved an irreproachable career in the cathedral for twenty-five years, and he escaped with abjuration de levi and suspension for a year from celebrating mass—enough to dishonor him.[173]

EVIDENCE FOR THE DEFENCE

This hopeless floundering in the effort to rebut evidence of which the source was so carefully concealed appears still more strongly in the case of Diego de Uceda, in 1528, before the same tribunal, on a charge of Lutheranism, founded on a chance talk with a stranger at Cerezo, while travelling from Burgos to Córdova. The suppression of time and place and of details, in the publication, threw him on a false scent and he imagined the accusation to have arisen from a conversation some nights later at Guadarrama, with the Archpriest of Arjona, and all his energies were wasted on the attempt to prove that the latter talk was blameless, leaving the real testimony against him uncontroverted. It was a game at cross-purposes, in which the inquisitors allowed him to entangle himself hopelessly. Incidentally, the record affords a vivid picture of the agony of suspense endured by the prisoner in his cell during the inevitable delays arising from the method of procedure. He was chamberlain of Fernando de Córdova, clavero or treasurer of the Order of Calatrava; as such he had followed the court, and his witnesses in abono were necessarily scattered. Six months were consumed in finding them and securing their testimony, during which he sought repeated audiences, imploring the inquisitors for the love of God to despatch his case. At one time a second messenger was sent at his expense, to Burgos and to Valladolid, with long instructions, and he counted the days that it would take at ten leagues a day, the customary allowance for foot-couriers. At last he was summoned to an audience and told that all his witnesses save four had been examined and he could name others in their place. This he declined; he had produced ample testimony as to character but of course had failed to rebut the evidence of the unknown witnesses who had denounced him. As we have already seen, he was tortured, confessed and revoked and was sentenced to appear in an auto de fe, to abjure de vehementi, with a fine of sixty ducats and some spiritual penances, leaving him a dishonored and ruined man for a few careless words to a stranger.[174]

It is to the credit of the tribunals that they seem generally ready to make all effort necessary to obtain the testimony of the witnesses whom they admitted. In 1573, the Suprema orders the Barcelona tribunal to advise a French prisoner so that he could procure from the King of France a safe-conduct for the persons whom he sends thither to procure evidence for him, and the receiver is instructed to pay sixty-four ducats for the expenses of the commission—of course out of the sequestrated property.[175] In 1682, in the trial at Barcelona of Margarita Altamira, a worthless woman, she named as a witness a day-laborer whom she knew only as Isidro. He was hunted for in the city without success and efforts were made to trace him. In Cardona an Isidro Giralt was found and examined but proved not to be the man. Then it was thought that he might be somewhere in the parish of Maya, and the commissioner of Solsona was ordered to find him and send him and his wife to Barcelona, but the search was vain and no one of the name could be found there. Margarita was then asked if she could give any further indications to aid in finding him: she thought that perhaps María Barranco might know something, but on investigation María was found to be dead. Then she mentioned other witnesses who could testify to her good character, and they were duly summoned and interrogated.[176] All this was as it should be, but it depended on the temper of the tribunal and the prisoner had no power to help himself.

This customary defence of disabling the witnesses for enmity, although it was mostly blind groping to identify them, was sometimes successful. The most extensive use of the tacha that I have met occurs in the Toledo case of Gaspar Torralba, in 1531. His prosecution for Lutheranism was merely an effort to get rid of a troublesome and truculent neighbor, in the little village of Vayona, near Chinchon. There were thirty-five witnesses against him, for he was generally hated and feared. In his defence he enumerated no less than a hundred and fifty-two persons, including his wife and daughter, as his mortal enemies, and he gave the reason in each case which amply justified their enmity. In this comprehensive drag-net he succeeded in catching nearly all of the adverse witnesses and, in addition, he adduced abonos and indirectas to prove his orthodoxy and regular religious observance. The tribunal evidently recognized the nature of the accusation; he was admitted to bail, July 1, 1532, and finally escaped with a moderate penance.[177] Life must have been scarce worth living in Vayona when he was let loose.

THE DEFENCE

At Valencia, in 1604, there was quite a group of cases showing successful disabling of witnesses among Moriscos. Gaspar Alcadi, accused by two women of saying that he did not believe in Christianity, identified them and proved enmity, so that his case was suspended. One woman accused two men, Vicente Sabdon and Fay Vicente and three women, Angela Bastant, Angela Barday and Gerónima Alamin, but they all succeeded in fastening it upon her and showing her hostility, with the result of a suspension of prosecutions. In 1607 there were several more cases of the same kind.[178] A still more striking instance occurred in 1658, at Valladolid, when a dissolute woman accused three men and thirteen women of Sanabria as Judaizers. They seem to have found little difficulty in identifying and disabling her and were all acquitted, February 1, 1659.[179] In general, however, the records show that the main recourse of the accused, in seeking to identify and disable witnesses for enmity, was rarely successful.

After the wholesale forcible conversions of Jews and Moors a defence was sometimes advanced by the accused that he was not baptized and consequently not a Christian nor subject to the jurisdiction of the Inquisition. There were subtile questions involved in this, on which theologians were not wholly in accord, but in practice the main point turned on whether the fiscal was obliged to prove the baptism. Against this was urged a decree of Paul IV, in 1556, when some Portuguese in Italy defended themselves with this plea, and he ordered the prosecutions to proceed on the ground that, if they had not been baptized, they would not have been tolerated in Portugal. An old inquisitor, about 1640 says that in Saragossa he had a case of a Morisco who advanced such a plea and, on examination of his parish registers, no record of his baptism could be found, although there were those of his elder and younger brother. In spite of this, on the strength of the papal decision, the prosecution went on and his sentence of reconciliation was confirmed by the Suprema.[180]

In all this the function of the advocate was reduced to a minimum. He was to make no suggestions to his client except to confess; he was not to advise him to disable any of the witnesses or to name witnesses of his own. His sole duty, we are told, was to abandon a pertinacious heretic and to admonish a Christian to tell the truth. If he chanced to gain outside information, he was not to communicate it to the prisoner but to the inquisitors and, if any friend or kinsman spoke to him about the case, he was to say that he knew nothing of it. So, in the written defence which he was required to present, he could use no information of his own, for the accused alone could state facts, and the advocate could only set them forth. He could receive nothing from the prisoner or his friends, even after the case was ended; the tribunal fixed his fee, which was paid to him by the receiver.[181]

Under such circumstances the argument which he would frame was not likely to be of any benefit to his client. If he were young, bright and ambitious, he might endeavor to impress the tribunal with his ability, although the strict secrecy imposed deprived him of the incentive which publicity would give. For the most part, however, he would discharge his nominal duties with as little waste of energy as possible; he had nothing to gain by zeal, and would be careful not to offend the inquisitors and fiscal on whom he was dependent. While, therefore, we occasionally meet with a careful and well-reasoned argument, presenting the case of the accused in the most favorable light, and pointing out the irregularities and illegality and weakness of the evidence, in general the defence is perfunctory, of no real service to the accused, while ostensibly giving him the benefit of defence by a trained lawyer and enabling the tribunal to overrule what might be alleged in his favor.

EXAMINATION OF THE ACCUSED

Meanwhile, at each stage of the case, the accused was subjected to searching examination. By rule, this had to be conducted by the inquisitors, and if there were two, both were required to be present; as the Suprema declared, about 1520, this was necessary to enable them to vote intelligently.[182] The fiscal, very properly, was not allowed to be present, and the notaries or secretaries were ordered to confine themselves to their duties in recording and not to interpose questions. The general instructions for these examinations are praiseworthy. In 1518 the Suprema ordered the avoidance of superfluous questioning, as it might lead the accused to contradict himself through ignorance and, in 1529, as the result of a visitation of Saragossa, it rebuked the inquisitors for asking irrelevant questions instead of confining themselves to the subject matter, as required by the Instructions. The questions were to be clearly and intelligibly put, and the accused was to answer them categorically, yes or no. He was not to be deceived or misled by being made to believe that there was evidence where none existed, nor was he to be questioned about accomplices, unless there were sufficient indications concerning them.[183] Unlike the medieval Inquisition, where every kind of deceit was allowed to entrap the accused into compromising himself, the final rules, formally expressed by Pablo García, were that the inquisitors must carefully abstain from interrogating the prisoner about matters not included or indicated in the evidence, and from leading him to believe that mere suspicions were knowledge founded on proof.[184] Yet, with marked inconsistency, the monitions with which the trials opened, assumed, as we have seen, the guilt of the prisoner, that ample information existed of it, and that his confession was wanted for his own salvation.

As a rule, in these earlier audiences, no questions were put except to ask the accused what he had remembered, and he was left to spontaneous confession, without a guide as to what was expected of him. Sometimes, however, in the later periods a special audiencia de preguntas was ordered, which might last for several days, as in the case of Beatriz López, at Valladolid, in 1697.[185] Ordinarily the real examinations began when the accused answered to the accusation, and were continued after his replies to the publication. At any time, moreover, if he made admissions or a partial confession, the opportunity was taken, by skilful questioning, to bring him, step by step, to full acknowledgement of his offences. In this, leading questions were forbidden. All examinations were to be searching and thorough and, in 1654, the Suprema complained that many crimes remained unpunished because of the carelessness and looseness with which this duty was performed. Inquisitors in general were, therefore, instructed to repeat their questions again and again, until every detail of time, place and circumstance was ascertained.[186]

When the prosecution and defence had thus exhausted all their resources, the latter was required to conclude and the case was pronounced to be concluded, although the fiscal could open it again, if new evidence appeared, and the accused could appeal from this as from all other sentences. It was then ripe for judgement, but the inquisitors were not authorized to pronounce sentence alone. The necessity for episcopal concurrence required the intervention of a representative of the bishop of the prisoner’s diocese and, in addition, the rule of the Old Inquisition was preserved under which some graduates in law and theology were assembled to deliberate and vote with the others. These were called consultors and we have seen that they were a recognized portion of the inquisitorial organization. The whole body formed what was known as the consulta de fe, in whose hands lay the fate of the accused. The number of consultors was uncertain. In 1488, at Barcelona, we hear of a consulta in which five masters of theology and five doctors of canon law were called in, and of another in which there were twelve of each, but such assemblies were unwieldy and, in 1596, the Suprema restricted the number to two theologians and three jurists. There was a scandalous practice allowed by the Instructions of 1561, of having the fiscal present without a vote, in order to give information—information which would be apt to expand into argument. Subsequently this seems to have been confined to some tribunals, but in all he could be called upon to elucidate any doubtful point, either orally or in writing.[187] No such privilege was allowed to the accused. Even lawyers who served as abogados de los presos were declared, in 1538, to be ineligible for service as consultors.[188]

THE CONSULTA DE FE

In the imperfect records of the early trials, there is often no allusion to a consulta de fe, although the sentence generally contains the customary formula that it has been rendered with the advice of learned and God-fearing men. Even this is sometimes omitted, but it is probable that the formality was usually observed although, in the haste of those terrible days, it was, as a rule, little more than a formality. The ordinary custom was to assemble a consulta when a sufficient number of finished cases had accumulated to render an auto de fe desirable, and it could scarce find time for a conscientious scrutiny of the evidence. How business was sometimes despatched is seen in the preparations for the great auto de fe at Ciudad Real, February 23, 1484. Among the victims were Juan de Fez and his wife, on whom the consulta passed sentence, January 28th, although Juan had only confessed, under threat of torture, the day before, and it was not until February 6th that he ratified his confession, so that the condemnation was pronounced before the case was finished.[189] Yet discussion was not wholly wanting. In the case of Diego García, at the consulta held January 18, 1490, eight voted for torture and three for perpetual prison, but at a meeting next day they were unanimous for torture, which Diego endured without confession and thus escaped with moderate penance.[190]

In those early days it was possible, as the records inform us was done, to read the whole case from beginning to end, for, in those hurried proceedings, the records were brief. In later times when the documents of a trial extended perhaps over hundreds—or it might be thousands—of folios, this was manifestly impossible, and there was submitted to the consulta only an abstract containing what was deemed important, when of course it would be within the power of the tribunal to present it in such fashion as it desired. There was a salutary limitation on this by the Suprema, in 1560, when it forbade the preparation of these abstracts by the fiscal, but the necessity for such prohibition is suggestive of existing abuses.[191] Occasionally the consulta exercised the power of summoning and examining the accused, as we have seen in the case of Juan García, in 1541, when there were doubts as to his sanity. It did the same with Juan Vázquez, at Toledo in 1605, which resulted in dismissing the case.[192]

Whether, in these assemblies, the consultors had a deliberative or merely a consultative vote, was a matter of some discussion. In 1515, Cardinal Adrian, and in 1518 the Suprema, instructed inquisitors that though they must not render judgement without consulting jurists, they need not follow their advice, but could consult others and state the reasons for rejecting the previous opinions.[193] Arnaldo Albertino, on the contrary, after debating the question at length, decides that, under the canon law, inquisitors are bound by the majority vote.[194] This ignored the self-dependent organization of the Spanish Inquisition, and Rojas asserts positively that the vote of the consultors is consultative and not decisive.[195] Simancas decides that the true rule is that the inquisitors are not bound by the opinion of the consultors, although the question is debated; the Suprema instructed the tribunal of Córdova that, if the inquisitors and Ordinary are in accord, their opinion prevails over that of all the consultors, yet in Valladolid, unless there is a majority, even if the inquisitors and Ordinary agree, there is discordia and the case is referred to the Suprema.[196] All this was settled by the Instructions of 1561, which declared that, if the inquisitors and Ordinary were unanimous, their vote was decisive against consultors more numerous, but that, whenever there was discordia between the former, the matter was to be referred to the Suprema and, in important cases, even when there was unanimity, it was to be consulted before executing the vote.[197]

DELAYS

We have seen how the gradual centralization in the Suprema required all sentences, whether of torture or judgement, to receive its confirmation. Under this influence the consulta de fe declined in importance, and tribunals began to neglect the formality of summoning it or even of appointing consultors. The concurrence of the Ordinary was theoretically indispensable, but that sufficed, and the Suprema was quite content to overlook irregularities which marked the diminishing importance of the tribunals. Thus, in 1717, at Barcelona, in the case of Dr. Estevan Perpiñan for impeding the Inquisition, the Ordinary could not attend and the inquisitors voted on it alone; they could not agree on a sentence, and the Suprema sent the case back with orders to vote on it again, in conjunction with the Ordinary; they did so, but this time all three disagreed and the Suprema finally rendered the sentence.[198] It seems never to have thought of instructing them to call in experts and form a consulta de fe. Thus the time-honored institution, coeval with the establishment of the Inquisition in the thirteenth century, came to an end. In a series of votes of the tribunal of Madrid, extending through the eighteenth century, there is no indication of consultors being called in. Sometimes there are two inquisitors with the Ordinary and sometimes one; sometimes two inquisitors without the Ordinary, and occasionally, though rarely, a single inquisitor by himself.[199] In the enumeration of the personnel of all the tribunals, about the middle of the century, the insignificant one of Majorca had eight consultors, Granada had four, Córdova three, Valladolid, Cuenca and Santiago one each and the others had none. The institution was rapidly dying out and men no longer aspired to the honor of belonging to it. So it was under the Restoration. In the sentences of the period which I have seen there is no reference to it save in some pronounced by the Canary tribunal, which have the clause “without a consultor because it is united in the Ordinary.”[200]

Before the Suprema had rendered the tribunals mere agencies for collecting evidence and attending to the formalities of trials, the consulta de fe may occasionally have been of service in preventing or diminishing injustice. Incidents related above show that the consultors formed opinions of their own, and that the votes were often far from unanimous. This was encouraged by the routine of voting, in which the consultors voted first and the senior inquisitor last, although doubtless, when there had been a preliminary discussion, the views of the inquisitors had been made known. Occasionally we meet with debates in which each member of the consults accompanies his vote with an exposition of his reasons, and sometimes even with elaborate written opinions, showing a conscientious expenditure of thought and labor. Unfortunately, doubts and disagreements generally were compromised by recourse to torture, after which the consulta would be reconvened to formulate the definitive sentence.

Not the least cruel feature of the inquisitorial trial was the interminable delay to which the victim was commonly exposed. In ordinary criminal practice, especially in capital cases, the accused may seek perhaps to postpone the evil day, but in the Inquisition, where he was denied all communication with the outside world, and was kept in ignorance as to the progress of his own case, the agony of suspense concerning himself and those dear to him during dreary months and years was, in itself, a most severe and protracted punishment. This was thoroughly understood, not only from the repeated despairing cries of prisoners to have their cases despatched, but from the habitual promise of such despatch held out as an inducement for confession. The slow torture of delay was a well-understood device of the Old Inquisition to procure confession, when five, ten, or twenty years’ interval between arrest and sentence was not infrequent,[201] but, except in special cases, this would not seem to be the motive in Spain. It is rather attributable to callous indifference and the habit of procrastination. The prisoner was presumably guilty and no good Christian need waste sympathy on the sufferings, mental and bodily, of a heretic too pertinacious for confession and conversion.

In Spain, speedy justice was constantly urged on the tribunals as soon as the mad rush of the early years was over. While this lasted such urgency was superfluous, for haste was necessitated by the enormous amount of work to be done, and was stimulated by impatience for the fines and confiscations, though the formalities of procedure were cumbrous and there were multitudes of cases jostling each other as they wore through their several stages. In the great auto de fe at Ciudad Real, February 23, 1484, where there were seventy-six burnings in person or in effigy, besides the large number of reconciliations, there could have been no time wasted on each case. Among those relaxed was Juan González Daza, whose trial commenced December 1, 1483, when the inquisitors granted nine days for presenting proof. On December 10th, the fiscal asked an extension of time in view of his other occupations and the absence of witnesses, but he was obliged to take an oath that these were his reasons and not malice. On December 8th evidence for the defence was already being taken before two deputies of the inquisitors and, on the 12th, that for the prosecution before two other deputies. Considering that human life was at stake, the work was most expeditious.[202]

Possibly this speed soon slackened; whether it did so or not, the Suprema was dissatisfied, for the Instructions of 1488 ordered that prisoners should not be worn out in gaol with postponements, and proceedings must be so prompt as to afford no cause of complaint. This urgency was repeated in the Instructions of 1498, which fixed a limit of ten days between arrest and the presentation of the accusation, during which the three monitions were to be given; after this cases were to be pushed with all despatch and without awaiting further proof, for this had led to prolonged detention, causing injury to persons as well as to property. Again, in 1500, the tribunals were ordered to proceed summarily and not to permit delays—all these instructions showing that the procrastination was attributable to the prosecution and not to the defence.[203]

DELAYS

These instructions received scant obedience and the delays were felt as a serious grievance by the accused. In 1510 we have a petition to Ferdinand from five women appealing for a speedy decision of their cases, which had been “concluded,” to which he responded by ordering the inquisitors to expedite them in accordance with justice.[204] So among the Aragonese petitions at the Córtes of Monzon, in 1533, is a complaint that the prisoners of the Inquisition were vexed with the prolonged delays in giving them the accusation and postponing the publication of evidence, wherefore the inquisitor-general was prayed to prescribe briefer terms. To this the reply was merely that provision would be made for the good administration of justice and the speedy disposition of cases.[205]

If there were any intention of fulfilling this promise it was resultless. Procrastination was habitual in all Spanish tribunals, as we learn from the repeated remonstrances of the Castilian Córtes of the period, which vainly represented that pleaders were impoverished and exhausted in the vain attempt to obtain justice, and that the gaols throughout the land were crowded with prisoners.[206] The Inquisition shared in this indifference to the sufferings of those in its hands; there were causes of delay in ratifying evidence and looking up the witnesses for the defence, and it had besides a practice, in all cases serious enough to appear in an auto de fe, of allowing them to accumulate until there were enough to render the solemnity impressive. This abuse was forbidden by the Suprema in 1518, 1532, 1539 and 1540, but its commands were disregarded.[207] That it was a real grievance is shown by a summons addressed, in 1534, by the Toledo fiscal to the Vicar-general Blas Ortiz, reciting that it was four years since the tribunal had celebrated an auto de fe; its prisoners were suffering much thereby in person, honor, and property, and the Inquisition was defamed in consequence. On the part of the accused and their kindred there had been bitter complaints to the inquisitor-general and Suprema, to the emperor and royal council, and to persons of influence, and three or four months ago the Suprema and inquisitor-general had come to Toledo to see what was the matter and had ordered the cases to be despatched and an auto de fe to be held. When, however, we learn that the concurrence of the vicar-general was needed only for the torture of nine persons and the sentencing of ten, we see how little occupation the tribunal had had during those four years, rendering the delay inexcusable, while moreover the effort to shift the blame on Blas Ortiz was transparent for, under the Clementines, inquisitors were required to wait only nine days for the Ordinary.[208] The custom of waiting for an auto de fe continued and if, in 1570, 1571 and 1577, there were repeated orders that the cases of poor prisoners should be despatched promptly, without holding them for an auto, this urgency savors more of thrift than of mercy, for it infers that the rich, who could defray their prison expenses, might linger.[209]

DELAYS

The provision that the accusation should be presented within ten days after arrest was repeated in 1518 and seems to have been considered as still in force in 1594, for its observance is included in interrogatories prepared for a visitation in that year, but the Instructions of 1561, while requiring the fiscal to present it within that limit, give discretion to the inquisitors as to the time of admitting the prisoner to an audience after his arrest, and prescribe no definite intervals between the monitions.[210] This discretion was abused to the utmost and the Suprema seems to have abandoned all effort to check procrastination, except in special cases which threatened to become immortal. The tribunals kept their unfortunate prisoners lying for months before granting the first audience and, as this required no preparation, its postponement was mere callous indifference without excuse. In a group of eight cases at Valladolid, in 1647, a year was allowed to elapse between the arrest and first audience, and subsequent intervals, varying from one month to eight, before the third monition which was synchronous with the accusation.[211] When there was this heartless delay at the commencement of a case, it is not to be supposed that there would be any alacrity in speeding the subsequent stages of the cumbrous routine, or any conscientious awakening from the supine indifference of the tribunals, with their multitude of officials and diminishing work. I have already alluded to the Mexican case of Joseph Brunon de Vertiz, in which there was nothing to prevent a regular and speedy course of action; and a brief abstract of the successive steps of his trial will show how he was tortured through suspense and anxiety to death. Between January 25, 1650, and his end on April 30, 1656, he was but once summoned to an audience and then it was only to ask him whether he had anything more to say.[212] Similar examples can be cited in the Peninsula. Gabriel Escobar, a cleric in the lower Orders, was arrested by the Toledo tribunal in 1607, on a charge of Illuminism and, in 1622, he died in prison, leaving his trial unfinished.[213] On a similar charge, Vicente Hernan was arrested in Valencia, September 23, 1592, and on August 25, 1695, the Suprema took the tribunal to task, because the accusation had not yet been presented, and pointed out that two years and a half had elapsed since his last audience, and the case was no nearer an end than before.[214]

This procrastination continued to the end. A writer, about 1750, attributes the endless prolongation of the trials to the inefficiency of the inquisitors, and this again to the meagreness of the salaries, which prevents the selection of capable men, but the Suprema itself was frequently to blame by its delay in acting when everything had to be submitted to its approval. Thus when the Logroño tribunal sent to it, September 9, 1818, a sumaria, on statement of the evidence, against Fernando de la Hoceja for irreverence to the sacrament, it was not until June 9, 1819, that it ordered prosecution and, when Valladolid proposed, November 12, 1818, to grant audiencias de cargos to Lazaro Matilla, this was not confirmed until June 15, 1819.[215]

Prosecution of the absent and of the dead formed, especially in the earlier period, a large part of the work of the Inquisition. The sudden development of systematized persecution naturally caused the exodus of thousands of Conversos, in spite of the arbitrary measures adopted to prevent their escape, while the details adduced in the trials furnished evidence against other thousands, who had died in external orthodoxy. It was no part of the policy of either Church or State to condone the offences of the fugitive or of the dead. If the faith could not be vindicated by burning their bodies, it could at least exhume the bones of the departed for cremation and could symbolically consume with fire the effigies of those of whom neither the bodies nor the bones could be had, while the fisc gathered in the confiscations which followed on condemnation, including the collection of debts and the forfeiting of alienations.

PROSECUTION OF THE DEAD

In this there was nothing repugnant to the spirit of the age, or of the Latin systems of jurisprudence. In the spiritual sphere the Church had long been accustomed to pass judgement on those who had passed to the judgement-seat of God, and to exhume the remains of any heretic buried in consecrated ground.[216] The imperial jurisprudence was equally unforgiving in cases of majetas, or treason, in which the dead could be prosecuted and their estates be confiscated, and the Theodosian Code extended this to heresy.[217] As recently as 1600, in Scotland, the bodies of the Earl of Gowrie and his brother were brought into court to be present at their trial, and were duly sentenced to be hanged, quartered and gibbeted; in 1609, Robert Logan of Restalrig, three years after death, was accused of complicity in the Gowrie conspiracy, when his bones were exhumed to grace the trial in which he was convicted and his estate was confiscated.[218] As regards fugitives, in the Continental systems of criminal law it was regarded as absurd to allow contumacious absence to defeat justice. In Aragon the absentee was summoned at his domicile to appear within fifteen days, after which he was reputed contumacious and his trial proceeded, but he had the right, even after sentence, to return and appeal, on reimbursing to the accuser his expenses.[219]

The abundant harvest thus provided for the early Inquisition may be estimated from the statement by a contemporary that, at the Toledo auto de fe of July 25, 1485, there were burned the effigies of more than four hundred dead and as many in that of May 25, 1490. The ceremony was impressive. A great monument, covered with black, was erected in front of the staging occupied by the inquisitors. The sentence of each culprit was read and, as his name was called, the monument was opened and an effigy, arrayed in Jewish grave-clothes, was brought out and condemned as a heretic. Then a great fire was built in the centre of the plaza, and all the effigies were consumed, together with the disinterred bones. After this their names were announced in the cathedral, with a summons to the heirs to appear, within twenty days, and render an account of their inheritances which belonged to the king.[220] We might suspect these figures of exaggeration were there not other evidences of the magnitude of the work in progress and of the informal haste with which it was conducted. In 1484, at Ciudad Real, a single proclamation to the children and heirs, to appear and defend the deceased, contains the names of sixty-one dead persons on trial and a single sentence condemns forty-two, with a common enumeration of the Judaizing practices asserted to be proved against them. In none of these cases did the children and heirs put in an appearance to defend the memory and fame of the dead.[221]

These reckless and indecent proceedings were based on the Instructions of 1484, which evidently reflect the current practice in ordering the prosecution of those who had been dead even for thirty or forty years, and their property with its fruits to be taken from whomsoever is found in possession, although a MS. copy contains a clause, omitted in the printed editions, exempting from confiscation property held in good faith by good Catholics, for fifty years or more.[222] In view of the activity at Ciudad Real and Toledo, it seems somewhat superfluous that Torquemada, in his supplementary Instructions of 1485, deemed it necessary to warn the tribunals that the prosecution of the living should not cause them to neglect the dead, so that their bodies may be disinterred and burnt and their property be seized by the fisc.[223] How far back the retroactive energy of the tribunals extended may be gathered from the case of Fernan Sánchez who had been converted about 1416, had lived as a Christian until his death in 1456, and who yet was disinterred and burnt and his estate confiscated by the tribunal of Cuenca and Sigüenza, probably about 1525.[224]

PROSECUTION OF THE DEAD

Notwithstanding the massing of cases in the citations and sentences, the formalities of the somewhat cumbrous procedure were duly observed. The trials were not speedy, but, as large numbers were in progress together, only the scantiest attention could be paid to each and the result was a foregone conclusion. A single case will illustrate the process. At Ciudad Real, August 8, 1484, the fiscal is recorded as appearing and saying that he desires to proceed against certain deceased persons and among them Beatris González. He asks the inquisitors to issue their letters of summons, citation and edict, so that the children, heirs, kindred and others who wish to defend their bodies and bones, their fame and property, may appear. The same day the edict is issued, directed to the representatives of Beatris and two others, some of the kindred addressed being named and others included under the generalization of parties interested. The edict recites that the fiscal is about to accuse Beatris and the others of Judaism, and asks to have them summoned in defence, wherefore they are cited to appear within thirty days after the edict is read to them, or before their house-doors, or published in the public square, or read in the church of San Pedro and affixed to one of its doors; if they come, they will be heard with the fiscal, and justice will be rendered; if they do not appear, the fiscal will be heard and the case will go on without them to the end. The thirty days constituted three terms of ten days each, at the end of each of which the fiscal appeared before the inquisitors and accused the rebeldia or contumacy of the parties cited and, at the end of the third, on September 6th, he presented the accusation, a copy of which was ordered to be given to the children, with nine days in which to answer it. At the expiration of this time, on September 14th, the fiscal accused the further rebeldia and concluded; the inquisitors received the case to proof and assigned thirty days for it. On October 20th, the fiscal presented four witnesses, who were separately and secretly examined by the inquisitors, the testimony consisting of the usual details of observing the Sabbath by lighting candles and wearing clean linen, with an intimation of having chickens killed by decapitation. Then followed an interval, until January 18, 1485, when the fiscal asked for publication of evidence. The inquisitors granted this, ordering copies given to him and to the children if they ask for it, and assigning a term of six days for concluding. On January 24th the fiscal accuses the persistent rebeldia and concludes; the inquisitors hold the children to be contumacious and conclude the case, assigning for sentence the third or any following day. All this was in preparation for the great auto de fe of March 15th, where the sentence was read, condemning in mass a large number of the dead, confiscating their property and ordering their bones to be dug up and burnt.[225] This was the procedure under which thousands of the dead were condemned and their properties seized from the existing owners; the forms of justice were comfortably preserved; no heirs or children ventured to appear in defence, and the condemnation might as well have been pronounced at the beginning.

This facility offered temptations to act on insufficient evidence and occasionally, when persons of importance were concerned, there was a contest, as at Saragossa where, on March 10, 1491, the fiscal presented his clamosa against a number of the dead, whose representatives defended them with persistent energy until December, 1499, when there were eight condemnations and three acquittals.[226] Some check on the abuses inevitable to the system was attempted, in the reformatory Instructions of 1498, which order that no prosecution of the dead is to be commenced unless there is proof sufficiently complete for condemnation; the practice of suspending cases where proof is imperfect is prohibited, in view of the hardship endured by the heirs, who are unable to marry or to dispose of their property and, under such circumstances, acquittal is ordered. Procrastination and delay are also forbidden, and cases must be determined speedily.[227]

PROSECUTION OF THE DEAD

Sequestration under these circumstances inflicted great suffering until, as we have seen, in the Instructions of 1561, it came under the general prohibition of sequestrating property in the hands of third parties. By this time, prosecution of the dead had shrunk to an inconsiderable part of inquisitorial business, and this may possibly account for other ameliorations in procedure. The preliminary necessity of sufficing proof was insisted upon; pains were to be taken to ascertain whether there were descendants, so as to cite them in person; no one who appeared as a defender was to be refused, even though he might be a prisoner on trial, who could empower a representative; if no defender appeared, the inquisitor was to appoint a skilful and sufficient person, who was not an official of the tribunal.[228] By this time, also, another rule had established itself which diminished the number of prosecutions—that they could only lie for formal heresy. Crimes involving suspicion of heresy, such as fautorship, receiving and defending heretics and many others, were excluded, for the reason that suspicion, however violent, was held to be extinguished by death.[229] It was also generally admitted that stronger proof was required for prosecution of the dead than of the living because, as Rojas explains it, semiplena or half-proof, suffices for the latter—apparently alluding to the fact that the dead could not be tortured.[230]

If they could not be tortured, so neither could they save themselves from relaxation by confession and abjuration. This naturally resulted in burning in effigy, except in the case of death during trial, when, if the prisoner had manifested repentance and sought readmission to the Church, his effigy was solemnly reconciled in the auto de fe, nor does this somewhat grotesque ceremony appear to have aroused a sense of incongruity. Death in prison, as we have seen, was by no means infrequent and, as the cases when once commenced were continued to the end, they furnish, during the later period, a considerable portion of the prosecutions of the dead. Suicide in prison was held to be confession of guilt and pertinacity.

The sentence pronounced on the dead was even more impressive than that on the living. It declared him to have lived and died a heretic, his memory and fame were condemned and his property was confiscated. “And we order that, on the day of the auto, an effigy representing his person shall be placed on the scaffold, with a mitre of condemnation and a sanbenito bearing on one side the insignia of the condemned and on the other a placard with his name, which effigy, after the reading of this our sentence, shall be delivered to the secular arm and justice, and his bones shall be disinterred, if they can be distinguished from those of faithful Christians, and be delivered to the said justice to be publicly burnt, in detestation of such great and grievous crimes. And, if there is any inscription on his tomb, or if his arms are anywhere displayed, they shall be erased, so that no memory of him shall remain on the face of the earth, except of our sentence and of the execution which we order in it. And, that it may the more remain in the memory of the living, we order that the said sanbenito or one like it, with the said insignia and name of the condemned, shall be placed in the cathedral or parochial church of ——, of which he was parishioner, in a prominent place where it shall remain for ever. Moreover we order that the children and the grandchildren by the male line, be deprived of all dignities and benefices and public positions that they possess, and be incapacitated for others, as well as to ride on horseback and carry arms and wear silk, camlet and fine cloth, gold, silver and corals and other things forbidden by the laws.”[231]

We have already seen how numerous, in the opening years of the Inquisition, were the trials of absentees, as shown by the burning of their effigies in the autos de fe. This arose not only from the flight of those alarmed by the activity of persecution, but also from the investigation of the records of all who, for years before, had changed their places of residence or had betaken themselves to the Moors of Granada or beyond seas. This proportion of the early period was not maintained after the first hurried rush of expatriation was past, but still there continued to be many cases. When a Judaizer or Morisco was arrested, all who had been associated with him recognized the impending danger and, if there was possibility of concealment or of leaving the country, prudence counselled absence. The Inquisition sought energetically to trace those against whom evidence was obtained and, if it failed, it prosecuted them in absentia. In some respects this procedure differed from that in prosecution of the dead.

PROSECUTION OF THE ABSENT

The Instructions of 1484 give minute and precise details with regard to it, pointing out three courses which may be followed. The first is recommended as the safest and least rigorous and is that furnished by the canon law in Cap. Contumaciam (Cap. 7, Tit. 2 in Sexto Lib. v) which provides that, as contumacy renders suspicion vehement, a man who is suspect in the faith is to be excommunicated, when, if he remains under the censure for a year, he is to be condemned as a heretic. Under this process, which conveniently converted suspicion into formal heresy, justifying condemnation, testimony was superfluous and conviction certain, so that, although it cost some delay, we can understand the preference expressed for it. It simply required the party to be summoned, with the customary monitions, to defend himself in matters of faith and a special charge of heresy, under pain of excommunication. If he did not appear, the inquisitor ordered the fiscal to accuse his contumacy and to demand letters denouncing him as an excommunicate and then, if he persisted in his contumacy for a year, he was declared a formal heretic. The citations were made by the customary edicts, proclaimed and affixed to the church-doors of his domicile, and the excommunication was published in the churches with the customary solemnities.

The second method was more speedy and was adapted to cases where the heresy could be completely proved. The accused was cited by edict to appear and prove his innocence, with steps similar to those used in summoning defenders in prosecutions of the dead; when the terms allowed were passed, if the evidence was conclusive, the absentee could be condemned without further delay.

The third process was suitable for cases where the evidence, though incomplete, justified vehement presumption. An edict was issued against the accused summoning him to appear within a specified time and furnish canonical purgation, with notice that, if he did not present himself, or if he failed in his purgation, he would be held as convicted and be treated accordingly. This was the simplest and speediest, but the Instructions say that, although rigorous, it was well grounded in law, and inquisitors, at their discretion, could adopt either of the three courses as best adapted to the case in hand.[232]

The first of these methods, utilizing the device of contumacy became the one almost universally employed, when time was of no consequence but, in the impatient temper of the early period, speedier processes were preferred. The case of Sancho de Ciudad and Marí Díaz his wife, was tried by the second process and will serve as an illustration. Sancho was regidor of Ciudad Real and a well-known citizen. On November 14, 1483, the fiscal represented that many persons defamed for heresy had fled from the Inquisition, among whom notoriously were Sancho and his wife, whom he intended to accuse, and he asked the inquisitor, on receiving due proof, to cite them to appear. Two witnesses then deposed that it was notorious that they were absent and, as they had departed about fifteen days before the Inquisition came, it presumably was through fear. The edict was issued and the case took its course, all citations and summonses being gravely pronounced before Sancho’s house by a notary as though he were personally on trial. When the case reached the stage of proof, the fiscal presented thirty-four witnesses—the most damaging one being Sancho’s daughter Catalina, who gave the names of her brothers and of numerous others accustomed to assemble in her father’s house to participate in Jewish ceremonies. All the formalities of the trial were observed and duly notified before Sancho’s door. By January 22, 1484, the consulta de fe voted for relaxation, which Sancho was duly summoned to hear read, and it was read in the audience-chamber, January 30th, empowering the authorities of any place, where Sancho and his wife might be found, to inflict on them the penalties of the law, and meanwhile, as their persons could not be had, it ordered their effigies then present, to be subjected to the execution of the said penalties.[233]

PROSECUTION OF THE ABSENT

If there is something grotesque in all this, at least the proceedings were decently in order and, if Sancho and his wife had cared to risk it, they could have been heard. How hurried and informal the process sometimes was is manifested by a case at Guadalupe in 1485. On July 13th three witnesses were heard as to ten persons who had left that place from twelve to sixteen years before, and of whom public fame reported that they had gone to Málaga or to some other Moorish town, and had turned Jews. On July 21st the fiscal presented his accusation, asking for sentence without previous citation or other notice, because by law in such cases and crimes of heresy, when notoriety is proved, nothing further is required. This was expressly assented to in the sentence, although it alluded to some kind of citation with three terms, published in the plaza and affixed to the church-doors, and also to a consulta de fe, but all this was probably mythical for, in an auto de fe held on August 1st, seven of the parties were included in one sentence, their effigies were relaxed to the secular arm and their property was declared to be confiscated, while judges everywhere were empowered to seize and proceed against them.[234] Neither of the three methods described in the Instructions of 1484 could have been employed in the interval of eighteen days between denunciation and execution, but, as one of the inquisitors was Francisco de la Fuente, an experienced judge from the tribunal of Ciudad Real, we must presume that there was nothing irregular in this quick despatch.

Although in these sentences the condemned is abandoned to any secular justice for burning, the whole proceeding was merely designed to secure the confiscations and enhance the solemnities of the autos de fe with additional comburation of effigies. Its nullity in other respects was admitted by the rule that, if a culprit who had been burnt in effigy should return spontaneously, confessing and repenting, he could be admitted to reconciliation or, if he asserted his innocence, he was to be heard in his defence. This was decreed by Torquemada, October 10, 1493, with the reservation that it was a matter of grace and did not affect the confiscation. In 1494 there was a further provision that, if the condemnation had been the result of false-witness, it was the duty of the inquisitors to revoke the sentence ex officio, without awaiting the appearance of the convict.[235]

No change of importance was introduced in the procedure by the Instructions of 1561. In practice, the prosecution for contumacy was the one ordinarily employed; the second method was sometimes used when the testimony was complete and the third, summoning the accused to compurgation, became obsolete. The formula of the sentence, in the first method, avoids all allusion to the crimes alleged against the accused and bases the condemnation wholly on his remaining for a year under excommunication, thus proving himself to be an apostate heretic, the penalties for which are to be executed on his person, if it can be had and, in his absence, upon the effigy representing him.[236]

Of course condemnation to the stake was inevitable, when once the process was commenced, whether there was substantial evidence against the accused or not. Some authorities held that, whenever he could be caught, he was to be burnt, but Simancas expresses the considerate practice of the Inquisition in assuming that he is entitled to a hearing, whether he presents himself spontaneously or is captured, for there is no prescription of time against defence; if he comes within a year he can plead against confiscation, but after the year he can be heard only as to himself, unless he is manifestly innocent or has been detained by a just impediment.[237] It may justly be doubted whether any fugitive was ever burnt for contumacy, and the ordinary practice is seen in the case of nine Judaizers of Beas, whose arrest was ordered by the tribunal of Murcia, April 5, 1656. When the warrants reached Beas, April 12, they were found to have departed secretly about the end of February. Five of them were traced to Málaga and four were reported to have gone to Pietrabuena, but all efforts to capture them failed and, on July 27th, the fiscal asked for edicts of citation. The regular process in contumacy followed leisurely, ending in a sentence of relaxation if the culprits should be found and if not, that their effigies should be burnt. This was confirmed by the Suprema and was pronounced December 5, 1659, and executed April 13, 1660, in an auto de fe at Seville. Nearly twenty years later two of the fugitives, Ana Enríquez and her husband Diego Rodríguez Silva, were arrested at Daimiel. They were tried anew; the previous records were brought from Murcia and used, as well as evidence concerning their career during the interval. There was no thought of executing the former sentence; the consulta de fe voted for reconciliation with two years of prison and sanbenito, which the Suprema changed to perpetual irremissible, and it was duly published in an auto de fe of December 17, 1679.[238]

BURNING OF EFFIGIES

Dilatory as were the proceedings in absentia in this case, they were speedy when compared with some others. The Valladolid tribunal issued a warrant of arrest against the Capitan Enrique Enríquez, June 6, 1650, but he eluded it. His trial for contumacy dragged on until July 30, 1659, when sentence was rendered, confirmed by the Suprema November 24th and sent to Seville, to be executed in the auto de fe of April 13, 1660.[239] It would appear that these delays did not please the Suprema for, in 1666, it called upon the tribunals to report the sentences agreed upon against the absent and dead and to push forward all unfinished trials. To this Barcelona replied that it had in hand three cases of absentees guilty of “propositions,” two of bigamy, one of a fraile who was said to have fled to France in order to embrace Protestantism, and another of a dead Huguenot—all of which would indicate that these cases constituted a considerable portion of the diminishing business of the tribunals. The Suprema thereupon ordered that if, on examination, prosecution appeared to be called for, the cases should be followed up closely to a vote in the consulta de fe, which was to be submitted to it for decision.[240]

Effigies of the dead and absent continued to be one of the attractions of the autos de fe. In the great Madrid celebration of 1680, the procession was headed with thirty-four, of which all but two were burnt; they bore mitres with flames, on their breasts were placards with their names in large letters and some of them carried chests containing their bones.[241] At that of Granada, in 1721, there were no living persons burnt, but there were seven effigies, and the chronicler of the occasion assures us that the glory of Catholic zeal is acquired as much by carrying to the flames the dead as the living and, in this case, the inquisitors, the alguacil mayor and the secretaries bore them in the procession. Fired by this example, after the sentences were read, the ministers of the royal chancellería exultingly carried them from the staging to the brasero where they were burnt.[242] Even as late as 1752, at Llerena, there were six effigies of fugitives and one of a dead woman.[243]

It will be seen from this presentation of facts from the records that the inquisitorial process, as developed in the Spanish Holy Office, so far from being the benignant and equitable procedure asserted by its representatives and re-echoed by modern apologists, was one which violated every principle of justice. The guilt of the accused was assumed in advance; the prosecution was favored in every way; the defence was so crippled as to be scarce more than a pretext, while the judge, who was in reality the prosecutor, was shielded, by impenetrable secrecy, from all responsibility except to the Suprema. Many cases cited above show that the arbitrary power thus conferred was not always abused, for the individuals were not necessarily as vicious as the system, but the power existed and its exercise for good or for evil depended on temperament and temptation.[244]

BOOK VII.
PUNISHMENT.

CHAPTER I.
THE SENTENCE.

IN the infliction of punishment, the Inquisition differed from secular courts in one important respect. Public law provided for impenitent heresy death by fire and confiscation, and visited on the penitent and on descendants certain disabilities, but apart from these, in its extensive field of jurisdiction over penitent heresy, suspected heresy and other offences, the Inquisition had full discretion and was bound by no rules. It was the only tribunal known to the civilized world which prescribed penalties and modified them at its will. In this, as in so much else, it combined the legislative and the executive functions.[245]

The culmination of the work of the tribunal was the sentence which embodied the result of its labors and decided the fate of the accused. In all cases that appeared in public autos de fe, the sentence was publicly read, and the opportunity was not lost of impressing on the minds of the people the lofty duties of the Holy Office and the enormity of the guilt which merited such chastisement. It afforded an occasion for the display of power, which was turned to the best account.

There were two forms of sentence—con meritos and sin meritos. The former recited at length the misdeeds of the culprit; the latter was briefer and merely stated the character of the offence. The consulta de fe, when it agreed upon a verdict, usually defined which form should be used, and also whether or not the culprit should appear in a public auto. This, in itself, was a severe infliction, aggravated by the reading of a sentence con meritos. For lighter cases the sentence was read in an auto particular, in the audience-chamber, of which there were several varieties, as will be seen hereafter.

The sentence con meritos commenced with a full recital of the details of the trial, through all the various steps of the cumbrous process, represented as a suit between the fiscal and the accused, and it specified the crimes proved against or confessed by the culprit. It was thus sometimes enormously long. In the famous case of Magdalena de la Cruz, a fraudulent beata revelandera, whose fictitious sanctity and miracles had deceived all Spain throughout a long career, the reading of the sentence at Córdova, May 13, 1546, occupied from six in the morning until four in the afternoon.[246] In the sentence of Don Pablo de Soto, convicted of bigamy at Lima, in 1761, all the examinations are detailed at full length, including information volunteered by him concerning persons and matters in no way connected with the case; the secretary appears to have copied verbatim the records of the successive audiences, as though to prolong the shame of the penitent.[247] After these prolix recitals there followed the verdict “Christi nomine invocato,” in which, if the trial had resulted in conviction, the inquisitors found that the fiscal had duly proved his charges, wherefore they must declare the accused guilty of the heresy alleged, with its corresponding penalties.[248]

DELAYED UNTIL THE AUTO DE FE

As a rule, prisoners were left in ignorance of their fate until, on the morning of the auto de fe, they were prepared for it by being arrayed in the insignia which designated their punishments. So jealously were they kept in the dark that, when the customary proclamation was made of an auto, fifteen days in advance, with drum and trumpet, the officials were not allowed to approach the Inquisition, lest the inmates should hear the sounds and guess what was in preparation. At the great auto of Lima, in 1639, we are told that, when the proclamation was made, the negro assistants of the gaoler were shut up in a place where they could not hear it, so that they might not carry the information to the prisoners, and the workmen employed in making the mitres, sanbenitos and crosses were assigned a room in the Inquisition where they could labor unseen, under an oath of secrecy.[249] The effect of the sudden revelation, when it came, is indicated in the advice that it was better to give to those who were to appear their breakfasts in their cells than to wait until they were all brought together for the procession, for then there was shame and confusion and suffering, the fathers seeing their sons and the daughters their mothers in the sanbenitos and other insignia that designated their punishments.[250] The despair induced by the preceding long-drawn suspense occasionally found expression, as in the case of Diego González, who was reconciled for Judaism in the Valladolid auto of July 25, 1644. On the morning of that day, when the gaoler entered his cell to give him breakfast, he was found pale and faint, with the blood flowing freely from a wound in his arm, made with a nail from his bedstead, under the impression that he was to be burnt, and he had to be carried to the solemnity in a sedan-chair. Llorente recounts a similar case, of which he was an eyewitness, in 1791, when a Frenchman named Michel Maffre des Rieux hanged himself in consequence of being thus kept in ignorance.[251]

The object of the delay in thus communicating the sentence was to prevent appeals to the Suprema. We have seen how, in opposing appeals to Rome, the Inquisition and the monarchs argued that they were wholly superfluous, in view of the appellate jurisdiction of the inquisitor-general, who was always prompt to rectify injustice committed by the tribunals, but this nominal opportunity was rendered for the most part illusory by this device of withholding knowledge of the sentence until appeal was impossible. This came about by degrees. Originally it would seem that the tribunals exercised discretion as to withholding the sentence until the auto, although exceptions were rare. The Instructions of 1561, while admitting a right of appeal in some cases, nullified it by ordering, in such cases, the tribunals to send the proceedings in advance to the Suprema, without allowing the accused to know of it.[252] There evidently were contending influences, of justice on one side and convenience on the other, for in 1568 it was ordered that, in cases not of heresy, when the penalty was arbitrary, the culprit should be notified in advance of the auto de fe, and this was extended, in 1573, by instructions that, in cases admitting appeal, the parties should be notified in time to enable them to do so. This concession to justice caused trouble and, on April 11, 1577 the tribunals were ordered to report on the evils arising from it. Apparently the inquisitors reported adversely for, on September 18th, they were ordered to return to the former practice of not notifying culprits prior to the auto de fe.[253]

There was, however, quite an extensive class of cases in which the right of appeal was not completely cut off by this. These were the more trivial ones, in which the sentence was rendered in the audience-chamber, and in these both parties, the culprit and the fiscal, were required to assent on the spot, when either could appeal, for the fiscal had the same right as his opponent; it was included, in the commission issued to fiscals, in the long enumeration of their powers and duties, and was a right not infrequently exercised.[254] Although the culprit thus had an opportunity to appeal, he was obliged to act without advice. In the case of María Cazalla, in Toledo, December 19, 1534, when called upon to assent to her sentence in the audience-chamber, she asked for delay; then, in the afternoon, she begged to be allowed to consult her husband or her counsel and, on this being refused, she accepted the sentence.[255] Still, as public autos diminished and private autillos multiplied, the opportunity for appeals became more frequent and were sometimes successful.

APPEALS

This was more apt to benefit ecclesiastics than laymen for, except in cases involving degradation, they were never exhibited in public autos; their sentences were read in the audience-chamber, and they were more likely than the ordinary culprit to possess the education and intelligence requisite to profit by the opportunity. Cases of appeal by them are consequently not infrequent. Fray Lucas de Allende, Guardian of the Franciscan convent of Madrid, was one of the dupes of Lucrecia de Leon, an impostor who pretended in dreams to have converse with God and the saints. He busied himself in writing out her revelations and was tried at Toledo, where he lay in prison from June, 1590, until April, 1596. He was sentenced to a reprimand and warning not to meddle with such matters, to accept certain definitions laid down by the tribunal, and to strict reclusion in a convent for a year. He vigorously protested that the sentence was absurd and he appealed from it, to which the fiscal retorted by likewise interjecting an appeal. The Suprema heard both appeals and decided, July 30, 1596, by confirming the sentence as to reprimand and warning, and omitting the rest. Even this did not satisfy the obstinate Franciscan for when read to him, August 2d, he refused to accept it and appealed to the pope, but, on being warned to reflect well, he on the same day withdrew this appeal and submitted. There can be little doubt however that the inquisitors suppressed the revocation of part of the sentence, for there follows a petition from him to be allowed to visit his native Villarubia before entering upon his reclusion, deceit of this kind being perfectly practicable in the profound secrecy of the tribunals.[256] More successful was the Geronimite Fray Martin de Cazares, prosecuted in Valladolid for superstitious curing of the sick and sentenced, in 1655, to reprimand and four years’ exile from certain places. The Suprema had confirmed the sentence and yet on appeal from him it remitted the exile.[257] By this time the Suprema was supervising all action of the tribunals and, as it gradually became the whole Inquisition, appeals grew to be superfluous, yet the custom of withholding the sentence was persistent.

There was one class of cases, however, in which notification of the sentence was always made prior to the auto de fe—those in which the culprit was condemned to relaxation. The object of this was to give him a chance of saving his soul by confession and conversion; in the earlier period the notification was short, being only at midnight before the auto, but this, as we shall see hereafter, was subsequently extended to three days.

In the medieval Inquisition, the inquisitor, when rendering sentence, always reserved the right to modify it, in the direction either of mercy or of severity, or to remove it wholly. He could do this, for he was practically independent and irresponsible to any superior, the only authority over him being the distant and almost inaccessible Holy See. The Spanish inquisitor occupied a wholly different position, being held in strict and constantly increasing subordination to the Suprema and, as commutations early became a source of large revenue, it is easy to understand that the tribunals were not permitted to participate in the proceeds. Already in 1498, the Instructions thus undertook to limit the power of inquisitors to modify sentences, by ordering that they should not grant commutations for money or favor or without just cause and, when such existed, the commutation must be into fasts, almsgiving and other pious uses; there could be no release from wearing the sanbenito and the rehabilitation of descendants was reserved for the inquisitor-general.[258] It was difficult to enforce restrictions which recognized any right of inquisitors to modify sentences and, in 1513, Ximenes deprived them of it wholly and concentrated the power in the hands of the inquisitor-general.[259] It was wholly a matter of finance and we have seen (Book V, Chap, iii) how it was thenceforth utilized. The tribunal was recognized to have no power to modify a sentence when once pronounced; as an experienced writer says, although by common law inquisitors and Ordinaries can change or mitigate sentences, it is otherwise under the Instructions which declare that this is reserved for the inquisitor-general, the reason being that they have exhausted their powers.[260]

SEVERITY OR BENIGNITY

In the Indies, where distance rendered application to the Suprema virtually impossible, the tribunals seem to have retained the power of modifying sentences, even though they may rarely have exercised it. In 1663 an old woman, known as Isabel de Montoya, tried for sorcery in Mexico, was sentenced to appear in an auto de fe with the sanbenito, to receive two hundred lashes and to serve for life in a hospital. In the audience-chamber, November 5th, the sentence was read to her, in presence of the fiscal and her advocate. With the assent of the latter, she begged that the sanbenito and the scourging be omitted; she had only been an impostor and had had no pact, expressed or implied, with the demon, and in view of her age and sickness and crippling in the torture she supplicated mercy. On November 7th the fiscal replied to this, asking an aggravation of punishment because it proved her to be an impenitent in denying her pact and intention. November 21st the consulta de fe assembled and unanimously confirmed its former sentence.

The auto de fe was not celebrated until May 4, 1664; on the 6th she was duly scourged through the streets and on the 15th she was delivered to the Hospital del Amor de Dios. Her pitiful prayer, urging age and sickness, was justified for, on June 17th, a messenger from the hospital announced her death, and the inquisitors briefly ordered it to bury her.[261]

As regards cruelty, it is impossible to generalize, where in the earlier periods so much discretion was allowed to the tribunals, and so much depended on the temper of the inquisitors, who might be stern or humane. In the case of the obstinate heretic or of the impenitente negativo there was no question; the law of the land and universal public opinion alike condemned him to the stake but, in the wide sphere of the penitent heretic and of the numerous offences of which the Inquisition had cognizance, there was an ample field for the display of severity or benignity. Against the barbarity of a case like that of Isabel de Montoya, which had too many parallels, may be set the tendencies of the Toledo tribunal about 1600. In its reports to the Suprema at that period there, frequently occur explanatory remarks, as though to apologize for the mildness of the sentences, which indicate its readiness to temper its judgements—such expressions as “she was a poor and ignorant woman,” “she was simple and ignorant,” “she was spared heavier penance because she was only sixteen years old,” “she seemed a very simple and a very good woman,” “recent baptism and drunkenness.” Occasionally, in bigamy cases, involving scourging and the galleys according to rule, the omission of these is justified by the age or weakness of the culprit. Sometimes, but not often, the suffering which the prisoner has endured during prolonged imprisonment is taken into consideration, and is admitted as part of the punishment.[262] This tendency towards mercy becomes more marked in the period of decadence, when the humanitarian development of the age made itself felt even in the Inquisition, and it offers a suggestive contrast to the savage fanaticism of the secular courts of a land which claimed to be more enlightened than Spain. In 1765 a wooden crucifix on the bridge at Abbeville was mutilated and the Bishop of Amiens published a monitoire ordering, under pain of excommunication, any one having knowledge of the matter to denounce the offender. Duval de Saucourt, a counsellor in the court of Abbeville, who was inimical to the Abbess of Villancourt, accused her nephew, the Chevalier de la Barre, a youth of nineteen. The only evidence was that he had once passed a procession without lifting his hat, that he had talked against the Eucharist and had sung impious and licentious songs. He was doubtless irreligious and debauched, and his evil reputation sufficed, in the court of Abbeville, to justify a sentence of amputating his tongue and right hand and burning him alive. Appeal was made to the Parlement of Paris which, by a vote of fifteen to ten, confirmed the sentence, with the mitigation of beheading before concremation and this was duly executed, July 1, 1766.[263] The annals of the Spanish Inquisition offer nothing more hideous than this, and the comparison is the more instructive in that its penalty for sacrilegiously outraging an image of Christ, the Virgin or the saints, with aggravating circumstances, was merely appearance in an auto de fe with the insignia of a blasphemer, abjuration de levi and a hundred lashes or vergüenza or exile, according to the character of the offence and of the culprit.[264]

The Inquisition boasted that it was no respecter of persons and, in one point at least, its rules offer a favorable contrast to those of the secular law. In Spanish law the privileges of gentility were fully recognized and, for many crimes, the penalties assigned to gentle blood were much milder than those inflicted on the commonalty. This was reversed in the Inquisition, where it was prescribed that, in matters of faith, nobles should be punished more severely than plebeians.[265] This was doubtless owing to the assumption that they were more intelligently trained and less exposed to error, besides the fact that their example was more impressive. On the other hand, however, the clergy, for whom less excuse could be found, were treated with much greater leniency than the laity and, far from being utilized as examples, their frailties and errors were shielded as much as possible from public view, in order not to diminish popular reverence for the Church.

NON-PERFORMANCE

The penal resources of the Inquisition, as we shall see, were endless. While, for certain well-defined offences, certain penalties were customary, the discretion of the consultas de fe was bound by no definite limitations as to what were known as penas extraordinarias, and they could devise whatever seemed appropriate to special cases. Infinite gradations and intricate combinations were resorted to in the effort to fit the penalty to the offence of each individual, and also doubtless often to secure unanimity in the consulta de fe, so that not infrequently there are six or eight separate and distinct inflictions in a single sentence. It would be too much to expect that, in so composite an institution, during more than three centuries of existence, there should have been strict consistency in the exercise of this discretional power, but, making allowance for the infirmities of human nature under the temptation of irresponsibility, it can scarce be said that it habitually abused its authority, according to the barbarous standard of the times, except in the infliction of pecuniary penalties on which its finances depended, and in the vindication of its authority against all who dared to question its supremacy. It was callous to the sufferings of those whom it prejudged as guilty; it devised the most atrocious formulas of procedure; but, when it had secured confession or conviction, it was not systematically and ferociously cruel as has so often been asserted.

As regards the enforcement of the sentence, it is to be observed that the penalties divide themselves into two classes. Some, such as relaxation, confiscation, fines, scourging, the galleys, reconciliation and abjuration, were within the power of the tribunal. Others, like imprisonment, the sanbenito, exile and reclusion, depended to a greater or less degree on the will or the fears of the penitent. Theoretically, as we have seen, punishment was regarded as penance, voluntarily accepted by the penitent for the salvation of his soul, but the Inquisition, unlike the father confessor, did not rely wholly on the penitential ardor of the sinner. Punishment retained enough of the character of penance to justify the theologian in treating its non-performance as a proof that repentance had been feigned, and that the offender had relapsed into heresy, the penalty for which, under the canons, was death by fire without trial. In the earlier time this was enforced in so far as was possible. Thus, in 1486, at Saragossa, Rodrigo de Gris, who had been condemned to perpetual imprisonment in a designated house, with the penalty of relapse for leaving it, escaped and was burnt in effigy as a relapsed and, in 1487, Cristóval Gelva, to whom the Hospital of Nuestra Señora de la Gracia was assigned as a perpetual prison, was burnt in effigy for escaping.[266] This continued for some time to be the theory but, in practice, while summoning the fugitive as an impenitent relapsed, to appear for judgement, it was deemed safer to proceed against him in the ordinary way in absentia, waiting for a year and prosecuting him for contumacy. Such a case appears to be that of Bartolomé Gallego, who escaped in 1525 from the penitential prison of Toledo and was condemned to relaxation in effigy, November 3, 1527.[267] Some forty years later, Pablo García explains that the suspicion arising from flight, joined with that of remaining under excommunication for a year, afforded sufficient proof for declaring the fugitive a relapsed heretic and relaxing his effigy. It was only when evidence could be had of subsequent acts of heresy that direct proceedings for relapse were justified, and this was decided in a case where a fugitive was relaxed in effigy, and the Suprema revoked the sentence and rescinded the confiscation.[268]

NON-PERFORMANCE

The theory of relapse was evidently giving way. Simancas tells us that, although supported by high authorities, it is cruel and false and not founded in law; the fugitive is impenitent, not relapsed; if he returns or is captured he is to be heard, and if prepared to obey the Church, his flight only deserves an increase of penalty.[269] How rapidly the ancient severity was disappearing is manifested by a case in Valencia, in 1570. Pedro Luis Verga was prosecuted for Protestantism on a vague accusation that, when studying in Paris in 1555, he had consorted with the dreaded Juan Pérez and had shared his opinions, for which he was reconciled and sentenced not to leave the kingdom. He disobeyed and, in 1570, he was heard of in Genoa, giving utterance to heretical opinions. Now this was a case of relapse, as well as of non-fulfilment of penance, but he was prosecuted for contumacy as a simple fugitive.[270] It was an evidence that the old rule had become obsolete when inquisitors sometimes prescribed in their sentences that the penance was to be performed under pain of impenitent relapse, as in the case of Juan Franco, condemned at Toledo, in 1570, to eight years of galleys for Protestantism, and of Juan Cote, by the same tribunal, in 1615, to irremissible perpetual prison for the same heresy.[271] Towards the middle of the seventeenth century, Alberghini gives the various opinions held on the subject, and concludes that that of Simancas was commonly accepted.[272]

Cases of non-fulfilment were not infrequent for, as we shall see, the discipline of the penitential prisons was exceedingly lax; any penitent could absent himself and then throw off the sanbenito, which was the customary accompaniment of imprisonment, but, although this was canonically relapse, such cases were treated with what in those days might be considered as mercy. Thus Diego González, reconciled for Judaism at Valladolid, in 1644, and condemned to prison and habit, was recognized in 1645, at Medina de Rioseco, without the sanbenito. On being tried for this, the consulta de fe was not unanimous and the Suprema sentenced him to a hundred lashes.[273] It was the same with sentences of exile. In 1667, at Toledo, Francisco López Rodríguez, who had been reconciled in 1665 and had already been prosecuted for non-fulfilment of penance, was tried for doing so again, and was condemned only to a hundred lashes and two years more of exile. So in 1669, Juan López Peatin, for infraction of exile, had only two years added to the original term.[274]

A curious case, however, in 1606, shows how penitents were expected to fulfil their penances. Gaspar Godet, a Morisco, had been condemned at Valencia to reconciliation, a hundred lashes, and perpetual prison, of which the first eight years were to be passed in the galleys. After five years’ service, his galley was captured by the English, near Lisbon, and he was set free. He ought strictly to have conveyed himself on board of another galley to serve out his term, but he seems to have imagined that he was released from his sentence; he quietly returned to his native Torre de Llovis and resumed his profession of surgeon. He was, of course, reported to the tribunal, which seized him in August, 1606, and condemned him not only to complete his sentence but to undergo a hundred lashes and to pay a fine of two hundred libras, although the maximum fine that could legally be imposed on a Morisco was ten ducats.[275]

The renewed activity of the Inquisition, in the early eighteenth century, seems to have been accompanied with a recrudescence of severity in these cases. In the Valencia auto de fe of February 24, 1723, Antonio Rogero was reconciled and condemned to irremissible prison and sanbenito. He escaped but was captured and, in the auto of March 12, 1724, he was condemned to two hundred lashes and five years of galleys, after which he was to be returned to prison, but the inquisitor-general mercifully commuted the scourging and galleys to five years of presidio, or labor in an African garrison. So, in the Valencia auto of June 25, 1724, Joseph Ventura, of Fez, a Moorish convert, had been reconciled with three years of prison and sanbenito; he fled, was captured and, in the auto of July 1, 1725, his prison was made perpetual and irremissible; again he fled, to be again caught and, in the auto of September 17, 1725, he was condemned to five years of galleys, after which he was to be returned to prison.[276]

NON-FULFILMENT OF PENANCE

All these were cases of formal heresy, for relapse in which the canonical punishment was burning. For offences less heinous, which inferred only suspicion of heresy, there was an occasional practice of including in the sentence a penalty for non-fulfilment of the penance. This was in every respect an arbitrary matter, concerning which no generalization can be formulated, for it is frequently impossible to divine why, in a group of similar cases, some sentences should carry this threat and some should not. This apparently objectless diversity is markedly exhibited in the auto of May 13, 1565, at Seville, where there were a large number of penitents thus arbitrarily differentiated. In the cases where the threat was employed, there was slender indication of mercy, for where exile for life or for a term of years was imposed, the penalty for non-fulfilment was that it should be completed in the galleys. In one case, that of Abel Jocis, for conveying arms to Barbary, the sentence was merely a prohibition to sail to Barbary, but a violation of this was visited with the galleys for life.[277] It should be added, however, for the credit of the Inquisition, that it not infrequently made threats which it had not the cruelty to execute. Thus the tribunal of Toledo, on a charge of divination, banished from Spain a priest named Fernando Betanzas, with a threat of the galleys for disobedience. Not long afterwards the Bishop of Salamanca found and arrested him, and the Suprema, December 22, 1636, ordered the tribunal of Valladolid to investigate the case, after which the Suprema contented itself with deporting him to Portugal, and warning him that, if he returned again, he should be sent to the galleys.[278]

The case of the Augustinian Fray Diego Caballero, in 1716, indicates how non-fulfilment of penance might convert into formal heresy that which was mere suspicion. For uttering unacceptable propositions, he had been sentenced by the tribunal of Córdova to reclusion for four years in the convent of Guadix. He fled from there and continued to repeat his erroneous utterances, for which the Toledo tribunal pronounced him to be relapsed in grave crime and sentenced him to abjure de vehementi, to be suspended from his orders for a year, to perpetual deprivation of preaching, confessing and the right to vote and be voted for, to ten years’ exile from a number of places, to four years’ reclusion in a designated house, where for six months he was to be confined in a cell. He was also to wear a sanbenito, while his sentence was read in the audience-chamber, and the next day it was to be read to the assembled brethren of his Toledo convent, who were to administer to him a circular discipline, and he was to forfeit half his peculium—and all this under pain of being held as an impenitent relapsed.[279] What is noteworthy here is not only the severity of this long accumulation of penalties, but also the abjuration de vehementi which rendered reincidence in the abjured errors a matter for the stake.

In the medieval Inquisition it may be said that acquittal was virtually prohibited—a sentence of not proven might possibly be rendered, but acquittal was an admission of fallibility and was regarded as a bar to subsequent proceedings in case further evidence was obtained.[280] This principle was maintained in the Roman Inquisition, although, in the eighteenth century, exception was made in cases where the adverse evidence was clearly proved to be fraudulent.[281] The Spanish Holy Office was not quite so sensitive, and had no hesitation as to repeated prosecutions, so that to it acquittal was a less serious matter. Moreover, while sentences of not proven were not unknown, there was an equivalent device by which the accused could be dismissed without admitting his innocence—suspending the case and discharging him, subject to the liability of its being reopened at any time.

The furious zeal of Torquemada rendered acquittal peculiarly distasteful to him, and we have seen above (Vol. I, p. 175) a case in which he set aside acquittals at Medina del Campo, and insisted on conviction although, at his instance, the parties had been tried twice and had been tortured without confession. This temper on his part could not but impress itself on his subordinates, and yet we occasionally meet with acquittals in this early time—acquittals, however, which manifest a strange mental confusion, and betray the unwillingness to admit the prosecution of the innocent, for they couple acquittal with punishment. Thus at Guadalupe, in 1485, in the case of Andrés Alonso of Trogillano, the sentence recites that the fiscal had not proved his accusation as fully as he ought, wherefore the inquisitors absolved the accused but, as the evidence aroused some suspicion in their hearts, for the satisfaction of their consciences and his, they sentenced him to abjure de levi and, as some infamy had accrued to him from the accusation, they removed it and restored him to his former good repute, and lifted the sequestration on his property. Whereupon he duly abjured de levi, renouncing all manner of heresy, and especially that of which he was accused, promising to be always obedient to the Church, after which he was absolved ad cautelam from any excommunication which he might have incurred, and of all this he asked to have a certificate.[282] All the acquittals that I have met, of this period, bear this illogical character, sometimes even requiring abjuration de vehementi and inflicting penalties for the offence of which the accused is pronounced innocent.

ACQUITTAL

In Barcelona, the Inquisition had been established twelve years before the first acquittal was granted, and, from such record as we have, it would appear that there were acquittals of more than one kind—conditional and unconditional. Thus, in 1499, Jayme Castanyer and Eufrosina Pometa were acquitted, but were required to abjure publicly on May 2d, and, on October 5th, Luys Palau was acquitted. In 1500, on September 18th, four women were acquitted absolutely, two men were acquitted with penance, and two women and a man were acquitted with abjuration. Then, on October 5th, the memory and fame of Juan de Ribes Altes were cleared and, on December 20, 1501, Blanquina Darla was acquitted absolutely.[283]

In a record of the Toledo tribunal, from 1484 to 1531, there are eighty-six cases of acquittal, or an average of somewhat less than two per annum which, in view of the intense activity of the earlier period, indicates how few escaped when once the Inquisition had laid its hand upon them. Some of these cases show how long the conditional acquittal persisted. Thus of those acquitted, Hernando Parral was required to abjure, and Francisca Ramírez and Catalina beata negra abjured de vehementi. Unless there is a mistake by the scribe, Leonora de la Oliva of Ciudad Real was acquitted and scourged, October 3, 1521, and again had the same sentence October 13, 1530. In 1520 Alonso Hernández was acquitted with public penance and, in 1513, Sancho de Ribera was acquitted with confiscation. One entry is difficult of comprehension—that of Inez González, who was voted to acquittal with reconciliation and confiscation, but the confiscation was remitted.[284]

Practically acquittal amounted only to a sentence of not proven. In the formula for it, Pablo García calls special attention to the omission of the word “definitive,” pointing out that it is not final, for the case could be reopened at any time that fresh evidence was obtained—and even without it, as we have seen in the case of Villanueva. In matters of faith there was no finality, no cosa juzgada, and it was so declared by Pius V, in the bull Inter multiplices, invalidating all letters of absolution and acquittal issued by inquisitors and other spiritual judges.[285] In strict accordance with this principle was the rule that sentences of acquittal of the living were not to be read at the autos de fe, unless at their especial request, while acquittals of the dead were read; in either case, the sentence simply stated that he had been accused of heresy and no details were given; if living he did not appear at the auto and if dead there was no effigy.[286] All this was in direct contradiction to the glowing eulogy of Páramo who, as we have seen, states that the inquisitors used every means to prove the innocence of the accused and, when they succeeded, took care that he should go forth like a conqueror crowned with laurel and the palm of victory.[287] Yet Páramo had some justification in the fact that there were rare exceptional cases in which the acquitted was thus honored. The only instance of this that I have met in Spain was that referred to above (Vol. II, p. 561), where fourteen residents of Cádiz were falsely accused. In Peru, however, several cases are recorded. In the Lima auto of 1728 Doctor Agustin Valenciano appeared in the procession on a white horse, with a palm, and proclamation was made of his innocence. In the great auto of January 23, 1639, there were seven thus honored after their three years of incarceration, and in that of October 19, 1749, the effigy of Don Juan de Loyola, who had died in prison in 1745, headed the procession, bearing a palm. This last case is perhaps explicable by Jesuit influence, for he was of the family of St. Ignatius, and further reparation was made by creating his brother, Don Ignacio de Loyola y Haro alguazil mayor of the tribunal, while three nephews were made familiars.[288]

The reluctance of the tribunals to pronounce a sentence of acquittal is illustrated in the case of Francisco Marco, tried at Barcelona for bigamy, in 1718. Unable to prove the charge, which was punishable with scourging and galleys, the tribunal sentenced him to have his sentence con meritos read in the audience-chamber, to be reprimanded and threatened, and to be banished from Barcelona and Madrid for six years. In the earlier period this sentence would have stood, but by this time the Suprema was in full control and it expressed great surprise at so unjust a decision, inflicting so foul a stigma on the accused. It declared null and void all the acts of the process, it ordered Marco to be discharged at once, and that the inquisitors should defray out of their salaries all the cost of his imprisonment.[289]

SUSPENSION

The indisposition to acquit found expression in the device known as suspension. When the effort to convict failed, the case could be suspended, thus leaving matters as they stood; the accused was neither acquitted nor convicted, the case could at any moment be reopened and prosecuted to the end, and it hung over the unfortunate victim while it saved the infallibility of the tribunal. The earliest allusion to it that I have met occurs in the Instructions of 1498, which show that it was a usage already established and abused, for it is forbidden in prosecutions of the dead, except when further evidence is expected, and acquittal is ordered when the proof is imperfect, because there are many cases of suspension that inflict hardship through the sequestrations continuing in force.[290]

Suspension was a convenient resource for a tribunal, unable to convict yet unwilling to acquit, and desirous to conceal its failure. At first it was comparatively rare, but in time it became a favorite method of escaping a decision and, as it gradually, for the most part, replaced acquittal, in its development it might even remove the stigma; in the great majority of cases it was practically the end of the matter, and it was usually accompanied with lifting the sequestration. Some authorities held that a case could not be entered as suspended, if there was enough in it to justify a reprimand, or even when the offence was trivial and the defendant was cautioned not to speak or act in that fashion, but this rigidity of definition was not observed in practice. When suspension was decided upon, the accused was not permitted to know it. He was simply brought into the audience-chamber; if he had been confined in the secret prison he was put through the customary inquiries as to what he had seen and heard, and was sworn to secrecy; he was told that for just reasons he was granted the favor of returning home and that he must seek to discharge his conscience for his case was still pending.[291] This mystery served to keep him in suspense, but, after he found the sequestration or embargo lifted from his property, he could doubtless fathom its meaning. If he demanded a definite sentence of conviction or acquittal, he had the right to do so, but I have met with no instance of this, and few could have been hardy enough thus to tempt their fate. If he asked for a certificate that he was freely discharged, or that his case was suspended, it was not to be given, but the Suprema might grant him one to the effect that he was discharged without penance or condemnation.[292]

Suspension wholly without penance was, however, unusual, for the infallibility of the Inquisition was commonly emphasized by accompanying it with some infliction, more or less severe. The lightest of these was the reprimand and warning administered when discharging the accused. In 1650 the tribunal of Toledo summarily got rid of quite a number of cases in this fashion—four on June 18th, two on the 25th and three on the 30th, and those were fortunate who escaped so lightly. About the same time, Doña Gabriela Ramírez de Guzman, accused of superstitious sorcery, was not only reprimanded, when her case was suspended, but was banished for a year from Toledo and Madrid, and the same penance was assigned to Domingo de Acuña, when his trial for propositions was suspended.[293] How little incongruity was recognized in this is illustrated by the case of Martin Mitorovich, at Madrid, in 1801, when one of the inquisitors voted to suspend the case and confine him for life in the hospital of Ceuta.[294] In fact, as suspension grew more frequent in the closing years of the Inquisition, it was often coupled with severe inflictions. Thus, August 30, 1815, the tribunal of Llerena suspended the case of María del Carmen Cavallero y Berrocal, but sentenced her to reprimand, two hundred lashes and three years’ seclusion in a hospital; at the same time, in view of her ingenuous confession, the scourging was suspended until her amendment should earn its forgiveness, and the same phrases were used with her accomplice, Nicolás Sánchez Espinal, who was sentenced to reprimand, certain spiritual exercises and perpetual exile from the province.[295]

ADMISSION TO BAIL

In cases like these, however, suspension had somewhat outgrown its original purpose of a substitute for acquittal, and was a more than doubtful mercy, for the case remained unconcluded, though visited with full penalties, and could at any moment be reopened. That originally it was merely a convenient device for escaping the admission of having prosecuted the innocent is manifested by cases of which the records are full. Thus, in 1607, Francisco Dendolea, a Morisco of Xea, was tried at Valencia on the evidence of a witness that, when limosnero or almoner of Xea, he had, under pretext of begging for the poor, used his office to serve notices of the commencement of the fast of Ramadan and give other ceremonial instructions. He proved that he never was limosnero and the charge fell to the ground, but the case was merely suspended. So, in 1653, Doña Isabel del Castillo was prosecuted for Judaism at Toledo. She had previously been reconciled at Valladolid, and it was found that the evidence related to a period prior to the reconciliation. She of course ought to have been acquitted, but the case was suspended.[296] Even more self-evident is the case of the Benedictine Padre Francisco Salvador, tried at Valladolid, in 1640, for sundry propositions presented in a competition for a professorship. The consulta de fe voted to suspend the case and the Suprema, in confirming the sentence, added that a certificate should be given to him that no offence had been found that would in any way prejudice him.[297]

There was also a kind of imperfect or informal acquittal, which consisted in admitting the accused to bail at the end of the trial. It saved the tribunal from the trouble of a decision and of an acknowledgement that the prosecution had been in error, but it was cruel to the party involved, as it left him but partly liberated and with the stigma of heresy. Its working is fairly exemplified by the case of Petronila de Lucena, tried in 1534, at Toledo on a charge of Lutheranism. After nearly a year’s incarceration, her brother, also under trial, revoked in the torture the evidence which he had given against her. There was no other testimony, yet she was not acquitted but merely released, March 20, 1535, under bail of a hundred thousand maravedis, to present herself when summoned. The security was furnished and she was delivered to the bondsmen as her gaolers. On June 27th, she petitioned for release, for the discharge of the bondsmen and for the removal of the sequestration, which included some articles of personal necessity in the hands of the gaoler; she was, she pleaded, poor and an orphan, she needed the property and wished to be free to dispose of herself. No notice was taken of this and, sixteen months later, on October 20, 1536, she applied again; this time an order to lift the sequestration was issued, but there is no record of her having been released from subjection to bail. She thus remained under the ban and, at the age of 25, the two careers open to a Spanish woman—marriage and the nunnery—were virtually closed to her.[298]

There was yet another kind of acquittal, still more informal, in which the accused was simply discharged and bade to be gone, without a sentence, leaving him under the dreadful uncertainty of what might be his position. An instance of this is the case of Miguel Mezquita, tried for Lutheranism at Valencia, in 1536. The evidence was of the flimsiest, and the inquisitors merely ordered him to be released from prison without making further provision.[299]

The comparative frequency of these various forms of release, in the earlier period, may be inferred from the record of the Toledo tribunal from 1484 to 1531, in which there are eighty-six cases of acquittal, to only four of suspension, four of release under bail, and two of simple discharge—the latter forms thus being negligible quantities.[300] The proportions changed rapidly with time, showing how much more in harmony with the spirit of the institution were the forms which evaded acknowledgement of error. A record of the same tribunal, from 1575 to 1610, contains an aggregate of eleven hundred and seventy-two cases of all kinds, in which there were fifty-one acquittals, ninety-eight suspensions and thirty simple discharges.[301] This tendency continued with increasing development. A Toledo record from 1648 to 1694, comprises twelve hundred and five cases, of which but six ended in acquittal, one in discharge for mistaken identity, and a hundred and four in suspension, nearly all of the latter coupled with a reprimand in the audience-chamber—apparently a scolding for having given the tribunal so much bootless trouble. The suspensions were, in nearly every case, ordered by the Suprema, as though the inquisitors shrank from the admission which it involved.[302]

COMPURGATION

This repugnance existed to the last. In 1806, Don Matias Brabo, an ex-Agonizante and calificador of the Saragossa tribunal, was tried in Madrid on the charge of uttering certain propositions; he was acquitted but, in view of his disorderly life, especially in regard to the sixth commandment, he was sentenced to a reprimand, to fifteen days of spiritual exercises, and to make a general confession at such time as he could do so without disrepute.[303]

The same spirit is seen in the instructions of the Suprema, October 14, 1819, to the Cuenca tribunal, authorizing the arrest and trial of María Martínez for propositions. In case, it says, the trial shows that she has not erred in the matters charged, or in anything else, she is to be reprimanded and warned and told that the tribunal is keeping a watch over her acts.[304]

There was another kind of suspension, by far the most frequent of all. It often happened, especially in the later periods, that the sumaria, or collection of evidence against a presumed offender, proved insufficient to justify prosecution. In such cases it would be quietly voted to suspension; it was filed away in its place among the records, ready to be exhumed at any time, when further information might supply deficiencies and induce active proceedings. Thousands of these abortive processes reposed in the secreto of the tribunals, the subjects of which were unconscious of the dangers which had threatened them, or that their names were on the lists of suspects of the dreaded tribunal. That they were kept under surveillance is indicated by an occasional note, such as one respecting a certain Johann Wegelin, a Calvinist—“there is a sumaria which has been withdrawn because he became insane and returned to his own country,” or in another case “suspended because he died in 1802.”[305]

Yet, taking it as a whole, when we consider that the inquisitorial system was so framed as to put every temptation in the way of the judges to condemn, for the sake of confiscations, fines, penances, dispensations and commutations, it is rather creditable that acquittals and suspensions should occur in the records even as frequently as we find them there, though of course we have no means of knowing whether those who thus escaped were among the wealthy or the poor.

There was still another possible form of sentence. The Barbarians who overthrew the Roman Empire brought with them an ancestral custom, known as compurgation or, in England, as the Wager of Law, by which a defendant, in either a civil or criminal action, could maintain his title or his innocence by taking an oath and bringing a specified number of men who swore to their belief in its truth. They were known as conjurators or compurgators and were in no sense witnesses; they pretended to no knowledge of the facts but only to their confidence in the veracity of their principal. This crude method of establishing the truth was maintained in all the lands occupied by the Teutonic tribes except in Spain, where the Wisigoths early yielded to the influence of the Roman law. It was eagerly adopted by the clergy, who found in it a convenient means of escaping from the harsher expedients of the ordeal or the wager of battle, so that it acquired the name of canonical purgation.[306] In the thirteenth century, the Inquisition found it used in the trial of heretics and necessarily included it among the resources for doubtful cases, although inquisitorial methods were too thorough to call for its frequent employment.

The Spanish Inquisition naturally inherited compurgation among the other traditions of the institution. When conviction could not be had by evidence or torture, and yet the suspicion was too grave to justify acquittal, it could sentence the accused to undergo compurgation. He could not demand it, nor could he decline it, though he might appeal from the sentence; and failure in compurgation was equivalent to conviction, while success was not acquittal but required abjuration and penance at the discretion of the tribunal, because, although legally shown not to be a heretic, the accused had to be punished for “suspicion.”

COMPURGATION

The early Instructions are silent on the subject, and such cases of the period as I have met indicate that there was no rigidly prescribed method of procedure, although, in the main, they accord in showing it to be a kind of trial by jury, after the tribunal had failed to reach a decision. The general features of the process can be gathered from the case at Saragossa of Beatriz Beltran, wife of the Juan de la Caballería, accused of complicity in the murder of San Pedro Arbues, who died in prison and was relaxed in effigy in the auto of July 8, 1491. She was put on trial for Judaism in 1489; the evidence against her was by no means decisive, while the defence discredited the witnesses and proved by abundant testimony her devotion to the Church, her regular attendance at mass and confession for more than twenty years, her liberality in the celebration of masses and her long hours spent in daily prayer. She could not be tortured in view of her advanced age and severe infirmities and, on August 9, 1492, the consulta de fe voted unanimously that, as torture was out of the question, she be sentenced to canonical purgation, at the judgement of the inquisitors when, if she should purge herself, she should abjure publicly as vehemently suspect of heresy and of Judaizing, and should perform penance at the discretion of the tribunal. The next day the inquisitors pronounced that she was not convicted but vehemently suspect, wherefore she should purge herself with twelve conjurators. They were duly selected and a term of three days was assigned, within which the ceremony should be performed. They assembled in the Aljafería on August 23d, when the publication of evidence and the defence were read to them. She was sworn to tell the truth and was asked whether she had committed these crimes, to which she replied in the negative and was then removed from the room. The inquisitors again read the accusatory evidence and the defence, the compurgators were sworn to tell the truth, and the inquisitors polled them. The first one, Pedro Monterde, said that he believed Beatriz to have sworn truly, for he had known her for fifteen years and had always held her to be a good Christian, the rest unanimously concurred and the purgation was successful. Then, on September 8th, she appeared in an auto as a penitent and, on the 17th, she abjured all heresies and especially those of which she was vehemently suspected, after which the inquisitors rendered sentence, declaring her to be vehemently suspect of the crimes which she had abjured and, as these suspicions and crimes could not be left unpunished, they penanced her with forbidding her to commit these crimes, with the payment of all costs of her trial, the taxation of which they reserved to themselves, and with performing such penance as they might impose on her. The record fails to inform us what was that penance, but it probably transferred to the tribunal a large portion of the property that had escaped her husband’s confiscation.[307]

The threat that failure would imply condemnation was by no means an idle one. About this time, Fray Juan de Madrid was tried before the tribunal of Toledo; there was much adverse evidence in full detail, and the only defence lay in disabling the witnesses. This was partially successful, but enough remained to justify the inquisitors in saying in the sentence that he could have been condemned on it but that, in benignity and mercy, he was offered compurgation. He willingly accepted it and named his compurgators, but half of them refused to sustain his oath of denial, declaring that through their knowledge of him they held him as suspect. This was conclusive; he was considered to be convicted of the charges and the consulta de fe had no hesitation in voting him to relaxation. In like manner, on February 3, 1503, Jayme Benet was burnt at Barcelona because he failed in the compurgation enjoined on him.[308]

A change, probably attributable to the growing desire for absolute secrecy, prescribed by the Instructions of 1500, altered profoundly the prevailing theory of compurgation, for it prohibited the reading to the compurgators of the evidence and defence. In their presence the accused was to deny under oath the charges which were recapitulated by the inquisitors, and the compurgators were simply to be asked whether they believed that he swore the truth, and no other questions.[309] There seems to have been some trouble in abrogating the custom of reading the evidence, for the prohibition had to be repeated in 1514.[310]

COMPURGATION

In the project presented to Charles V, in 1520, by the Conversos, with the object of rendering the inquisitorial process less effective, there was included a modification of compurgation in such wise as to facilitate escape.[311] Of course no attention was paid to this, but that some alteration of the process was required by justice is manifest from one or two minor reforms soon afterwards. In 1523 it was ordered that the fiscal should not be present after the compurgators were sworn, which is suggestive of his influencing them adversely. Still more essential was a regulation of 1529, forbidding those who had testified against the accused from serving as his compurgators.[312] Apparently it was one of the results of suppressing the names of witnesses that the poor wretch, in his ignorance, would sometimes call upon those to save him who had been procuring his destruction, and the inquisitors had not sufficient sense of justice to exclude them, although they had power to refuse admission to any one supposed to be friendly to him. There was also a favorable modification of the ancient practice requiring unanimity on the part of the conjurators, for Simancas tells us that the inquisitors, when specifying the number to act, could also designate how many defections would be allowed without prejudicing the result.[313]

Yet by the middle of the century, when Simancas wrote, compurgation was becoming obsolete. He denounces it as blind, perilous and deceitful, and says that it especially should not be forced upon those of Jewish or Moorish descent, for it is equivalent to sending them on the direct road to the stake, since no one could help thinking ill of them, or at least doubting their innocence. Besides, nearly all men are now so corrupt, and Christian charity is so cold, that scarce any one can be found who will purge another, or who will not have an evil suspicion and interpret matters for the worst. To defeat the accused it suffices for the conjurators to say that they do not know, or that they doubt whether he has told the truth, and who is there who will not feel uncertain when he knows that no one is exposed to purgation unless he is vehemently suspected.[314]

This is echoed by the Instructions of 1561, which indicate how compurgation was passing out of use by the brief allusion vouchsafed to it. It is to be performed in accordance with the Instructions, with such number of compurgators as the consulta de fe may prescribe, but inquisitors must bear in mind that the malice of men at the present time renders it perilous, that it is not much in use, and that it must be employed with the utmost caution.[315]

Still, subsequently to this, Pablo García gives full and curious details as to procedure, which show how it had become hedged around with limitations that rendered it a desperate expedient for the accused. The compurgators had to be Old Christians, zealous for the faith, who had known the accused for a specified number of years, and were not of kin or well disposed towards him. He was required to name more than the number designated, so as to allow for those who might have died or be absent, showing that he had to act in the solitude of the cell where perhaps he had been confined for years. When the sentence of compurgation was announced to him, he was given a certain term in which to make his selection and, if he allowed this to elapse, he was at the discretion of the tribunal. No communication with the compurgators was allowed, and when they were assembled each one was separately and secretly examined to ascertain whether he lacked any of the necessary qualifications, what were his relations with the accused, whether he would give anything to secure his discharge, whether any one had spoken with him and asked him to serve, or whether he had intimated to any of the kindred that he was willing to act. While thus carefully guarding against possible friendship, it is significant that there is no instruction to inquire into possible enmity.

The ceremony was performed with considerable impressiveness. On the table of the audience-chamber there were placed with much solemnity a cross, the gospels, and two lighted candles. The prisoner was brought in, his list of selections was read to him and he was asked if he recognized them, to which he assented and said that he presented them as his compurgators. They were then asked if they wished to serve or not; if they accepted, a solemn oath was taken by the prisoner to tell the truth and not to conceal it for fear of death or of loss of property or of honor or for any other reason. The inquisitors then recited the charges which created vehement suspicion and asked him, under his oath, whether he was guilty of them and, after he had answered, he was led back to his cell. Then, if necessary, the nature of compurgation was explained to the compurgators and they were sworn to answer truly and not to deny the truth for hate, or love, or fear, or affection, or other motive. They were kept apart, without communication with each other, and each was examined separately and in secret whether he understood what had passed and whether, in accordance with what he knew of the accused, he believed that he had told the truth, and after replying he was made to promise secrecy under pain of excommunication. The answers were carefully taken down and were signed by the compurgators.[316]

COMPURGATION

Conducted after this fashion it is easy to understand why compurgation should be characterized as blind and perilous. The accused had to make his selection blindly, and the qualifications required of conjurators almost insured their unfavorable opinion, at a time when the operations of the Inquisition had caused every man to look upon his neighbor with suspicion, especially when that neighbor was one whom the tribunal required to undergo compurgation. Yet, although the Inquisition thus risked little in subjecting doubtful cases to it, there was ample reason for allowing it to fall into desuetude. Secrecy had become a cardinal principle in all inquisitorial proceedings and it was violated by calling in a dozen laymen to see the prisoner, to hear the charges against him and to participate in the judgement to be passed upon him. Besides, it was an acknowledgement that there were cases in which the assumed omniscience and infallibility of the Holy Office were at fault, and had to be supplemented by the random opinions of a few men selected by the accused. As practised for centuries in the ecclesiastical courts, it had been an easy method for the guilty to escape merited chastisement; as modified by the Inquisition, it became a pitfall for the innocent; it was wholly at variance with the inquisitorial process as developed in Spain and, while its place in the canon law prevented its formal abolition, the tribunals had exclusive discretion as to its employment, and that discretion was used to render it obsolete. Still, it maintained its place as a legal form of procedure. Even as late as 1645, among the interrogatories provided for a visitation, the question was still retained as to whether the forms of the Instructions were observed in canonical compurgation, although a writer of the same period tells us that it is not to be employed because, if the accused overcomes sufficient torture, he is to be discharged.[317]

In the Roman Inquisition we find compurgation ordered as late as 1590, in the case of a priest of Piacenza, accused of certain heretical propositions; the compurgators were to be five beneficed priests of good character and acquainted with the life of the accused. If the purgation was successful he was to be proclaimed of good repute as to the faith, and was to perform salutary penance for the imprudence of his utterances.[318] By the middle of the seventeenth century, however, Carena tells us that it had been virtually disused by the Congregation, as most perilous, fallacious and uncertain.[319]

From this brief review of the various characteristics of the sentence, it will be seen that the Inquisition had at hand formulas adapted to every possible exigency, in the administration of its extensive and highly diversified jurisdiction. Until the development of the authority of the Suprema over the local tribunals, the use made of these formulas depended on the temperament of the individual inquisitors, shielded as they were from responsibility by secrecy and by the virtual suppression of the right of appeal, except in trivial matters. It must be borne in mind, moreover that, even when their sentences may seem merciful, there was always behind them the most grievous infliction of an infamy which affected the honor and the fortunes of a whole lineage.

CHAPTER II.
MINOR PENALTIES

IN the preceding chapter the general penal system of the Inquisition has been considered, but for its proper comprehension a brief exposition of its several penalties is requisite. In this it is unnecessary to treat of confiscation and pecuniary penance which have already been discussed as constituting the financial basis of the existence of the Holy Office.

REPRIMAND.

Of the minor inflictions, the most nearly universal was the reprimand. It is naturally absent from the severer sentences of reconciliation and relaxation but, with these exceptions, scarce any defendant escaped it, no matter how groundless the accusation was proved to be, or how plainly his innocence was manifested. The freedom with which it was administered is evidenced in a phrase of frequent occurrence in the reports of the Toledo tribunal—“as no offence was proved, he was reprimanded and warned for the future.”[320] We have seen that some strict constructionists held that reprimand was incompatible with suspension, but that this principle was universally disregarded. The same authority asserts that no reprimand was to be administered without a formal sentence, but cases are numerous in which it is expressly recorded that the party was reprimanded without a sentence, and sometimes this was by the special command of the Suprema. In the Valladolid tribunal there were eight such cases in the year 1641.[321] To scold the defendant was one of the prerogatives of the inquisitor, from the use of which he rarely abstained, especially as it afforded the opportunity of expatiating on the benignity which imposed penalties so incommensurate with the offences.

The severity of the infliction varied with his temper and power of invective, but constant practice rendered him skilful in detecting the sensitive places, and in applying the lash where it would be most keenly felt. There were those among the victims who regarded this as a severer penalty than a pecuniary penance, and it is not surprising that it occasionally drew forth remonstrance and retort, which were promptly suppressed by the infliction of a fine for the expenses of the tribunal.[322] No record was made of reprimands, beyond the fact of their utterance, but there is one which chances to have been preserved as it seems to have been carefully elaborated and reduced to writing. It was administered by the Licentiate Juan de Mañozca, who had been President of the Chancellery of Granada, to an unlucky gentleman prosecuted for having said that belief in matters of faith was good breeding. He had made the case worse by arguing, in his defence, that he could conceive of no word more applicable to the matter than cortesía, and that his long residence at the court had familiarized him with all the niceties of the Castilian tongue. For this, as a proposition ill-sounding and savoring of heresy, Mañozca belabored him through ten closely-written pages of savage ridicule. “In the Andalusian tunny fishery” he said “there may be seen an infinity of tunnies, the smallest of them as big as you, and yet not one of them will show the least particle of salt, although they have lived in the midst of salt.” So he went on, quoting the Scriptures, the classic poets and Plato, to prove that the unfortunate culprit was an ignoramus, closely approaching a heretic. Such ignorance was likened to the unfruitful ears of corn which, according to Christ, are only fit to be swept up and burnt, and the diatribe concluded with the significant warning that it was the Inquisition which gathered such worthless stocks and delivered them to the secular arm, that they might pass through temporal to eternal flame.[323] Doubtless the culprit was a fool, but his folly merited no such terrific warning.

ABJURATION.

Suspicion of heresy, as we have seen, was, in itself, a crime requiring punishment. In accusations of formal heresy which failed of proof, there remained, as a rule, at least suspicion, and there was besides a number of offences which, though not in themselves heretical, were brought under the jurisdiction of the Inquisition by a more or less forced assumption that they inferred suspicion of heresy—that no one who believed rightly as to sacraments and points of doctrine could be guilty of them. In the Old Inquisition, this suspicion was classified as light, vehement or violent and these distinctions were retained in the New. Violent suspicion, however, may be discarded from consideration here, for it sufficed for condemnation and, in practice, it admitted of no disproof or explanation for, although theoretically it might be explained away, this was but a bare possibility. As Peña says, it created presumption of law, as when a man remained for a year under excommunication.[324]

The distinction between light and vehement suspicion was somewhat nebulous. Like everything else in the vague region of morals, it was incapable of accurate definition, and each case had to be decided on its own merits, according to the temper of the judges. Alberghini’s attempted test of infrequent or habitual performance of acts inferring suspicion fails utterly in practice and moreover leaves unsettled the more important and common class of cases where testimony was insufficient for conviction and yet too strong for acquittal.[325] Moreover, suspicion might be modified by exterior circumstances, as when Miguel Calvo tells us that, with Moriscos, however slender may be the suspicion, it must be treated as vehement.[326] It was evidently impossible to prescribe any absolute rule, and it is to the credit of the Inquisition that it rarely pronounced suspicion to be vehement, while light suspicion occurs in almost all sentences short of reconciliation. Thus, in the Toledo record from 1648 to 1794, there are three hundred and fourteen abjurations de levi and only fifty-one de vehementi—or about an average of one every three years.[327]

Whatever other punishment might be visited on suspicion, abjuration of heresy in general, and especially of the heresy suspected, was indispensable. This could be administered either in the audience-chamber, or in a public auto de fe, and was an impressive ceremony. In the face of a cross and with his hand on the gospels, the culprit swore that he accepted the Catholic faith and detested and anathematized every species of heresy, and especially that of which he was suspect. He pledged himself always to keep the faith of the Church and to be obedient to the pope and the papal decrees. He declared that all who opposed the Catholic faith were worthy of condemnation, promising never to join them, but to persecute them and denounce them to prelates and inquisitors. He swore to receive patiently and humbly all penance imposed on him, and to fulfil it with all his strength. If the abjuration was for light suspicion, he consented and desired that, if he failed in any part of this, he should be held as impenitent and he submitted himself to the correction and severity of the canons, so that the penalties prescribed in them should be executed on his person, and finally he called upon the notary to record it and on all present to serve as witnesses. If the abjuration was for vehement suspicion, he consented and desired that, if he failed in his promises, he should be held and considered as a relapsed and suffer the penalties provided for relapse. This was the difference between abjuration de levi and abjuration de vehementi, so often alluded to above, and it was of no small import under the canons. After the former, reincidence in the offence entailed no special penalty; it was at the discretion of the tribunal merely to repeat the previous sentence, or to aggravate it, as the case might appear to deserve. But, after the latter, reincidence was relapse, for which the canons decreed irrevocable burning, ipso facto and without trial. To impress this on the penitent, his abjuration de vehementi was written out and he was made to sign it. Then, on the next day after the auto de fe, he was brought into the audience-chamber, it was read to him and he was warned to observe its conditions for, if he should again fall into any heresy whatever, he would be treated as a relapsed without mercy, and it would be the same if he did not perform the penance imposed.[328]

ABJURATION