CHAPTER II.

THE INQUISITORIAL PROCESS.

In considering the judicial functions of the Inquisition, we shall meet with much that is abhorrent to our conceptions of justice. We shall see that the accused was assumed to be guilty and that the object of the tribunal was to induce or coerce him to confess his guilt; that, for this purpose, he was substantially deprived of facilities for defence and that the result, for the most part, depended on his powers of endurance which the judges, at discretion, could test to the utmost. It would not be easy to construct a system more repugnant to rational methods for the ascertainment of truth.

At the same time, the vices of the inquisitorial process, at the period under consideration, were not wholly confined to the Inquisition. It is true that it was responsible for their origin, in the thirteenth century, when the jurisprudence of Europe was undergoing reconstruction, and the methods which it framed for the conviction of heresy offered such advantages to the prosecution that they were adopted in the secular courts of nearly all the lands where the Holy Office found a foothold, and became an essential part of criminal codes. The judge, in place of an impartial dispenser of justice, grew to be virtually a prosecutor, with unlimited power of wringing confession from the accused; the latter was practically compelled to prove his innocence, and the trained and subtle intellects of the bench were engaged in conflict with the cunning or stupidity of the miserable wretches brought before them. On the one side was the pride, resolved not to be baffled, on the other the desperate effort at self-preservation and, in the unequal struggle, innocence was much more apt to suffer than guilt to escape. So completely did this identification of judge and prosecutor dominate the criminal jurisprudence of Latin Europe, that in France, until the law of December 8, 1897, after the jury system had been in use for a century, the judge, armed with the _sumaria_ or _dossier_ of incriminating evidence, opened the trial by interrogating the accused and assuming his guilt--an interrogation which was liable speedily to degenerate into a duel between them, in which the judge endeavored to break down the line of defence which the accused was obliged unskilfully to reveal.[1358]

In this the kingdoms of Aragon were strikingly exceptional, for the inquisitorial process, as we have seen, was prohibited. In Aragon itself the interests of the accused were carefully guarded. There were elaborate provisions against arbitrary arrest, although admission to bail was limited. Accusers had to give security and were liable to double costs and damages in case of failure to prove charges. Witnesses were diligently cross-examined and, in cases involving serious punishment, five disinterested jurists were associated with the judge in passing sentence, against which there was right of appeal. There was no public prosecutor, before the revision of procedure by the Córtes of Monzon in 1510, and then it took many years to bring the office into general use. The abuse existed of prosecutions _in absentia_ though, if the accused subsequently appeared, he had the right to appeal, and still worse was the custom of keeping the prisoner chained until his trial was concluded.[1359] In Valencia, and probably elsewhere, there was a peculiarly valuable privilege that no one, whether defendant or witness, was compelled to answer questions that would criminate him.[1360] In Biscay, the fueros, as revised in 1526 and in force until the Revolution, were very emphatic in providing the accused with all information necessary to his defence.[1361]

[Sidenote: _SECULAR PROCEDURE_]

In Castile the processes by accusation and by inquisition were both employed. An accuser, however, was obliged to give security and was subject to fines if it appeared that he acted through malice. If there was no accuser, the judge, or alcalde, made inquisition and proceeded summarily to try the case. When, under the impulse of Isabella and the guidance of Alfonso Díaz de Montalvo, the Córtes of Toledo, in 1480, revised the criminal jurisprudence of the land, their action served as a basis for all subsequent legislation. It breathes the spirit of justice--the rigorous punishment of guilt and avoidance of punishment of innocence. The courts were enjoined to quick despatch, the accused was to have all necessary opportunities for defence; if poor, counsel was supplied at the public expense; he could recuse any judge for cause and appeal from any decision, and he was always entitled to give bail. Prosecution _in absentia_, however, was allowed; after three summonses of nine days each, the accused could be prosecuted _in rebeldia_, as contumacious and be condemned.[1362]

While thus in Castile legislation was dictated by a sincere desire for justice, in practice the accused was subjected to unnecessary disadvantages and hardships. We chance to have the proceedings in the case of Francisco Fernández de Montemayor, of Seville, tried in Ciudad Real in 1499, on a charge of petty thefts on fellow-lodgers in an inn, in which the general course of procedure bears sufficient resemblance to that of the Inquisition to show that the latter borrowed its forms from the secular courts with modifications to facilitate conviction. When Montemayor was arrested in his inn, September 10th, his effects were sequestrated, locked in his chest and left in charge of the innkeeper. When money was needed for his prison expenses, the judges, on his application, sent the prison scrivener to take out a prescribed sum in the presence of witnesses. The witnesses on both sides were examined on a series of written interrogatories, a most imperfect method, and were not cross-examined. Their names were not concealed, but the accused was kept in gaol and was not present. His own examination was made by the judges in an _audiencia de cárcel_. He was allowed to retain an advocate, who presented a written defence. The charges were frivolous and, on October 28th, the judges pronounced that the fiscal had not proved his case, which acquitted the prisoner. His treatment in gaol had been harsh; he was an hidalgo and, a few days after arrest, he asked to be treated as a man of good lineage and not to be herded with criminals, whereupon he was placed in a cell, with a heavy chain, under close guard. On acquittal he begged to be released from his fetters, which was done on his swearing not to leave the prison--for he was not discharged. Unluckily, the testimony contained some heretical speeches, though the witnesses believed them to have been uttered in jest, as he was always striving to be jocular. The secular court could take no cognizance of them but the Inquisition claimed him and he was delivered to it in chains, November 9th. His trial had occupied six weeks; the Inquisition kept him for two years and, on November 10, 1501, it penanced him and made him abjure _de vehementi_. Doubtless the poor wretch was ruined.[1363]

[Sidenote: _THE SPIRITUAL COURTS_]

If we find reason to believe that the tribunals of the Inquisition were largely actuated by passion or greed, they were in this no worse than the secular courts. The constantly reiterated complaints of the Córtes, during the sixteenth century, assume that the whole judicial system of Castile, from the highest to the lowest, was not so much an instrumentality of justice as a venal organization to extort the largest possible sums from pleaders and to oppress the poor for the benefit of the rich.[1364] We might, perhaps, regard this as rhetorical exaggeration if we had not the opportunity of seeing how a court of the highest rank--the royal Audiencia of Seville--in 1598, disregarded all law and justice when it sought to gratify its spite on the magistracy of that city. We have seen (Vol. I, p. 362) the absurd quarrel raised with the judges by the inquisitors on the occasion of the obsequies of Philip II. The judges, unable to avenge themselves on the tribunal, discharged their wrath upon the civic authorities, who had sought to mediate and keep the peace. They arrested on the spot several of the highest officials, including two members of the great house of Ponce de Leon and, in spite of the indecency of sitting as judges in their own case, they prosecuted their prisoners. They took the testimony of thirty-seven witnesses on written interrogatories, containing leading questions, and accepted hearsay evidence of the veriest gossip. The accused were allowed to see the accusation framed by the fiscal, but not the evidence, and no opportunity of making defence was permitted. Thereupon their advocates recused the judges, but the recusation was not only rejected on the day of its presentation, but the accused and their advocates were all heavily fined for offering it and, the next day, sentence was pronounced condemning the prisoners to various terms of suspension from office, exile, fines and costs. Both they and the fiscal appealed, and a second hearing was held, in which the defendants at last were allowed to see the evidence. Both parties meanwhile had been applying to the Council of Castile, which ordered that the sentence should not be confirmed without being first submitted to it, but the judges anticipated this and, the day before the order was received, hastily assembled with closed doors and, in the absence of the accused and their counsel, affirmed the decision and ordered its immediate execution, with the exception of Ponce de Leon Almansa, who was of kin to one of them. The sentences were carried out with cruel vindictiveness. There was pestilence in the district to which the exiles were sent and they were brought back sick to Seville, where the Alcalde mayor, Juan Ponce de Leon, died and the others were treated with the utmost harshness.[1365] When the royal courts permitted themselves such arbitrary perversions of justice, we need not be surprised that the Inquisition was reckless, shielded as it was from responsibility by impenetrable secrecy. Between them, the Spanish people were sorely vexed.

To this the spiritual courts offered a contrast in their customary benignity towards clerical offenders, amounting almost to immunity. The course of procedure was that, when a denunciation was made to the provisor or vicar-general, he took testimony or sent an official to make inquisition; the accused was summoned and was admitted to bail; the trial took the shape of an action between him and the fiscal, who presented an accusation to which the defence made reply. Witnesses for the defence were examined, publication of evidence was made and, when both parties had concluded, the judge named a day for pronouncing sentence. From two cases of the sixteenth century, of which the papers are before me, it would appear that there was little delay, that formalities were loosely observed and that the proverbial leniency shown to the cloth rendered the whole a matter of comparative indifference. One of these illustrates the expiring episcopal jurisdiction over heresy and its supplantation by the Inquisition. In 1551, Diego de Carcano, a priest of Ciudad Real, was tried for heretical acts and speeches, which he freely admitted, saying that they had been in jest and that he ought not to have trifled with the things of God. The trial was concluded within three weeks and Diego was confined for a few days in a parish church with spiritual exercises, besides paying costs, amounting to about thirty-two reales. Two years later, Inquisitor Valtodano, on a visitation, chanced to hear of the affair; he treated the episcopal trial as invalid and vindicated together the faith and the inquisitorial jurisdiction by a second prosecution of the unlucky priest.[1366]

The laxity of the Church towards its erring members was still further illustrated by the reforms adopted in the provincial synod of Toledo, held in 1565 to receive the Council of Trent. The fiscal was ordered not to denounce any one to the judge; no inquisition was to be made, unless there was a legitimate general report against a culprit, and then the judge was required to investigate carefully whether it arose from malevolence or from reputable persons. If the fiscal desired to accuse any one he was subjected to the laws concerning accusers and, if he failed to prove the charges, he was liable for the costs and to punishment at the discretion of the judge. All pecuniary penalties were to be expended in pious uses, and not for the advantage of the bishop or his vicar-general, and an official was to be deputed to receive them and render a strict account.[1367]

* * * * *

The most marked distinction between the procedure of the Inquisition and that of the other jurisdictions was the inviolable secrecy in which all its operations were shrouded. There were, indeed, other evil peculiarities, but this it was which inflicted the greatest wrong on its victims and exposed the inquisitor to the strongest temptation to abuse his power. It was an inheritance from the thirteenth century, when the Inquisition early discovered the greater freedom of action and the increased popular dread resulting from the mystery which emancipated it from public opinion and veiled all its actions, until their outcome was revealed in the solemnities of the auto de fe. The Roman Inquisition retained it, but in a somewhat modified degree. All its officials were sworn to silence as to everything that occurred in the Congregation but, in 1629, this was explained as restricted only to matters that might prejudice cases.[1368] Very different was the awful silence so enforced in Spain that it formed an important factor in the power of the Holy Office.

[Sidenote: _SECRECY_]

It is not a little remarkable that, when the institution was introduced in Castile, so little was known of its practical working that its procedure was public, like that of the secular and spiritual courts. Thus, in 1483, the record of a trial in Ciudad Real speaks of the inquisitors sitting in public audience; the notaries specify as present at the hearing certain persons by name "and many others who were there present;" the inquisitors were listening to all who came before them, while the fiscal and notary were making reports.[1369] It was deemed necessary that there should be spectators to bear witness to the proceedings; sometimes these were connected with the tribunal, sometimes they were citizens called in for the purpose, whose names were regularly entered upon the record.[1370] Even the prison, subsequently guarded so jealously, was not as yet known as the _cárceles secretas_, but as a _cárcel publica_.[1371] In 1488, the Instructions order the records to be kept "in a public place, where the inquisitors customarily perform the duties of the Inquisition."[1372] The earliest indication of a change in this respect occurs in the Instructions of 1498, where the oath prescribed for inquisitors and other officials contains a pledge of secrecy.[1373] This did not, as yet however, extend to a complete exclusion of publicity, for some Toledo trials of 1501 describe the fiscal as presenting his _clamosa_, or demand for prosecution, where the inquisitors were sitting as customary in their public audience, but, during the trial itself, they sat in the "audiencia de cárcel."[1374] From the expressions used we may assume that as yet the inquisition building and the prison were separate; that public audiences were held in the former, and that the latter contained a room to which the accused could be brought from his cell when on trial. The _secreto_, which subsequently embraced the prison and everything beyond the ante-chambers, as yet only designated a chest or a room in which the records and registers were kept in safety.[1375]

Yet even during this early period there had commenced, in certain portions of procedure, a practice of secrecy which markedly differentiated the Inquisition from the ecclesiastical and secular courts. The suppression of the names and identity of witnesses and the strict seclusion of prisoners from the outside world are matters which will be more fully discussed hereafter, but already they had become distinctive features of the inquisitorial process, inflicting great hardship on the accused, which was keenly felt. The tendency of all such abuses to development, the facility with which the reasons alleged in justification could be extended over all the acts of the Inquisition, and the attraction of the arbitrary and irresponsible power thus gained, readily explain the rapid evolutionary process which enveloped, with an impenetrable veil of secrecy, everything connected with the tribunals, from the preliminary inquest and the arrest of the accused, to his discharge or appearance in an auto de fe.

[Sidenote: _SECRECY_]

The obligation of the oath of secrecy was rigidly construed when, in 1523, the vicar-general of Saragossa seems to have babbled about what he had heard when called in to vote at a consulta de fe, and the Suprema ordered the inquisitors to summon him and warn him not to reveal the secrets of the Holy Office.[1376] In 1544, Mari Serrana, on trial at Toledo, was charged with impeding the Inquisition, because she had endeavored to ascertain whether a certain person had testified in another case and what he had said--the mere attempt to learn what went on within those mysterious walls was treated as a crime.[1377] In 1547, when the tribunal of Granada was moved into new quarters, it found its secrecy imperilled by the fact that it was overlooked by some windows in the house of Francisco de Santa Cruz, and, on its complaint to Prince Philip, he ordered the corregidor to have those windows closed up--apparently without compensation to the owner.[1378] So impenetrable was the shroud enveloping all that took place within the tribunal that, when Philip II deemed it imperative to consult a distinguished surgeon who had been arrested, Inquisitor-general Quiroga left two applications unanswered and to a third replied that, if the person was there, he could not be taken out, nor could it even be told whether he was or was not a prisoner, whereupon the king desisted from his request. On this the comment of an inquisitor is that to all inquiries the answer must be that nothing is known.[1379] So when, in 1643, the Suprema argued against the claim of the Justicia of Aragon to grant his _manifestacion_ or habeas corpus in secular cases, the chief reason alleged was that, if a tribunal could be required to differentiate cases of faith from others and to admit that it had a certain person in its prison, and the cause, its secrecy would be violated.[1380] This was emphasized, in 1678, by a declaration of the Suprema that an inquisitor admitting that any individual was in the secret prison would incur excommunication removable only by the pope.[1381] It is easy to understand why the prison was habitually designated as the _cárceles secretas_ and why, when a person was arrested, he disappeared as utterly as though the earth had swallowed him.

At every step in the progress of a case minute precautions were taken to insure absolute secrecy. It was not only all officials who were thus sworn, but accuser and accused and their witnesses were subjected to the same obligation. As early as 1531, a witness when dismissed was ordered to observe silence as to all that he had said or heard, under pain of excommunication and a thousand ducats, and of the other penalties of those who violate the secrecy of the Holy Office.[1382] As late as 1817, in a trifling case which was suspended, the informer was fined for not having preserved secrecy.[1383] It was the same with the accused. At the very first audience, the oath administered to tell the truth contained a clause pledging him to silence, not only as to his own case but as to all that he might see or hear. When he was dismissed, whether to punishment or to freedom, he was required to sign a pledge under oath to the same effect, to which was added a threat of punishment, occasionally taking the shape of one or two hundred lashes.[1384] In the later years of the Inquisition this was frequently reinforced by including in the sentence a clause prohibiting the culprit from talking in any manner about his case.[1385] The tribunal thus was relieved from responsibility and could commit injustice without fear of unpleasant revelations, and the Holy Office could boast, as it customarily did, of the exquisite equity of its judgements, without danger of contradiction. To what extent this was justified may be guessed from a remark of Peña, that no inspection was allowed of the acts of the tribunals because they were often in conflict with the common law and the universal opinion of the doctors.[1386]

Nothing connected with the proceedings of the Inquisition was allowed to remain outside of its walls. Every letter, or mandate, or instruction, or warrant, sent out was invariably required to be returned with the answer or endorsement of its execution. Even the Edicts of Faith and Anathemas given out for publication in the churches were returned with statements of the day on which they were publicly read.[1387] This applied to the counsel entrusted with the defence of the accused. Not only was he sworn to secrecy and to communicate with no one concerning the cases, but the scanty papers entrusted to him were to be kept under lock and key and be scrupulously returned to the tribunal, so that there should be no trace or memory of them. The formal defence which he prepared had to be written by his own hand and no rough draft of it be preserved; no printer was allowed to print such a document nor, indeed, any other paper relating to the Inquisition, without special licence from the inquisitor-general or Suprema, under pain of excommunication and a hundred ducats.[1388] This jealous reserve explains the form in which the records of the Inquisition reach us--those of each process rudely but firmly sewed together and never bound, for they could not be given out to a binder nor could one be admitted into the sacred precincts of the secreto. These injunctions of secrecy were not allowed to be a dead letter. In the Edicts of Faith special clauses called for the denunciation of all cases of violation, or of papers concerning its acts being in the possession of any one.[1389]

[Sidenote: _SECRECY_]

Its procedure was guarded with the same anxious care from public knowledge. In 1573, Leonardo Donato, the Venetian envoy, who regarded the Inquisition as necessary to Spain, describes its action as so secret that nothing was known of its victims and their cases until their sentences were published in the autos de fe, but the fear entertained of it was so universal that little was said concerning it through dread of arousing suspicion. He had been able to learn nothing of its methods, but was told that they were good and that the sentences were always just.[1390] No one, in fact, was allowed to know what was its form of procedure. The Instructions, it is true, were necessarily printed. There was an edition of the _Antiguas_ in Seville, in 1536, reprinted in Madrid in 1576. The _Nuevas_ of 1561 were printed in 1612 and the whole were re-edited by Arguello, an official of the Suprema, in 1627 and 1630, but these were strictly reserved for use in the tribunals and their details were constantly subject to modification by the _cartas acordadas_ of the Suprema, which never saw the light. Experienced inquisitors drew up manuals of practice, many of which are still preserved in the MSS. of the archives and libraries, but this knowledge of the _estilo_ or methods of procedure was strictly confined to officials sworn to secrecy. It was apparently soon after the preparation of the Instructions of 1561 that a Doctor Blasco de Alagona had the audacity to ask for a copy of them, when the fiscal, to whom the petition was referred, declared that the granting of such a request would be unexampled, and he had no difficulty in proving that parties before the tribunal had no business to inquire into its methods; the Instructions were solely for its guidance and were to be known to others only by their results in the administration of justice. If they came to public knowledge, evil-intentioned men could debate whether the _estilo_ of the Inquisition was good or bad.[1391]

[Sidenote: _SECRECY_]

The extreme importance of the "seal" was fully recognized in assuring freedom of irresponsible action and in creating the popular impression of mysterious impeccability. Philip II, in his instructions to Manrique de Lara, in 1595, dwelt on this and pointed out that "without it the Holy Office could not preserve the untrammelled exercise of its functions" wherefore any official violating it must be punished with the utmost rigor.[1392] Apparently cases of infraction occurred, drawing from the Suprema a carta acordada pointing out that all the power and authority and reputation of those serving in the Holy Office rested upon secrecy. The more secret its affairs were kept, the more they were venerated by those from whom they were concealed. The neglect of this had aroused in the Suprema the greatest resentment, as it was a matter of so great moment to the estimation and respect in which the affairs and the members of the Inquisition had always been held. Therefore it had been resolved that the oath of secrecy, taken on admission to office, should be so construed that its infraction should constitute perjury and infidelity. Single witnesses should suffice for conviction; on a first offence the culprit should be suspended irremissibly for a year and pay fifty ducats, and on a repetition be perpetually dismissed. Even if not convicted he should realize that, in the forum of conscience, he could not draw his salary. This secrecy covered not only matters of faith and depending thereon, but all votes, orders, determinations, letters of the Suprema, informations of limpieza and all other matters, no information concerning which was to be given to the parties concerned or to any outside person, while even the public utterances of the tribunals were not to be spoken of. Moreover, the above penalties and major excommunication were incurred by all who, knowing of infractions of secrecy, did not report them to the Suprema. Finally, this carta was ordered to be filed with the Instructions, to be read annually to the assembled officials.[1393]

The instructions to commissioners warned them that the existence and preservation of the Inquisition depended chiefly on the absolute secrecy to be observed as to all its affairs.[1394] This continued to the end. A decree of the Suprema, December 7, 1814, speaks of the seal which is the soul of the Inquisition.[1395] In fact, there was no hesitation in assimilating it to the seal of confession and in employing the casuistry which justified a confessor in denying under oath what he had learned in the confessional. Similarly the official was told that no oath was binding when the affairs of the Inquisition were concerned--he could depose as to what he knew as an individual, but not what he knew as an official entrusted with its secrets.[1396] We can understand the significance of the popular saying _con el rey y la inquisicion, chiton!_--keep silence as to the king and the Inquisition.

Even within the tribunals the same mystery was observed in investigating cases of infraction. When an intimation was received that secrecy had been violated, the junior inquisitor examined into it and wrote out the "information" with his own hand, and without allowing any one to know of it. This was then deposited in a separate chest, of which the senior inquisitor held the key; the Suprema was advised of the matter and its instructions were awaited.[1397]

Not the least important result of this secrecy was the fact that it enabled the Inquisition to combine legislative and judicial functions in a manner known to no other tribunal. It framed its own code and administered it in darkness. It is true, as we shall have occasion to see, that many of the regulations and limitations of the Instructions were inspired by a sense of justice, but this mattered little when the secrecy, so jealously preserved, practically left everything to the discretion of the tribunal, until the Suprema absorbed and centralized everything into itself. Shielded from responsibility--save to the more or less perfunctory occasional visitation of an inspector--there was scarce any injustice that could not be safely perpetrated, or any enmity that a perjured witness could not gratify. The secrets of those dark prison-houses will never be known, even by the records, for these were framed by those whose acts they recount and they may be true or falsified. What was the real administration of so-called justice can only be guessed by occasional revelations such as we chance to have in the trials of Archbishop Carranza, of the Nuns of San Placido, of Gerónimo de Villanueva, of Fray Froilan Díaz and, when the principles of justice were set at naught by the chiefs of the Inquisition in the cases of those so prominent, it is not likely that the obscure were treated with greater consideration by the tribunals. At its best, the inquisitorial process left much to the temper and disposition of the judge; as modified by the Inquisition, the fate of the accused was virtually at the discretion of the tribunal, and that discretion was relieved of the wholesome restraint of publicity. At a time when, as we have seen, the secular courts, although open to the public, were little better than instruments of oppression and extortion, it is not to be imagined that the inquisitorial tribunals, shrouded in impenetrable secrecy, and largely dependent for support on fines and confiscations, were scrupulous in the administration of the cruel laws against heresy.

* * * * *

[Sidenote: _USE OF THE FISCAL_]

In the original medieval Inquisition the procedure was a pure _inquisitio_, the inquisitor frankly acting as both prosecutor and judge, collecting testimony, examining witnesses, seeking to make the accused confess or convict himself, and passing sentence. As the institution, in the fifteenth century, declined and became disorganized, its duties were to some extent resumed by the bishops, in whose courts the pressure of multifarious business had long rendered necessary a prosecuting officer, known as the promotor fiscal, duly trained in the civil and canon law. Cases of heresy inevitably followed the routine of the court and consequently assumed the form of actions between the fiscal and the accused, as plaintiff and defendant, with the bishop or his Official as judge.[1398]

This, at least in appearance, removed one of the most repulsive features of the pure inquisitorial process, as the judge was no longer a party to the case and could affect a semblance of impartiality, even though he were, in reality, the instigator of the prosecution. When the Holy Office was established in Castile, it assumed to be merely the continuance of the Old Inquisition; in its collections of privileges it included papal thirteenth century bulls, along with the modern ones, and the ferocious laws of Frederic II with the cédulas of the Catholic kings.[1399] Yet it knew so little of the older formulas and procedure that it adopted those of the secular and spiritual tribunals of the period, and thus its practice assumed the external form of _accusatio_ rather than of _inquisitio_, with a fiscal, or public prosecutor, as an accuser. While, on the surface, this was a step towards fairness and justice, care was taken that the interests of the faith should not suffer. It gave to the inquisitors the assistance of a trained lawyer, whose business it was to prove his charges, who lost no opportunity of exaggerating the offences imputed to the accused, who assumed that they had been proved, who resisted all the efforts of the defence to disprove them, and who was free from all the penalties and responsibilities of an accuser. The form of sentence, adopted at the beginning and steadfastly adhered to, asserts that the judges have been listening to a case pending between the fiscal and the defendant, and they find that the fiscal either has proved his charges completely or partially, or that he has failed to do so.[1400] This was an assumption perfectly false and intended to deceive the people when read in an auto de fe.

It was the inquisitors who gathered testimony. The Instructions of 1484 expressly order the examination of witnesses to be made personally by an inquisitor and not to be committed to a notary, unless the witness is too sick to appear and it should be indecent for the inquisitor to go to him, when he could empower the ecclesiastical judge to perform the duty with a notary.[1401] Business was too pressing, however, for the inquisitors always to examine witnesses and they frequently deputized persons to act for them, but those deputies were never the fiscal, and the apologetic tone of the commission shows that it was irregular and demanded an excuse.[1402] As time went on, the tendency to shirk the labor increased; the notaries were allowed to examine, by the Instructions of 1498, provided it was in presence of the inquisitor; then this condition was neglected, in spite of vehement remonstrance by the Suprema, and finally, in the later period, when there was little serious work to be done, special commissions, as we have seen, were common, apparently with no greater excuse than the indolence of the inquisitors.[1403]

[Sidenote: _USE OF THE FISCAL_]

Still, the fiction was preserved that the witnesses were presented by the fiscals, although the Suprema, in 1534, informed them that it was no part of their duty to collect evidence, although if they obtained any, they were to communicate it to the inquisitors.[1404] Their duties, in fact, in addition to seeking the condemnation of the accused, were those of a superior clerk of the court--to draw up accusations, to conduct correspondence, to advise the inquisitors, to marshall the evidence, to keep the records in order or to see that the secretaries did so, to attend to the execution of sentences, and to exercise a general supervision over the officials, besides attending the meetings of the _junta de hacienda_ and looking after the financial interests of the tribunal.[1405] The fiscal, moreover, served a useful purpose as a bogey to frighten the accused, who were constantly threatened with what would happen if they did not confess before he was admitted to present a formal accusation, in which he customarily demanded torture and relaxation for them--but, after all, his chief use was to preserve the fiction that the prosecution was an action between parties. As Simancas says, even when the culprit confesses, the fiscal must present an accusation, in order that a judgement may be based on accuser, accused and judge.[1406] In short, he was simply one of the officers of the court who, as a trained lawyer, gave to the inquisitors, who were apt to be theologians, the benefit of his legal knowledge. His only real position as a party to an action was a distinct disadvantage to the accused for, in case of acquittal or of a sentence which he deemed too light, he had the right, not infrequently exercised, of appealing to the Suprema, and consequently his assent to the decision was necessary. As his dignity gradually increased, he was classed among the judges by the Córtes of Aragon in 1646;[1407] we have seen how he finally came to be known as "inquisitor-fiscal" and how his place was generally filled by one of the inquisitors, who, however, abstained from the final vote on the case. The fiscal, indeed, from an early period was admitted to the consulta de fe, where he could state facts and advance arguments--a most indecent privilege--though he was required to depart before the vote was taken. In 1660 this was discontinued, not in consequence of its shocking incongruity, but because there was a troublesome question of precedence between him and the episcopal Ordinary, whose duty it was to be present.[1408]

There was nothing in the function of the fiscal to prevent the inquisitor from initiating proceedings on the strength of any rumors that might reach him, or of compromising evidence gathered from the confessions of others. He had not to wait for the fiscal's action, but could order an inquest to be made and testimony to be taken and, when this was done, it was given to the fiscal to be put into shape for the formal prosecution. No matter how upright might be the inquisitor, the mere fact that he had ordered an arrest and trial necessarily committed him to belief in the guilt of the accused; he was unconsciously prejudiced from the start and to acquit cost a greater effort than to convict. Thus although externally the form of procedure was _accusatio_, in reality it was _inquisitio_, and the injection of the fiscal as accuser only diminished the chances of the defence, by giving the inquisitors a skilled legal assistant in the conduct of a prosecution, in which they were all prosecutors.

Yet, whatever we may think of the morality of the inquisitorial process, there can be no doubt as to its efficacy. In studying the long and minute records of the trials, where every detail is set forth in writing, it is instructive to see how often the accused, who commences by boldly asserting his orthodoxy, comes in successive audiences to make some admission of which advantage is skilfully taken and gradually the denial breaks down, or perhaps yields to the terrors of the accusation and the publication of evidence, ending in complete confession and eager implication of kindred and friends. The situation of the accused, in fact, was helpless. Standing up alone before the stern admonitions of the trained and pitiless judge; brooding in his cell, cut off from all external communication, during weeks or months of interval between his audiences; apparently forgotten, but living in the constant uncertainty of being at any moment summoned to appear; torturing his mind as to the impression which his utterances might have made, or the deductions drawn from his admissions or denials; balancing between the chances of escape, by persistent assertions of innocence, and those of condemnation as an _impenitente negativo_, and urged by his so-called advocate to confess and throw himself on the mercy of the tribunal--it required an exceptionally resolute temperament to endure the prolonged strain, with the knowledge that the opponent in the deadly game always had in reserve the terrible resource of the torture-chamber. The whole course of the procedure was based on the assumption that the accused was guilty; that it was the province of the tribunal to induce or compel him to confess his guilt and, in the great majority of instances the assumption was correct. To those who regarded aberrations from the faith as the greatest of crimes before God and man, and their punishment as the most acceptable service that man could render to God, this presumption of guilt served to justify the cruelty of the procedure and the denial of all facilities for defence which, to those trained in the principles of English justice, seem the imprescriptible right of the accused, whether innocent or not.

[Sidenote: _THE INQUISITORIAL IDEAL_]

There can, indeed, be no doubt that, amid much greed and callous indifference to justice, there were men engaged in the service who deemed themselves to be doing the work of God and that their methods were merciful. The Inquisition was not as other tribunals which only punished the body; it asserted its high and holy mission to be the saving of souls. As the inquisitors of Valencia said, in 1536, to Miguel Mesquita, on his trial for Lutheranism, they required of him nothing but the truth and, if he had fallen into error, they sought to disabuse him and to cure his conscience so that his soul might not be lost.[1409]

The Instructions of 1561, which remained to the last the basis of procedure, are emphatic in cautioning inquisitors not to be led astray, either by the witnesses or by the confessions of the accused, but to determine all cases according to truth and justice; they must preserve strict impartiality for, if they lean to one side or to the other, they can readily be deceived.[1410] If we may believe the veteran inquisitor Páramo, the Holy Office was so conducted on this lofty plane as to be an unmixed blessing to the land. Its holiness, he says, is so conspicuous that there is no opening for hatred, favor, subornation, love, intercession, or other human motive. Every act is performed with such conscientiousness and regard for equity and justice; the inquisitors so investigate everything, undisturbed by the multitude, that they inspire all men with dread of the crimes which are brought before them and, in the all-pervading silence, they act with incredible conscientiousness. The evidence of witnesses is scrutinized in the light of their character and quality and those who are found to bear false-witness are most severely punished. The accused, while detained in the prisons, are treated kindly and liberally, according to their condition; the poor and the sick are abundantly furnished with food and medicines, at the expense of the fisc, and are favored in every way. Not only are the utterances of witnesses investigated with distrust but, as Time is the revealer of truth, cases are not hurriedly finished but are prudently prolonged, as is requisite when there is such peril of the life, fame and property, not only of the accused but of his kindred. If his innocence appears probable, every effort is made to prove it and, if it is proved, to avert from him any loss of reputation, for which reason he is carried on horseback, adorned with laurels and palms like a victor in a triumph--a spectacle inspiring to the souls of the timid, depressed by the severity with which the guilty are punished. Those who are restored from such peril to their former condition never cease to thank God for placing on earth a tribunal of which the chief care is to uphold the honor of the innocent. When inquisitors punish heretics it is not with the desire to destroy them, but that they shall be converted and live. In judging and chastising, the Holy Office labors to amend him whom it punishes, or to benefit others by his punishment, so that they may live in security when the wicked are removed.[1411]

To what extent this idealization of inquisitorial methods was justified, we have had some opportunity to see, and we shall have more.