CHAPTER III.

ARREST AND SEQUESTRATION.

Although the power to arrest arbitrarily was inherent in the inquisitorial functions, and all secular officials were bound to lend assistance if necessary, still, in practice, it required justification by sufficient evidence in hand. This was obtained in various ways. The inquisitor might learn that public rumor designated a person as guilty of heretical acts and might cause secret inquest to be made in verification. In the prevalent forms of heresy, such as that of Jewish and Moorish apostates, the most frequent source of incrimination was the confessions of accomplices on trial or under Edicts of Grace. In other matters, the initiative came largely from denunciations, which were stimulated and favored in every way, especially by the secrecy which relieved the informer from responsibility.

No duty was more strenuously inculcated on the people than that of denouncing any utterance or act partaking of _calidad de oficio_--that is, which came within the cognizance of the Holy Office. Divine law required this under penalty of mortal sin, and ecclesiastical law under that of excommunication.[1412] From this no ties of blood furnished release. It is true that, under the imperial jurisprudence, accusations of near relatives were forbidden; a mother could not accuse a son except of offences against herself and even a man brought up in another's house could not accuse his benefactor.[1413] But Simancas, while highly approving of this, says that there are two cases in which a son must accuse his father--one, when under examination by the Inquisition, the other, when the father is a persistent heretic and, as the obligation of the son to the father is of the highest, this includes all other cases.[1414] The Instructions of 1484 offer mitigation of punishment to minor children who spontaneously denounce their parents, and Alfonso de Castro relates that he denied absolution to a young man, perfectly orthodox in faith, who in confession, in response to interrogatories, admitted that his father was a Judaizer, but refused to denounce him in view of the consequences to himself of poverty and infamy.[1415]

The annual publication of the Edict of Faith, with its accompanying anathemas, proclaimed this imperative obligation in the most solemn manner and, at the same time, furnished a list of the offences to be denounced, thus rendering every one a spy upon his neighbor. The denunciation might be either verbal or written and, if written, either anonymous or signed; it could be made to a tribunal or to any commissioner, and it was expected to contain the names of witnesses to be summoned in its support. These denunciations came in more frequently after the publication of the Edict of Faith, and also about Easter, when the faithful confessed in preparation for the indispensable paschal communion, and the confessors enquired whether they had denounced whatever they had heard, seen or understood that was, or appeared to be, contrary to the faith or to the rights of the Inquisition, and absolution was withheld from those refusing to do so. This denunciation and the evidence of the witnesses summoned in its support, or the testimony acquired by inquest, or by the confessions of those on trial, constituted the _sumaria_--the _instruction préparatoire_ of French practice.

The tribunal, however, was held not to act summarily in so grave a matter as an arrest casting infamy on an entire lineage. After the first tumultuous period, when no one was safe from arbitrary imprisonment, the portions of the evidence which conveyed the nature of the charge, without the name of the accused, underwent the process of _calificacion_, or censorship, to determine whether they presented _calidad de oficio_. We have seen, in the cases of Carranza, of Villanueva and of Froilan Díaz, how important was the function of the _calificadores_, or censors, and how much sometimes depended on the manner in which the evidence was submitted to them. In the rehabilitation of the Nuns of San Placido, they were careful to declare that, if they had had to act upon the testimony laid before their predecessors, they would have reached the same conclusion. Against such garbling there could be no guarantee, in the profound secrecy enveloping every act of the tribunals.

[Sidenote: _CALIFICACION_]

The calificadores were learned theologians, whose duties we have already referred to (p. 263). Some were regular appointees, but any one could be called upon, nor could he refuse to serve without pay. When there was not unanimity, the inquisitors decided or submitted the case to others. There seems to have been no settled or absolute rule. In 1634, in the case of Jacques Garrigues, a wandering French beggar, professing sanctity and curative powers and claiming to be a messenger of God, not without indications of insanity, the two inquisitors joined with four calificadores in considering the evidence before arrest, but this seems to be exceptional.[1416] The resource of calling in successive calificadores in obscure cases frequently led only to a hopeless divergence of opinion, bewildering rather than assisting the inquisitors. When, in 1640, the Bernardine Fray Tomas de Nieba defended some subtle conclusions in scholastic theology, there were eleven calificadores called into service, of whom some found nothing to censure, others that the doctrine was a condemned one, others again that it merely approached to error. In the same year, in the similar case of the Franciscan Fray Juan Lazaro, one calificador pronounced his doctrine to be obscure and perilous, if not formally, at least virtually, heretical; another that to defend it was a most grave error, while two others could find in it nothing objectionable. Yet Lazaro was put on trial and, after the case had traversed its various stages for months, it was suspended, though Lazaro was ordered in future to teach the opposite opinion.[1417]

At length a carta acordada of October 8, 1708 sought to regulate the system. In all cases requiring calificacion, a correct extract was to be made from the evidence as to the acts and speeches charged, with all circumstances contributory to a clear understanding. This was to be sent to one of the calificadores, who was to keep it at least three days, and return it with his opinion, not only as to the requisite censure but also as to the defence that could be made. It was thus to pass from one to another, after which the tribunal was to call them together to frame a common opinion. Books and papers were to be treated in the same way and there was no obligation of secrecy between the parties called in.[1418]

All classes of charges were not subjected to calificacion, for there were numerous and important groups of offenders who were deprived of this safeguard, slender as it was at the best. Judaizers and Moriscos, renegades, bigamists, those administering sacraments without being in priestly orders and solicitors of women in the confessional were not entitled to it.[1419] Thus taken as a whole, up to the middle of the eighteenth century, the major portion of the business of the tribunals was exempt from calificacion and practically it was limited to the refinements of venturesome theologians, to the degree of heresy involved in more or less picturesque blasphemy, the culpability of careless or reckless talkers, and the implied pact with the demon in the conjurations of wise-women and treasure-seekers. Like much else in the Inquisition, designed for the protection of innocence, its working effect was reduced to a minimum.

[Sidenote: _THE CLAMOSA AND THE CONSULTA_]

At what period calificacion was introduced it would be difficult to say with precision. Llorente assures us that in 1550 it was not as yet in use.[1420] This is incorrect for, in 1520, we find the Suprema ordering that calificadores shall not be appointed without its consent and on the simple petition of aspirants.[1421] By that time the custom was evidently established and, in 1556, the Suprema explained it, not as a protection of innocence but as a means of placating the Ordinaries and showing them that inquisitors were not seeking to extend their jurisdiction beyond heresy.[1422] The Instructions of 1561 merely provide that, when there is sufficient testimony in a case pertaining to the Inquisition, if it requires calificacion, theologians of approved learning and character shall be consulted, thus inferring that this is unnecessary when ceremonies known to be Jewish or Moorish are concerned, or manifest heresy or fautorship.[1423] The Suprema felt it necessary, in a carta acordada of July 11, 1569, to warn calificadores to confine themselves to defining the nature of propositions submitted and not to say whether or not there was _calidad de oficio_--a limitation which they outgrew. Another carta of November 22, 1577, shows that it had become by this time a recognized preliminary to arrest, by ordering that, if an arrest should be necessary without it, there should at least be calificacion before the formal accusation is presented, which occurred in a later stage of the proceedings.[1424]

In the gradual absorption of all initiative by the Suprema, so that eventually no arrest could be made without its order, the importance of calificacion declined. Calificadores continued to be appointed, but they seem to have been rather ornamental than useful members of the official family, if we may judge from the variation in the number attached to the different tribunals. The table in the appendix shows that, in 1746, Madrid and Llerena had none, while Valencia rejoiced in forty. They still had a function, however, in the censorship of the press, and tribunals that were insufficiently supplied could always summon theologians to their aid when necessity demanded their services.

* * * * *

As the sumaria was careful to recite that there was sufficient proof, that all formalities had been observed, and that further investigation was unnecessary, the calificacion completed the preliminaries. The next step was the presentation by the fiscal of his _clamosa_ or demand for the arrest of the accused. In the fully developed formula of this, he presented and swore to the sumaria, and embodied the calificacion as showing that the culprit merited the severest punishment, to which end he asked for arrest and imprisonment, with sequestration or embargo of property, promising in due time to present a formal accusation and asking that meanwhile the registers of the other tribunals be examined with the view of securing further evidence. Forms of this were provided suited to the various classes of offences and to the cases of the absent or dead.[1425]

It manifests a praiseworthy desire to avoid precipitate action that a consulta de fe, or consultation of the inquisitors with the consultores and Ordinary, was still technically required before issuing the warrant of arrest. The existence of something of the kind is indicated, as early as 1509, by an order of the Suprema that when there is not unanimity it must be consulted before arrest is made.[1426] Yet, in 1521, a special order requiring such a consulta de fe in the case of Moriscos would infer that the rule was otherwise obsolete.[1427] That it was so is shown by subsequent cases and, even as regards Moriscos, in a number of prosecutions at Daimiel, between 1540 and 1550, the warrants are issued immediately on presentation of the clamosas.[1428] The Instructions of 1561 revived the practice, but did not enjoin it as essential, leaving it virtually to the discretion of the inquisitors.[1429] After this we find it frequently observed and, in the case of Elvira del Campo, accused of Jewish practices, in 1567, there is a consulta prior to the clamosa and a second one afterwards before the warrant of arrest is issued.[1430] When solicitation in the confessional was subjected to the Inquisition, the desire to shroud the offence in obscurity led to a regulation, in 1564, that only the vicar-general should be called into consultation and, in 1600, even he was excluded; the inquisitors were to consult only with each other and then await the orders of the Suprema.[1431] As the rule became established that the Suprema was to be consulted before arrest, these formal preliminaries became of less importance and, in the eighteenth century, we are told that the consulta was no longer held, the reason alleged being that the inquisitors then were jurists.[1432]

[Sidenote: _ARBITRARY ARREST_]

Apart from these formalities, there was an evident desire on the part of the chiefs of the Inquisition to prevent injustice arising from hasty and inconsiderate action. In the reformatory Instructions of 1498, inquisitors are ordered to be careful and to arrest no one on insufficient evidence--an order the frequent repetition of which proves how little it was regarded.[1433] It was thoroughly understood that the mere fact of imprisonment inflicted indelible infamy and all the authorities urge the utmost caution in the exercise of this tremendous power.[1434] In theory, at least, stronger proof was therefore required by inquisitors than by the judges of other courts; it ought to be as strong as that which justified torture--what was known as _semiplena_--but this merely consisted in the evidence of a single unexceptionable witness; when there was apprehension of flight, less was required and Sousa, a Portuguese authority, tells us that in heresy flight is always to be apprehended.[1435] It is true that, in 1630, the Suprema ordered that arrest on the testimony of a single witness should not be made without its permission, but this exercised little restraint. Such an arrest was made, in 1638, of Domingo de Mezquita, with a sort of apologetic explanation that he was a Portuguese and had already been tried on the same charge of Judaism.[1436]

One or two cases will show how little real benefit in practice the accused derived from all this elaborate parade of preliminary precautions. In Toledo, June 5, 1501, the fiscal informed the tribunal that Isabel, daughter of Alvaro Ortolano, was defamed for heresy and asked for her arrest. The inquisitors replied that they would order it if sufficient evidence was presented, whereupon he offered the testimony of a prisoner that she had heard Isabel say that she observed the Jewish fasts and on this a warrant of arrest was promptly issued. Considering that the accused was a child ten years of age her summary arrest on evidence so flimsy shows how little impression the Instructions of 1498 had produced.[1437] The Toledan inquisitors did not grow more cautious with time. September 16, 1541, two workmen on the cathedral appeared before them and accused Juan García, a fellow-workman, of having revelations from God in his dreams. A warrant was at once made out; the portero was ordered to have him present that afternoon and, if he demurred, to take him to the prison. He accordingly had his first audience the same day.[1438]

In these arbitrary proceedings the function of the fiscal was purely fictitious and he and the inquisitor, if they had any sense of humor, must have smiled as they acted their parts in the tragi-comedy. In 1532, before Fernando Loazes, the distinguished inquisitor of Barcelona, the fiscal appears and states verbally that it has come to his knowledge that, when the impenitent and relapsed heretic Joana, wife of Gil Tacis, was to be arrested, her husband had sought to conceal her, wherefore he should be arrested as a fautor of heresy and impeder of the Inquisition and, in due time, the proper "information" would be presented. The only evidence was that of Joana, taken by Loazes himself, but he gravely demanded to be informed and he ordered the summoning of all the witnesses whom the fiscal desired to produce. Then the fiscal, to enlighten him, presents the evidence from the record; Loazes orders it to be inserted in the acts of the case, pronounces it sufficient and issues the warrant of arrest.[1439]

In the secrecy of the tribunals there was thus nothing to prevent the exercise of discretional power to oppress the innocent as well as to punish the guilty. That it was so abused appears from the remonstrance of the Córtes of the kingdoms of Aragon, about 1530, complaining that the inquisitors arrested people for the slightest causes and on mere report, and then sometimes dismissed their prisoners without penance or with very slight sentences, thus inflicting infamy on the parties, their kindred and descendants, which was not effaced by the release. Arrests, they urged, ought to be made only for grave offences and on sufficient proof. To this the inquisitor-general disdainfully replied that the laws had been observed; if the complainants thought otherwise, let them produce instances.[1440] This spirit did not promise amendment and, although the Instructions of 1561 prescribed caution and restraint, matters must have grown worse through subordinates aping their masters, for the Concordia of 1568 provides that familiars must not be allowed to make arrests without orders from the inquisitors.[1441]

[Sidenote: _SEGREGATION OF ACCUSED_]

Even after the Suprema had required to be consulted prior to ordering arrest, small respect was paid to formalities. In criticizing, August 25, 1695, the report of cases pending in Valencia, the Suprema expresses astonishment that an arrest should have been made previous to the calificacion of the charges. In this case the accused was thrown into prison October 22, 1694, and the calificacion followed, February 9, 1695, but the Suprema contented itself with this rebuke and merely ordered the prosecution to be pushed and not be allowed to become immortal.[1442] The Suprema need not have been surprised at this trifling informality in view of the atrocity of a group of cases comprised in a Valladolid report of July, 1699. Francisco Hernández Castañeda had been imprisoned August 30, 1697; his case is reported in the same state as before, there being no testimony against him. Baltazar González Cardozo, aged 14, was arrested August 15, 1698, and there is no evidence against him. Ana Gutiérrez, aged 9, was arrested August 14, 1697, and there is nothing against her as yet. Leona de Paz was arrested September 15, 1698, and there is no proof against her.[1443] Thus these poor creatures had lain in gaol for one or two years without a scintilla of evidence to justify their arrest, and the fact that the tribunal coolly makes this report indicates that there was in it nothing unusual or regarded as scandalous.

Among the reforms which Carlos III attempted to introduce towards the close of the eighteenth century was that of requiring manifest proofs of heresy as a necessary preliminary to arrest, but Llorente informs us that his decrees were not obeyed.[1444] Still, in time there was an improvement in this as in so many other directions, perhaps partially influenced by the poverty of the Holy Office and its desire to avoid the maintenance of poor prisoners. Thus, in the case, at Cuenca, of Juan Francisco de la Landera, a _jubilado_ notary of confiscations, prosecuted in 1816 on suspicion of being the author of a memorial to the king and of other offences, he was allowed to be at large during nearly the whole course of the trial and it was not until after the presentation of the accusation and his reply that it was voted to imprison him and embargo his property.[1445]

* * * * *

The reason commonly alleged, in deprecation of reckless arrest, was the infamy cast on the accused and his kindred, but this was by no means the only infliction peculiar to the Inquisition. There was special hardship in the segregation at once imposed on the prisoner. From the moment of his arrest, the utmost care was taken to prevent his exchanging a word with any one. When it took place at a distance, the commissioner was instructed to observe this with the utmost rigor, both in confining the prisoner on the spot and in sending him to the tribunal. If two or more were arrested simultaneously, they were strictly kept apart, both in prison and on the road. Thus, in 1678, when several Judaizers were to be seized at Pastrana, the instructions from Toledo were that they were at once to be shut up, _incomunicado_, in houses of officials, and to be sent to Toledo one by one, observing rigid precautions that they should speak with no one. Each was to be under charge of a familiar and, if there were not enough in Pastrana, those of the neighboring towns were to be called upon.[1446] The misery caused to the prisoner and his family by the arrest was intensified by this sudden inhibition of all exchange of affection and all instruction and advice as to what they were to do in their affliction.

[Sidenote: _IMPORTANCE OF SEQUESTRATION_]

Another feature, falling with especial severity on the poorer classes, arose from the rule of the Inquisition to cast all expenses on its prisoners. The officer who made the arrest was instructed to bring with him a specified sum to be deposited with the alcaide of the prison for the maintenance of the prisoner; also a bed for him to sleep on and clothes for him to wear. If, as usually was the case, the required amount was not found in cash among the effects of the culprit, enough of his household goods was sold at auction to meet the demand. The working of this is seen in the case of Benito Peñas, a poor ploughmaker of Cobeña, near Alcalá de Henares--a half-crazed devotee, who created scandal by denying that Christ had died on the cross. The order for his arrest by the Toledo tribunal, January 25, 1641, required the familiar to bring with him 30 ducats for expenses and a bed. The only coins found in Benito's possession amounted to 19 cuartos vellon, equivalent to about 2-1/2 reales: so on Sunday, February 10th, all his little possessions of tools, furniture and clothing, except the garments on him and two old shirts, were sold at auction. Even the rosary in his hands was included, but the total proceeds, after deducting charges, amounted to only 20 ducats. Of this about a half was absorbed by the expenses of guards and conveyance to Toledo, and only 105-1/2 reales were delivered with him at the carceles secretas, out of which the tribunal refused to pay anything to the familiar for his time and labor. Benito's mental unsoundness developed rapidly in his incarceration and, in August, he was discharged as irresponsible. The authorities of Cobeña were obliged to take him home at their own expense, and doubtless to support him afterwards, as he had been deprived of all means of earning his livelihood, while, with customary inquisitorial logic, in spite of his insanity, he was condemned to wear a parti-colored garment of gray and green, in penance for his heresy.[1447] In the case of a religious, if his _peculium_ was insufficient to furnish the desired amount, the superior of his convent was required to complete it.[1448]

* * * * *

Another feature of extreme severity which, however, was common to secular and episcopal as well as to inquisitorial practice, was the sequestration which accompanied arrest in all cases involving confiscation. The losses and hardships incident to this were fully recognized in secular proceedings and, in 1646, the Córtes of Aragon endeavored to mitigate them and also to prevent the frauds which were admitted to be frequent.[1449] On the other hand, to have the property of the accused in the power of his family was to risk its dissipation before the conclusion of the trial; it had to be preserved at all hazards and the only way to do this was to make sure of it by seizure at the moment of arrest. The importance attributed to this by the Holy Office is seen in the details which form so prominent a portion of the Instructions. It is true that the canon law strictly prohibited the seizure of property, before a sentence of condemnation had been duly rendered, but this had been framed at a time when the temporal lords enjoyed the confiscations, and was disregarded when they enured to the benefit of those who decreed them.[1450]

The alguazil executing a warrant of arrest was accompanied by the _notario de secrestos_, or notary of sequestrations, who at once seized all visible property and compiled a minute inventory. It was then placed in the hands of a _sequestrador_ or _depositario_, who held it until the case was decided, when, if confiscation was decreed, he handed it over to the receiver; if not, it was returned, or what was left of it, to the owner.

In the earliest instructions, the receiver and his scrivener accompanied the notary of sequestrations, and two copies of the inventory were made. Much conflicting legislation followed, directed to finding means for preventing the receiver from appropriating portions of the sequestrations, but the trouble was perennial and, in interrogatories drawn up for inspectors on their visitations, there was one which required all officials to declare whether the receiver had taken any sequestrated property before the case of the owner was determined.[1451]

[Sidenote: _THE INVENTORY_]

Irregularities continued and, in 1633, some respect was paid to the interest of the accused by a rule that a representative appointed by him should be present, with the receiver and notary, when seizing the property and making the inventory. In 1635, this was followed by requiring the senior inquisitor to report promptly to the Suprema all details as to kind and amount of property sequestrated, and whether any collusion or secreting of goods had occurred--a mandate of which the frequent repetition shows the difficulty of its enforcement.[1452] Finally, in 1654, Philip IV assembled a junta to formulate regulations by which, when farmers of the revenue were arrested, the interests of the royal fisc, of all creditors, and of the owner if acquitted, might be protected. These provided that the first duty, on making an arrest, was to search the prisoner for papers and keys. He was then told to name a representative to be present at the sequestration and inventory. If the hour suited, this followed at once, otherwise it was postponed to the next day, padlocks being meanwhile placed on everything, and one or two guards being stationed. The inventory was made in the minutest detail, room by room, specifying the contents of all desks, trunks, chests and other receptacles. The keys were then delivered to the depository selected, who receipted for the property and became responsible for it. Then followed immediately the _audiencia de hacienda_, in which the prisoner was made to give an account of all of his possessions. If among the effects seized were some of a nature requiring them to be sold, or if it was necessary to provide for the food of the prisoner, they were disposed of at auction, after appraisement made in the presence of his representative.[1453]

As the inventory was the basis of all further proceedings, from a very early period rigid instructions were issued that it should be complete to the minutest detail. Every paper found in the prisoner's possession was to be enumerated; in 1607 the Suprema complained of negligence in this respect and ordered that in future not only must every paper be set down but also its nature and contents.[1454] Such inventories as I have had an opportunity of examining show the laborious trifling entailed by these instructions. In the case, for instance, of Margarita Altamira, in 1681, the list covers four closely written pages, consisting of entries such as "an old pair of scissors," "a worn tow towel," "an old broom," "an old earthen pot," etc. She was the wife of an agricultural laborer, apparently separated from her husband and owning nothing save her little household plenishing and clothes.[1455] Official zeal sometimes outran discretion, gravely affecting the interests of others, as when, in 1597, the Suprema was obliged to issue instructions that, when heretic ship-masters were arrested in the sea-ports, only their own effects were to be seized and not the ships and cargoes.[1456] It was unavoidable that the property of third parties, in the hands of the accused, should be included in the sequestration and, as we have seen, from an early period the orders were that such goods should be surrendered as soon as owners should prove their rights. Such cases were of perpetual occurrence, causing much damage or inconvenience, and were attended with exasperating delays. The daughters of Brianda Royz, reconciled with confiscation, presented, March 19, 1530, a claim for some seventy articles of household furnishing, which were not adjudged to them until July 7, 1531. The list included a pair of chickens which had doubtless long before disappeared in the olla.[1457] The case of Margarita Altamira affords some quaint illustrations of the annoyances inflicted on those who chanced to have had dealings with the accused. She was arrested in November, 1681 and, on April 8, 1682, the priest Francisco Juan Sans presented a petition representing that, among the effects sequestrated, was a lot of shirts and undergarments of which he furnished a list--Margarita apparently having been his washer-woman. The paper was endorsed to be filed away and its proof to be received in proper time. The proper time was slow in coming for, in August, the good padre again petitioned for his shirts, but whether he eventually recovered them the documents fail to show. A year later, August 3, 1683, Margarita Batlle made application for a cradle which she said that she had lent to Altamira. The case was referred to the receiver who reported that there was in the sequestration an old cradle, which if sold might fetch two or three reales. Then, on August 25th, the inquisitors resolved that, as it was of so little value, it might be surrendered to her on her proving ownership under oath and, on October 6th, she was duly sworn and examined; she described the cradle, told from whom it was bought at the price of two reales, explained why she had lent it and why she had not reclaimed it prior to Altamira's arrest, whereupon it was ordered to be restored to her.[1458] Evidently there was no haste in relieving the necessities of those who were caught in the sweep of sequestration.

[Sidenote: _PROVISION FOR FAMILIES_]

It was very properly a cardinal principle, frequently reiterated, that sequestrated property was sacred and was not to be diverted, however great might be the necessity.[1459] It was easier, however, to enunciate such a self-denying ordinance than to observe it, in an institution practically secure from supervision. Ferdinand set the example by selling or granting as favors numerous houses in Perpignan, abandoned by fugitives before the Inquisition was in operation in Roussillon, and he had no scruple in assuming the condemnation of the owners before their prosecution had commenced.[1460] We have seen how, in 1644, the Suprema admitted to Philip IV that, to satisfy his exigencies, it had sold sequestrated property, for which the owners, who had been acquitted, were clamoring.[1461] In fact, the use of such property became habitual for, towards the end of the century, we find an official _depositario_ of the Suprema in charge of the sequestrations, who was accustomed to meet, from the funds in his hands, the expenses of the Madrid tribunal, subject of course to repayment. In one transaction of the kind, the advance made July 3, 1680, was not refunded until November 17, 1681.[1462] The tribunal was thus exposed to the risk that its decisions might be influenced by the condition of its account with the depositario.

At first there would seem to have been no provision for the family of a prisoner whose property was thus suddenly seized. They were cast adrift and deprived of subsistence, regardless of the fact that confiscation might not be decreed. In the early Instructions there is no arrangement for their support during the trial, and any exceptions to this were matters of favor, as when Ferdinand, July 11, 1486, wrote to the receiver of Saragossa that, as the lands and personalty of Juan Navarro had been sequestrated, as his children had no other support, and as one of them had rendered him good service, all the rents and profits of the estate should be paid to them during the pendency of the case.[1463] Common humanity demanded that some attention be paid to the necessities of the innocent and helpless, while confiscation was as yet uncertain, and in time this severity was relaxed, though it cannot be positively stated when this commenced. The earliest allusion to it, that I have met, occurs in the memorial of Llerena, in 1506, which, while denouncing the cruelty of turning the family into the streets at night, admits that some allowance was made to them from the sequestrations. It complains, however, that this was miserably insufficient and so irregularly paid that sometimes months elapsed without anything being received. In one case two little daughters of a rich prisoner perished of hunger, and their elder sisters subsisted by beggary at night. A woman thus left with ten souls dependent upon her was allowed twenty-five maravedís a day, when two hundred and fifty were requisite, and even of this pittance she had received nothing for three months.[1464]

The matter was one which called for regulation, and various experimental instructions were issued from time to time. Absolute arrangements were not easy to provide and, between 1538 and 1558, a number of utterances show the difficulty of reaching a satisfactory result. The general features of these are that the inquisitors are to consult with the receiver and notary of sequestrations and assign an allowance proportioned to the amount of the property and station of the recipients, while consideration is to be given to the ability of individuals to earn a living, provided it is not derogatory to their rank.[1465] A definite policy was finally reached in the Instructions of 1561, which remained the standard. These provide that, if the wife or children of a prisoner apply for support, he is to be consulted and, if he so wishes, an allowance out of the sequestration is to be made to them, proportioned to their station, but if there are some of an age to work they must provide for themselves. This was a matter of grace and not of right, for a subsequent regulation restricts the grant to a limited time because the trial may be prolonged and it may be advisable to discontinue the payments. In 1567 it was added that common clothes and bedding could be given, but every article must be specified, as the depositaries were apt to be too liberal unless restricted.[1466] It thus became a settled principle that the family of a prisoner was to be cared for out of the sequestration of its head, if he had property and, in the printed form of a warrant of arrest, in 1696, this is specified as the object of placing it in the hands of a depositary selected by the prisoner.[1467]

[Sidenote: _THE SECRESTADOR_]

While recognizing the humanity of these provisions it may be questioned how far they relieved the hardships of dependents, especially in the later period, when the dilatory methods of the Inquisition prolonged the trials inordinately. Unless an estate was unusually large, it was apt to be speedily consumed by wasteful methods and the accumulation of expenses. As we shall see hereafter, unless the accused was penniless, the cost of his maintenance in prison was a first lien on his sequestrated property and, if there was not ready money, his effects were auctioned off to supply it. The strictness of the rule to pay all expenses out of the sequestration is illustrated in the case of two children of Antonio Enríquez Barrios, confined with their father in the prison of the tribunal of Madrid. When they were discharged, 1423 reales, the cost of their clothing and food, were collected from the sequestrated estate of their father, whose trial was unfinished.[1468] It may be assumed, under such a system that, when the accused escaped without confiscation, only a remnant of his property was restored to him, especially as he had to accept on account from the depositario whatever the tribunal had ordered to be paid out of the sequestration and be content with the balance, while whatever he might owe for his prison maintenance had to be paid before an order was issued to lift the embargo. In this respect, a suspension of the case was equivalent to an acquittal and entitled him to resume possession of what remained of his property.[1469]

Of course nothing could compensate a man engaged in trade for thus locking up during years all his business concerns. To such a one, arrest with sequestration meant ruin, however clearly his innocence might be demonstrated after the prolonged proceedings of the tribunal. A curious inventory of a printing office thus seized shows the breaking up of a business and the destruction of the means of livelihood. One item is "a hundred and twenty reams of the third volume of Rodríguez, the book at present in hand," which is highly suggestive of the loss inflicted, without redress, on other parties concerned, as author or publisher, as also of the sacrifice incurred by peremptory auction sales of such material.[1470]

* * * * *

The office of secrestador or depositary would seem, in the earlier period, to have been regarded as desirable, and it certainly offered opportunities for the dishonest. That these were sometimes improved is apparent from the case, in 1510, of Fernando de Mesa, a _jurado_ of Córdova, who was secrestador of the estate of a certain Celamin. By the time the latter was condemned, Mesa had died and the sequestrated property was not forthcoming. He had placed four daughters as nuns in the convent of Santa Ines and their share of the defalcation was thirty thousand maravedís, but the convent pleaded inability to pay through poverty and Ferdinand kindly forgave it the debt.[1471]

To the honest, however, the office was in every way undesirable. It involved labor, anxiety and responsibility without payment but, when selected and approved, the appointee was obliged to serve, under penalty of excommunication and a fine of ten or twenty thousand maravedís. It was recommended that, if possible, he should not be a kinsman of the prisoner or a Converso, and he was always to be of good repute and standing.[1472] If the accused was a householder, the house was locked and the keys were given to the depositary; otherwise he was put to the expense of storage; he was obliged to sign a paper subjecting himself to the penalties imposed on him by the alguazil and pledging his person and property to make good any deficiencies occurring through error or negligence, for which he renounced his fuero and submitted himself wholly to the Inquisition.[1473] The perplexities and tribulations to which he was exposed are illustrated by those of Jaume Taxes, who served as depositario in the case of Margarita Altamira. He appealed, April 26, 1682, to the inquisitors, representing that, when the sequestration was made, he was given the key of the house, but he is now required to surrender it to the owner and to have the goods stored safely; he has no room for them in his own house and petitions to have them delivered to some one else. No attention was paid to this and, on May 14th, the owner of the house, a priest named Francisco Canudes, came forward with a complaint; on March 26th he had obtained an order for the key, but Taxes refuses to surrender it, wherefore he desires that he be forced to do so and to pay him six months' rent.[1474] The documents fail to inform us what was the solution of the complication which the tribunal had thus created, but the affair illustrates the manner in which the Inquisition was wont to call for gratuitous services and to pay little regard to the convenience or interest of those on whom it imposed onerous duties.

[Sidenote: _LIMITATIONS_]

There were some limitations on the power of sequestration. It was confined to property found in possession of the accused; whatever he owned that was in the hands of third parties could not be sequestrated and had to await sentence of confiscation before it could be seized.[1475] An application of this principle led to the somewhat remarkable rule that there could be no sequestration in prosecutions of the dead, however convincing the proofs of guilt, because the possessions of the offender had passed into the hands of third parties. As early as 1537 this was prescribed by the Suprema, in a letter to the tribunal of Barcelona, and it was embodied in the Instructions of 1561.[1476]

A more important limitation confined sequestration to arrest on charges of formal heresy, and the fiscal was required in his clamosa to specify whether or not he asked for it, though as late as 1575 the Suprema was obliged to notify the tribunal of Valencia that heresy was a prerequisite of sequestration.[1477] The definition of heresy, however, was somewhat elastic and when, in 1573, a determined effort was made to eradicate the general popular belief that fornication between the unmarried was not a mortal sin, it was ordered to be prosecuted as heresy with sequestration.[1478] When formal heresy was involved, sequestration was to be decreed, whether the accused had property or not and, in 1665, the Suprema rebuked the tribunal of Barcelona for omitting it in the case of a galley-slave.[1479]

The Inquisition at length grew restive under the limitation of sequestration to formal heresy, for, as heretics grew fewer, it exempted a vast proportion of the cases which formed the current business of the tribunals, consisting of blasphemy, sorcery, bigamy, solicitation, marriage of clerics, propositions scandalous, audacious or ill-sounding, the possession of prohibited books, and, in fact, as we are told, all offences which did not in law import confiscation.[1480] In these cases the warrant of arrest, during the sixteenth century, instructed the alguazil to arrange so that the prisoner could leave his property in the hands of any one whom he should select, to be used for the maintenance of himself and his family, and an inventory was to be made to prevent misappropriation.[1481] In time the Inquisition outgrew this consideration for the innocent sufferers, which reduced it to sharing with them in the use of what was apt to disappear in the course of the protracted trials. To remedy this and without, so far as appears, any warrant of law, the expedient was devised of substituting for the word sequestration the euphemistic term of embargo, and ordering the property of all prisoners not liable to confiscation to be embargoed. The words had the same meaning and, in the earlier time, were used as identical, often copulatively as "embargo y secresto"--a mere pleonasm of legal phraseology, the context showing that sequestration was meant.[1482] The slight shade of difference was that in embargo the prisoner selected the depositary who was to hold the property and pay from it the expenses of his maintenance in prison during his trial.[1483] Thus sequestration, under the flimsy veil of calling it embargo, became a matter of course in all arrests and the fiscal was instructed, when the calificacion was of formal heresy, to ask for sequestration, in other cases for embargo and, when frailes were the culprits, for embargo of their peculium and papers. So universal was this that, in 1665, the Suprema required the Barcelona tribunal to furnish reasons for not embargoing the property in any case of arrest for minor offences.[1484] So it continued to the end. In 1815 we find numerous cases of embargo in arrests on charges of bigamy, solicitation, irreverence, propositions and the like, while the Dominican Fray Tomas García, for celebrating mass without priests' orders, had his peculium embargoed.[1485]

[Sidenote: _ILLUSTRATIVE CASE_]

In this illegal extension of sequestration there is something peculiarly heartless. When the offence charged inferred confiscation, there was some excuse for making sure that the property would not be secreted or dissipated, but in minor cases to subject the offender and his family to the hardship, and perhaps ruin, caused by seizing his property and holding it during the leisurely progress of his trial, merely in order to secure to the tribunal the reimbursement of his maintenance in prison, shows how thoroughly hardened the Holy Office had become to human suffering and how its selfish greed stifled all the promptings of humanity.

* * * * *

A practical illustration of the process of arrest and sequestration is furnished by the case of Ana de Torres, a woman of twenty-two, recently married to Gaspar Agustin, a confectioner of Ciudad Real. Testimony of Judaism had been gathered against her and, on May 9, 1680, the Toledo tribunal ordered its familiar, Don Alvaro Muñoz de Figueroa, a Knight of Santiago, to arrest her, sequestrate her property and send her to Toledo with bed and clothing and 100 ducats. On May 17th Muñoz reported that, after ascertaining her address, he had gone to her house at nine o'clock that night, with a notary, familiar and servants, had carried her off to his own, turning out the husband and placing two guards, so that the sequestration could be made the next day. From what he could see, all the contents of the house was not worth 100 ducats and he was told that they belonged to the husband, for she had come to Ciudad Real in September with nothing but her person. Moreover she was five or six months gone with child. He asked for instructions, which were given in apparent disregard of the husband's rights, for he was told to make the sequestration and send her with her bed and clothes and whatever he could get for her things. On May 24th he reported that he had started her on her journey with 400 reales (about 36 ducats) which was all that he had realized on the sale of the effects. Successive relays of familiars carried her gratuitously and the next day the receiver of Toledo acknowledged the receipt of the 400 reales to pay for her food. Then, on July 6th, the alcaide reported that she was suffering from an inflammation of the throat which, in her condition, threatened serious complications. The _medico_ was called in, who prescribed bleeding and gargles and removal from the confined air of the prison. She was taken to the house of the alcaide, where she was duly bled and, on July 18th, was sufficiently recovered to ask for an audience. In due time, on September 13th, the alcaide reported her confinement and that he had provided a midwife, when he was ordered to take care that she had everything necessary for her recovery and comfort. On September 29th the child was baptized and the mother brought back to the prison, when she was placed in a cell with two other women and, in October, orders were drawn for 146 reales to pay for the clothes and swaddling-bands of the infant and for 14 reales to the chapel of the cathedral for its baptism.[1486]

The redeeming features of these latter details afford a welcome relief to the sordid eagerness of the Inquisition in grasping everything within its reach in order to escape the costs of persecution, regardless of the misery which it inflicted. In the present case we learn nothing as to the husband, presumably innocent, thus turned out of his house and stripped of his furniture. This was no concern of the Holy Office.