CHAPTER V.

EVIDENCE.

In criminal procedure, the character of admissible evidence and the methods employed to test its veracity are of such determining importance that an investigation of the system followed by the Inquisition is necessary if we are to estimate correctly its administration of justice. In this, the fact must be borne in mind that the complicated rules of evidence, peculiar to English law, have grown out of trial by jury, where those who have to pass upon the facts are presumably untrained to estimate testimony, so that it has to be carefully sifted before it is allowed to reach them, while that which is admitted is subjected to the searching process of cross-examination. All this had no place in the systems which Continental Europe inherited from the civil law. The judge was assumed to be a trained jurist, equipped to distinguish truth from falsehood, so that the flimsiest evidence might be brought before him, secure that its worthlessness would not affect his judgement, while it might afford some clue leading to the truth. The defects of this were greatly exaggerated in the Inquisition, where unlimited discretion was allowed to judges, who were mostly theologians eager to prove and to punish the slightest aberration from the faith, and where the secrecy preserved as to the names and identity of the accusing witnesses precluded all thought of cross-examination, although the story of Susannah and the Elders might well have conveyed a warning as to the danger of unjust judgement by an unassisted bench.

In the ancient Castilian law, both parties to an action saw the witnesses sworn, but the judges examined them in secret, apparently as a precaution against their being tampered with. Great care was taken as to their character, and those were excluded who were of ill-repute or had been imprisoned, or perjured, or were Jews, Moors, heretics, apostates, or who were interested in the case, or dependents on one of the parties, or were less than fourteen years of age, or very poor, unless proved to be of good fame, while, in criminal cases, no witness was received who was under twenty and no member of a religious Order.[1592] In Aragon, the utmost care was prescribed as to the character of witnesses; if not personally known to the judge, the fact was to be entered upon the record and the judge was required to cross-examine them personally as to all minute details that might lead to the exposure of fraudulent testimony.[1593] Under the civil law, parents and children were not admitted to testify against each other nor could a freedman be a witness against his patron.[1594]

[Sidenote: _WITNESSES FOR PROSECUTION_]

All these precautions which the experience of ages had shown to be necessary as guards against injustice under systems of procedure where the judge was also in some sort a prosecutor, were cast aside by the Inquisition in its zeal to preserve the purity of the faith. The grossest partiality was shown in the distinction drawn as to eligibility between witnesses for the prosecution and those for the defence. For the former there was no disability save mortal enmity towards the accused. From the earliest times the Church had prescribed fourteen as the minimum age for witnesses[1595] and, in Spain, where majority was not attained until the age of twenty-five, minors younger than that were not admitted in criminal cases. Accordingly, in the records of the Inquisition, witnesses are customarily described as _mayores_ or _menores_, but no difference was made in accepting their testimony, and Rojas tells us that formerly he thought that heresy could not be proved by two witnesses under twenty-five, but the rule is that the fiscal is not bound to prove that his witnesses are legal; everyone is presumed to be so and his evidence must be received until objection is made, which, considering that their identity was most carefully concealed from the defence, is tantamount to saying that none could be rejected on that score.[1596] Witnesses of the tenderest years were therefore admitted without scruple. In the case of Juan Vazquez, tried in Toledo for sorcery in 1605, one of the witnesses was a girl of twelve. In the same tribunal, in 1579, a witness only eleven or twelve was heard against Francisco del Espinar, for maltreating a cross, and the culprit, who was only thirteen, was held to be responsible.[1597] Witnesses under twelve were not sworn, because they were deemed incapable of understanding the nature of the oath, but their evidence was received and recorded without it, as appears in the report of a Valencia auto de fe in 1607.[1598] In the Roman Inquisition the canon law was treated with more respect, and the fiscal was not allowed to present a witness below the age of fourteen.[1599]

There would seem to have been at first some discussion as to the admissibility of the evidence of slaves against their masters, but it was settled, in 1509, by a provision of the Suprema, declaring it to be legal but as, in cases of heresy, they were working for their liberty in convicting their masters, their testimony should be carefully scrutinized and, if it appeared doubtful, it should be validated by torturing them.[1600] There was also a question as to Jews, for laws of the Fuero Juzgo (Lib. XII, Tit. ii, n. 9, 10) forbade them from testifying against Christians, but they were received in the Old Inquisition and the New was not more rigid.[1601] As regards kindred, Simancas tells us that, although not allowed to testify for the prosecution in other crimes, in heresy they are the best witnesses, as being beyond suspicion of enmity and they must be compelled to give evidence because religion is to be preferred to kinship.[1602] In fact, a large portion of evidence was derived from them, for no confession was accepted as complete that did not include denunciation of accomplices, and those who confessed to save their lives were perforce obliged to betray their families. The agonizing struggle, thus induced between natural affection and self-preservation, is illustrated in the case of María López, in 1646, at Valladolid. For nearly four months she resolutely denied everything, but her endurance was at last exhausted and, on April 25th and 27th, she confessed as to herself and others and ratified it on May 7th. In her cell she brooded over this until June 25th, when the alcaide reported that she had attempted to strangle herself with a strip of her chemise. The inquisitor hastened to her cell and found the poor creature hiding under the bed. Interrogated as to her motives, she said that a woman who had falsely accused her husband and only daughter, as also her mother and an aunt, did not deserve to live, whereupon she revoked her whole confession, both as to herself and others. As a _revocante_, the pitiless rules of the Inquisition doomed her to the stake; her fears triumphed and, on July 28th, she confirmed her confession of April, except as regards her husband. On November 29th she was condemned to reconciliation, confiscation and prison with the sanbenito, and she appeared in the auto of June 23, 1647.[1603] The Roman Inquisition was somewhat less inhuman and did not require husband and wife to testify against each other.[1604]

It naturally followed from all this that, in the Spanish Inquisition, the rule was observed that, where heresy was concerned, all witnesses were admissible, no matter how infamous. Excommunicates were not rejected and it would appear that even the insane were regarded as competent for, in 1680, Thomas Castellanos, on trial in Toledo, confessed to being a Lutheran, an atheist and to other heresies, for which he was charitably sent, not to the stake, but to an asylum, yet he was received as a witness against Angela Pérez, as to her utterances to him while in prison. He was duly sworn by God and on the holy cross although, if sane and an atheist, there could be no force in such an oath.[1605] In short, the only incapacity of an accusing witness, was mortal enmity. All other exceptions known to the secular law--minority, heresy, perjury, infamy, complicity, conviction for crime--were disregarded, although they might affect his credibility. Mortal enmity was difficult of definition, but the doctors were liberal enough in admitting to the benefit of the term any quarrel of a serious character, but proof was rendered difficult by refusing to receive evidence concerning it from any one within four degrees of kinship or affinity with the accused.[1606]

[Sidenote: _WITNESSES FOR DEFENCE_]

It is true that some precautions were prescribed to guard against the admission of worthless testimony, but their very enunciation proves how unscrupulous was the current practice.

In 1516, the Suprema cautioned the tribunals that, when the veracity of a witness was doubtful, his testimony must be verified and, in 1543, it was ordered that the character of witnesses must be recorded so as to serve as a gauge of the weight of their utterances.[1607] There was also the formality used with all witnesses in commencing their examination by interrogating them on what were called the _generales de la ley_, as to their knowledge of the parties to the case and any enmity or other matter that might prejudice their testimony, the answers to which were always of course satisfactory. In the long run, however, all this, like most other matters, was left to the discretion of the tribunals which, in practice, admitted every body and used their evidence without discrimination.

This applies solely to the witnesses for the prosecution. When we turn to the defence, the contrast between the scandalous laxity of the rules prescribed for the former, and the equally scandalous rigidity of those applied to the latter, is the clearest proof that the object of the Inquisition was not justice but punishment. Throughout the whole judicial system the vital principle was that it were better that a hundred innocent should suffer than that a single guilty one should escape. Even the formula of the oaths administered to the two classes, in 1484, shows how early the distinction was drawn between them. The witnesses for the prosecution only received a solemn warning from the inquisitor, while those for the defence were sworn under the most terrible adjurations to God to visit, on their bodies in this world and on their souls in the next, any deviation from the truth.[1608]

The rules as to witnesses admissible for the defence were carefully drawn so as to exclude all who were likely to be serviceable to him, on the ground that their evidence would be untrustworthy, the inquisitor thus being sedulously guarded against misleading in favor of the prisoner, while he was trusted to discriminate as to the adverse testimony. Thus no kinsman to the fourth degree was allowed to testify for the defence, even when the accused was blindly striving to prove enmity on the part of those whom he conjectured to be the opposing witnesses. No Jew or Morisco or New Christian could appear for him, although they were welcomed for the prosecution, and the same distinction applied to servants. As formulated in the Instructions of 1561, the accused was told that he must not name as his witnesses kinsmen or servants, and that they must all be Old Christians, unless his interrogatories be such as cannot otherwise be answered, and Pablo García adds that, under such circumstances, he must name a number from among whom the inquisitor may select those whom he deems most fit. It became, indeed, a commonplace among the authorities that witnesses for the defence must be zealots for the faith--_zelatores fidei_.[1609] Yet, in fact, all this is of interest rather as a manifestation of the pervading spirit of the Inquisition than from any practical influence which it exercised on the outcome of the trials for, as we shall see, the simulacrum of defence permitted to the accused was so limited that in but very few cases did it matter whether he had or had not any witnesses.

* * * * *

Prosecutions of course were not to be impeded by reluctant or recalcitrant witnesses. The tribunals had full power to summon them and to punish them for refusal. When they resided at a distance, it was discretional either to have them examined by a commissioner, appointed _ad hoc_, or to make them appear in person. In 1524 Cardinal Manrique even decided that they could be brought from Aragon to Castile although, as we have seen, this violated the fueros of Aragon, which forbade that any one should be forced to leave the kingdom.[1610] The official summons requires the witness to present himself before the tribunal, within a specified number of days, under pain of ten thousand maravedís and excommunication _latæ sententiæ_, this censure being pronounced in advance with notice that, in case of disobedience, it would be published and he would be proceeded against according to law. The summons was to be served with the utmost secrecy and, like all other documents, was to be returned to the tribunal with an endorsement of the date of service.[1611]

[Sidenote: _EXAMINATION OF WITNESSES_]

Witnesses were compelled to give evidence and were liable to punishment if suspected of withholding it. In Doctor Zurita's report of his visitation of Gerona and Elne, in 1564, it appears that he arrested Maestre Juan Fregola, canon of San Martin of Gerona, because he said that he did not remember a matter at issue; his memory was thus refreshed and he was released on giving the desired evidence.[1612] This continued to the end. In 1816, the Suprema, in confirming the vote of the tribunal of Cuenca to continue the case of Antonio Garcés, adds that it must take the necessary steps against the witnesses who refuse to testify.[1613]

* * * * *

The examination of witnesses for the prosecution was a duty of the inquisitors. It was one, however, that they threw upon the notaries, who were ordered by the Suprema, in 1498, not to take testimony except in presence of the inquisitors, while Cardinal Adrian, in 1522, said that, if the latter were too busy to be present, they must at least read the testimony before the departure of the witness and make the necessary re-examination.[1614] All this argues a very loose and slovenly system, in a matter of such primary importance, inherited doubtless from the early time, when the rush of prosecutions precluded all but the most superficial conduct of business. In that period there had been devices for the division of labor, for we hear of an official, in 1485, known as the receiver of witnesses, and of payments made to clerics whose presence was essential in the taking of testimony--devices which were abandoned about the close of the century.[1615] As business declined, the inquisitors seem to have taken a more active part in the examination of accusing witnesses, except towards the end, when indolence led them to issue commissions to conduct interrogations.

It was the rule that all examinations should take place in the audience-chamber, except in extreme urgency, when the inquisitors might hold them in their apartments or houses--a rule of which the Suprema had to remind them, in 1538, and again in 1580.[1616] Witnesses were sometimes sworn in groups, but were examined separately as a prudent precaution against collusion.[1617] When the _estilo_ had been perfected, there was a prescribed form for commencing the interrogatory, by first asking the witness whether he knew or presumed the cause of his summons; this was usually answered in the negative, when the next question was whether he knew or had heard that any person had said or done anything which was or appeared to be contrary to the faith, or to the free exercise of the Inquisition. This had the appearance of careful abstention from guiding him but, if he persisted in the negative, the interrogatory rapidly assumed the aspect of letting him know for what he was wanted and what was expected of him. Thus in the trial at Barcelona, in 1698, of a woman named Ignacia, for sorcery, Jaime Guardiola asserted that he knew little except that he had forbidden her his house, when Inquisitor Valladares told him that the Inquisition had information of his having employed her on several occasions which he described, wherefore he adjured him, in the name of God and his Blessed Mother, to examine his memory and tell the truth.[1618] Sometimes the inquisitor went further and openly threatened a witness, warning him, by the reverence due to God, to tell the truth and not to make the prisoner's case his own.[1619] The Suprema might well restrain the excessive zeal of its subordinates by instructing them not to intimidate witnesses or to treat them as if they were the accused parties.[1620]

[Sidenote: _EXAMINATION OF WITNESSES_]

While thus with unwilling witnesses the inquisitor acted as counsel for the prosecution, with those who were willing he made no attempt to ascertain the truth of their stories. He asked leading questions without reserve and abstained from any cross-examination that might confuse the story and expose mendacity. When, in the trial of Juan de la Caballería, at Saragossa, in 1489, his procurator asked that certain interrogatories which he presented should be put to the witnesses, the inquisitors roughly refused, saying that it was their official duty to find out the truth for the discharge of their consciences.[1621] So long as witnesses incriminated the accused, as a rule there was no effort to test their accuracy or to obtain details of place and time or other points which would facilitate defence against false charges. In the case of Simon Nocheau, at Valladolid, in 1642, he succeeded in getting a series of interrogatories put to the witnesses which exposed discrepancies that it was the duty of the inquisitors to have discovered.[1622] Even the Suprema recognized the injustice of this, in the case of a priest whom the tribunal of Barcelona, in 1665, sentenced to imprisonment for "propositions," and ordered it to recall the witnesses and cross-examine them so as to verify their testimony and also to investigate whether they were actuated by enmity.[1623]

To estimate the conscious unfairness of this it is only necessary to contrast it with the treatment of evidence presented by the defence. The handling of this was likewise wholly with the inquisitor. All that was allowed to the accused was to offer a list of witnesses and a series of interrogatories to be put to them. It was the duty of the inquisitor to summon the witnesses and put the questions, or to forward the interrogatories to commissioners for the same purpose, but he had full discretional power to omit what he pleased, both as to witnesses and questions. In fact, he received the interrogatories only _salvo jure impertinentium et non admittendorum_, and he exercised this power without supervision and without informing the accused or his advocate as to what he threw out. In 1572, Luis de Leon on his trial presented six series of interrogatories to be put to his witnesses of which three were calmly thrown out as "impertinent."[1624] Not only was all knowledge of this concealed from the accused but also the answers of the witnesses to such questions as were permitted. It is true that, in 1531, even the Suprema revolted at this and ordered the evidence in favor of the accused to be submitted to him and to his advocate, so that it might not be said that he was deprived of defence, but injustice prevailed and the Instructions of 1561, in prescribing the suppression to the accused, gave as a reason for it that the accused might thus be prevented from identifying the adverse witnesses--thus showing how one denial of justice led to another.[1625] The witnesses for the defence were further subject to cross-examination which, at least in the earlier period, could be conducted by the fiscal--an indecency almost incredible in view of the crippling restrictions placed on the defence.[1626] In fact the distinction recognized in the treatment of evidence for the prosecution and for the defence is epitomized in the instructions sent by Toledo, in 1550, to its commissioner at Daimiel, about taking testimony in the cases of some Moriscos of that place. He is not told to investigate the credibility of the mass of idle gossip and hearsay evidence gathered for the prosecution but, when examining witnesses for the defence, he is to cross-examine them strictly to ascertain what are the grounds for their assertions.[1627]

* * * * *

There was one formality, not peculiar to the Spanish Inquisition, designed to protect the accused from random or false accusations--the ratification which was required of witnesses after an interval had elapsed since their original depositions. This was occasionally of service and, if preserved in its original form, would have been a considerable safeguard in detecting perjury. It was conducted in presence of two frailes, known as _honestas personas_, and the fiscal was not allowed to be present, a prohibition which Manrique was obliged to repeat in 1529.[1628] In the earliest period, ratification was frequently omitted, doubtless owing to the haste with which the Inquisition worked,[1629] but subsequently it was regarded as absolutely essential. Its importance was shown by making it an imperative duty of the inquisitor himself to take the ratification, either summoning the witnesses or going to them, but this was difficult of enforcement. Cardinal Adrian, in 1517, declared that ratification before a commissioner nullified the whole proceedings, yet orders were required in 1527 and again in 1532 to make inquisitors perform the duty, and finally the attempt was abandoned and commissioners were everywhere employed.[1630]

[Sidenote: _RATIFICATION_]

As a rule, no evidence could be used that was not ratified, and I have met with not a few cases--one as late as 1628--which were suspended and the accused were discharged because the witnesses were not to be found when wanted for that purpose.[1631] This arose from the fact that in strictness ratification was not to be made till immediately before the so-called "publication of evidence" which was the concluding step of the prosecution, involving a considerable interval during which the witnesses might die or disappear.[1632] To avert this, relaxations of the requirement of ratification were gradually introduced. In 1533, 1543 and 1554 the Suprema inferentially admitted that when witnesses were absent or dead their testimony could be used if the fact was noted on the record.[1633] There were authorities who held this to be the case in Aragon and it was so practised, but elsewhere opinions varied.[1634]

Finally a successful device was invented of two forms of ratification, one "_ad perpetuam rei memoriam_" and the other "_en juicio plenario_." They were virtually the same except that in the former the witness was told that the fiscal would use his evidence in a prosecution to be brought hereafter, and in the latter that it was for a case on trial. It became customary always to obtain the ratification when the testimony was given and then, if a witness was accessible during the trial, the ratification _en juicio plenario_ was superadded. At what time this expedient was adopted it would be difficult to say, but it was probably about the middle of the seventeenth century; the earliest use of it that I have met occurs in 1650, in Mexico, where it seems already to be customary.[1635]

While this ostensibly retained for the accused the protection of ratification, it destroyed whatever value there was in a prolonged interval between the original deposition and its confirmation. At first a delay of four days was ordered for the form _ad perpetuam_, which seems to have been considered sufficient to excite the conscientious scruples of a possible perjurer.[1636] Even this was subject to the exigencies of the prosecution. An elaborate series of instructions to commissioners, about 1770, informs them that there should be four days' interval if possible, but if a witness is dying or about to absent himself, ratification may be immediate.[1637] In a case in 1758 ratification is ordered to be taken after waiting three hours; in others, in 1781 and 1795, after twenty-four hours; in another, in 1783, it is recorded that twenty-eight hours were allowed to elapse, all of which shows how purely formal was the whole business.[1638]

[Sidenote: _RATIFICATION_]

In truth it was the baldest formality, for the process habitually followed deprived ratification of whatever value it might have had originally. In place of testing the memory and veracity of the witness by making him repeat his testimony, it was merely read over to him. In 1519 and again in 1546, the Suprema sought to set some limit to this abuse by ordering that, after preliminary inquiries, the witness should be made substantially to repeat his testimony and, only after this, was the record to be read to him, but even this was soon afterwards abandoned and the Instructions of 1561 merely provide that the witness is to be told to repeat his testimony; if his memory fails, questions are to be put leading him to recall it and, if he asks to have the record read, it is to be read to him. Of course the witness always availed himself of the privilege and Pablo García says nothing about his repeating his evidence and directs the reading of the record as a matter of course.[1639] So perfectly was the whole business a matter of routine that tribunals kept printed blanks, to be filled in with names and dates, of the customary attestation that the witness declared it to be his testimony, that it was properly set forth, that he had no change to make in it, for it was the truth which he ratified and if necessary he repeated it, not through hatred but for the discharge of his conscience.[1640] In fact, although the witness was free to make what additions, alterations or omissions that he pleased, it was dangerous for him to diminish the record substantially, for any revocation exposed him to punishment for false-witness and both depositions were duly set forth in the publication.[1641]

Bishop Simancas tells us that, when there was suspicion of perjury, it was customary to examine the witness again, but that this was not done in other cases, so as not to lead him to commit perjury[1642]--a tenderness to the witness which had better have been displayed to his victim; but Simancas wrote before the Instructions of 1561 were issued and Rojas, whose work was subsequent, is very free-spoken in his denunciation of the customary practice. Some doctors, he says, argue that ratification supplies the place of letting the accused know the names of the witnesses, but this is a hallucination, for experience shows that this ceremony, with its two religious persons, is of no value, for it is a trait of humanity to persist in an assertion, whether true or false, especially where there is risk of perjury, and he urges that the witness should not be allowed to see his testimony, but should be examined anew and the two statements be compared so that, from their variations, his credibility could be determined and lying witnesses be detected.[1643] Few inquisitors could be expected to perform this conscientious duty, but one who wrote about 1640 indicates how fruitful it might prove. He tells us that, in suspicious cases, he had found the advantage of this plan and had brought to light perjuries which could have been proved in no other way; when witnesses betrayed their falsity by varying in important details, he confined them in solitary cells, where conscience did its work, and they confessed their frauds. He had also seen many ancient processes in which commissioners and notaries were convicted, deprived of office and punished in public autos de fe, which suggests unpleasantly how little reliance was to be placed on the officials who took down evidence.[1644]

Before the invention of the formula _ad perpetuam_, there was a hardship inflicted by ratification, in the excessive delays which it frequently caused. Thus Francisco Alonso, a Portuguese of Zamora, accused of bigamy, was thrown into the secret prison of Valladolid, July 10, 1627. As the alleged marriages had taken place in Coimbra, the evidence of their celebration had to be obtained from there, and it was a year before he had his first audience. When the time came for ratification, the depositions were sent for that purpose to Coimbra, September 28, 1628 but, in spite of repeated urgency, they were not received back until December 18, 1629. Then the case dragged on until the poor wretch died, June 10, 1630, after three years of incarceration, when it was perforce suspended.[1645]

* * * * *

[Sidenote: _SUPPRESSION OF WITNESSES' NAMES_]

Of all the devices for encouraging informers and crippling the defence of the accused, the most effective was the suppression of the names of the witnesses for the prosecution. This infamy was an inheritance from the Old Inquisition. In 1298, under the pretext that those who gave evidence in cases of heresy were liable to vengeance from other heretics, Boniface VIII provided that, where such danger was threatened, inquisitors were at liberty to conceal the names of the witnesses, but he expressly ordered that, in the absence of such danger, the names were to be published as in other tribunals. That he construed this literally is evident, for, when the Jews of Rome complained that in their case the names were habitually concealed, he decided that, as they were few and powerless, there was no danger and the names must be revealed.[1646] Permission to commit injustice is apt practically to assume the aspect of a counsel and then of a command and, in spite of Boniface's reservation, concealment became the universal practice of the Inquisition. So it was in Spain. At first it was a discretionary power for the inquisitor to use in exceptional cases, as when the inquisitor of Ciudad Real, in the trials of Sancho de Ciudad and his wife, ordered, January 7, 1484, that the witnesses' names be suppressed, it was an exception which he explained by the fact that Sancho was regidor of the city, with powerful friends, and that the witnesses had been threatened.[1647] Similarly, in the Instructions of November, 1484, the suppression of witnesses' names was permissive, not mandatory. Allusion was made to the danger of testifying against heretics; it was asserted that some witnesses had been murdered or wounded for that cause, wherefore inquisitors could suppress their names and all circumstances that would lead to their identification.[1648] All that was needed was permission, and suppression speedily became the rule.

Of course there was occasional danger and of course there were efforts, by threats or otherwise, to deter informers and witnesses, but this is common in all criminal justice, though there was no thought of applying concealment to the secular courts. It was a privilege exclusively in favor of the faith. Considering the provocation and the number of the victims, attacks on witnesses would appear to be singularly few and wholly inadequate to justify their protection by such means, although the Inquisition never ceased to proclaim it as an ever-present danger. In August, 1500, Ferdinand and Isabella asked of Manoel of Portugal the extradition of Juan de Zafra and his son-in-law for seeking to kill Juan López of Badajoz, who had testified against Zafra and, not finding him, had beaten to death his pregnant wife and stabbed his young son and had escaped to Portugal. They were surrendered, but there seem to have been no precedents for their prosecution and, in January, 1501, we find Ferdinand writing to the tribunal of Seville to hold a consultation as to the procedure in the case. Again, in January 1502, when a witness in Calatayud was threatened, Ferdinand ordered the inquisitor, if the report was true, to take such action as comported with the honor of the Holy Office and the protection of witnesses.[1649] Evidently cases had been so rare that no method of dealing with them had been formulated. Still, apprehension was lively and when, in 1507, at Llerena, some Conversos living near the Inquisition were suspected of watching to see what witnesses went there, Ferdinand empowered the inquisitors to remove six of them summarily and replace them with persons beyond suspicion.[1650]

The suppression of the names of witnesses was necessarily felt as an extreme hardship by the Conversos, not only as impeding defence but as stimulating false accusations, which there was no opportunity of disproving. The Jaen memorial of 1506 does not hesitate to accuse the officials of the tribunal of thus piling up fictitious charges, and Lucero's career at Córdova shows how successfully this could be done when witnesses need not be either named or produced. That efforts should be made to purchase relief was natural. When, in 1512, Ferdinand was lacking in funds for the conquest of Navarre, an offer of 600,000 ducats was made to him, if he would remove the seal of secrecy from the names of informers and witnesses, but we are told that he preferred his God and his faith and the preservation of religion. Soon after his death an attempt was made to tempt the young Charles V with a bribe of 800,000 crowns. His greedy advisers favored the petition, but Ximenes interposed with a strong remonstrance, reciting Ferdinand's refusal and predicting the ruin of the Holy Office. Recently he added at Talavera la Reina, a Judaizing Converso, punished by it, obtained knowledge of the informer, lay in wait for him and slew him, and such is the infamy inflicted by the Inquisition and such the hatred engendered by it that, if the names of the witnesses were published, they would be slain, not only in solitudes but in the streets and even in the churches; no one would be able to denounce heretics, save at the peril of his life, so that the Inquisition would be ruined and God would have no defender. Charles was convinced and the dazzling bribe was rejected.[1651]

[Sidenote: _SUPPRESSION OF WITNESSES' NAMES_]

Thus the policy of the Inquisition was settled, and so completely was it embodied in the _estilo_ that it was frequently enforced in cases where its ostensible reason was inapplicable. When Juan Franco was burnt for Protestantism at Toledo, in 1570, the only witness against him was another Frenchman, Jean de Provins, who had confessed to being a Protestant dogmatizer and as such was undoubtedly burnt. His only evidence had been some idle talk between them, eight years previously; he was eminently safe from vengeance and yet his name was carefully suppressed in the publication of evidence.[1652] For all this, when the rule was applied to the inquisitors, as it was in the visitations, when the inspector was interrogating the officials about each other, they fully recognized its injustice. Thus, in 1574, during an inspection of the Canary tribunal, when the inquisitor Ortiz de Funes was inculpated, he complained bitterly that it rendered it impossible for him to verify or invalidate the testimony of the witnesses--a scruple which he had never felt when administrating justice in this fashion.[1653]

The fiction was persistently maintained that the usefulness of the Inquisition depended wholly on the suppression of the names of witnesses. In the struggle over the evocation to Rome of the case of Villanueva, the main argument, repeatedly advanced by the Suprema, was that if appeals to Rome were permitted they would destroy its efficiency in the suppression of heresy, for no one would denounce heretics or testify against them, if there was risk that their names would become known in Rome by the papers being carried thither.[1654]

The idleness of this talk is indicated by the rarity of cases of injury or threats to witnesses and the moderation with which they were customarily punished. The most serious case that I have met was that which followed the condemnation to lifelong reclusion in a monastery of Luis Pallas, Lord of Cortes, by the tribunal of Valencia, in 1571, for protecting his Morisco vassals from the Inquisition. Suspicion of having informed on him fell upon Francisco González and the Pallas family ordered his murder, for which, in 1577, four of the Pallas retainers were relaxed to the captain-general for execution. So unusual was the case that the latter had scruples as to his duty, which Philip II told him were superfluous and had unnecessarily delayed the punishment.[1655] Like any other murder, this involved the death-penalty, but as a rule offences of minor degree were leniently treated. In 1631, Francisca Muñoz of Segovia wounded Juan Martínez in the face, after asking why he had put her mother-in-law in the Inquisition, for which she was only reprimanded in the audience-chamber and banished for two years from Segovia.[1656] In various other cases of threatening witnesses, the severest punishment I have met is a hundred lashes, coupled with more or less exile and this, considering the liberality with which scourging was administered, implies that the offence was not regarded as requiring severe repression.[1657] Although thus the penalties were not greatly deterrent, the cases would appear to be singularly few. In the Toledo record, from 1648 to 1794, the only one occurred in 1650, when Pedro de Vega, alcalde of Mombeltran, after trial for a proposition without conviction, had threatened and insulted the witnesses; for this he was prosecuted and escaped with a severe reprimand and warning.[1658]

[Sidenote: _CONFRONTATION_]

To appreciate fully the hardship which the suppression of witnesses' names inflicted on the accused, it must be borne in mind that his only opportunity of knowing what was the evidence against him was in the so-called publication. This will be considered more in detail hereafter, and it suffices here to point out how the effort to mislead the prisoner as to the identity of his accusers led to the garbling of the evidence in a manner necessarily adding impediments to the exceedingly limited opportunities allowed him for defence. Yet we occasionally meet with cases which suggest that inquisitors were less solicitous about the safety of their witnesses than to create the belief in safety that would encourage denunciation. Thus, in the trial of Hans of Antwerp in Toledo for Lutheranism, in 1561, there was no scruple in setting forth the evidence in such wise that he could not fail to identify the witness.[1659] This could scarce be avoided in the very fruitful source of evidence volunteered by cell-companions. Thus in the Toledo case of Pedro Flamenco, in 1570, the testimony of two fellow-prisoners as to his talk and conduct in prison is so set forth as to render their identification inevitable and, as it included their opinions that he was a scoundrel and villain, there must have been lively times in that cell on his return from his audience.[1660] In cases of solicitation, the attempt to prevent identification was futile, for the confessor could not fail, from the incidents freely detailed, to recognize the women whom he had seduced or attempted to seduce.

In secular procedure there was occasional recourse to "confrontation"--bringing the accused face to face with the accuser or the witnesses and letting them debate the questions that had puzzled the judges, but it was regarded as a doubtful expedient, to be resorted to only when all else had failed.[1661] In 1491, in the case of the Santo Niño de la Guardia, where the accused were witnesses against each other and their confessions under torture were irreconcilable, confrontation was tried with dubious success.[1662] This indicates that under supreme pressure the veil of secrecy might be withdrawn, and probably the example was occasionally followed, for Valdés, in the Instructions of 1561, felt it necessary to say that, although confrontation was practised in other jurisdictions, it was not customary in the Inquisition for, besides the violation of secrecy, experience had shown that when tried it was disadvantageous.[1663] This did not wholly put an end to it for, in 1568, the Suprema sharply rebuked the tribunal of Barcelona for various irregularities, among which was the frequent recourse to confrontation.[1664] The latest allusion to the practice that I have met with in Spain occurs in the Valladolid case, in 1620, of the priest Juan de Gabana and his accomplice Gerónima González, when the consulta de fe proposed to confront them, but referred the matter to the Suprema. Its decision would doubtless have been in the negative, but was never rendered as Gabana died before it replied.[1665] In the Roman Inquisition confrontation was sparingly admitted, and only when both parties were of low estate--never between those of higher station or of different classes.[1666]

While sedulous care was taken to prevent the accused from identifying the witnesses, it often was necessary for the witnesses to identify the accused, to prevent mistakes liable to occur in the arbitrary methods of the Inquisition. This was so managed as to accomplish both objects. The somewhat crude plan adopted, in 1528, in the trial at Toledo of Diego de Uceda, was to conceal the witnesses in the torture chamber, while he was walked up and down for a quarter of an hour, until they fully identified him.[1667] Subsequently it was found expedient to furnish the audience-chamber with a _celosia_--a jalousy or lattice-work, through which the witness could peer without being discovered. Its utility was strikingly demonstrated in 1649, in a Valladolid case of alleged bigamy, when one of the wives, Ana Roman, was brought to inspect the accused through the lattice and declared that he was not the Juan González whom she had married, as he differed in age, in size, and in features, whereupon he was discharged.[1668]

* * * * *

In view of the temptation offered for the gratification of malice by shielding informers and witnesses, special care was advisable for the detection and punishment of false-witness. This was the more necessary as perjury was a popular failing and the sanction of an oath was lightly esteemed. In 1555 the Córtes of Valladolid asked that, in cases involving death or mutilation, oaths should be abolished, as they merely led to perjury and, in 1560, the Córtes of Toledo complained of the prevalence of false-witness as a matter so customary that there were provinces in which it was as abundant as any other merchandise, and it was openly said that for money a man could get as many witnesses as he desired.[1669]

[Sidenote: _FALSE-WITNESS_]

We have seen how, in 1488, at Toledo, eight Jews were torn with hot pincers and lapidated for bearing false-witness against good Christians with the object of rendering the Inquisition odious.[1670] This savage penalty compares strangely with the leniency shown to exculpatory perjury in the case of Mossen Pedro de Santangel, Prior of Daroca, who had sought, by the employment of several false-witnesses, to save his brother Luis de Santangel, burnt for complicity in the murder of San Pedro Arbués. He escaped with the simple penance of holding a lighted candle before the high altar and they were treated as benignantly.[1671] It was probably to secure greater uniformity that, in the Instructions of 1498, inquisitors were told to inflict public punishment, according to law, on those whom they detected in testifying falsely.[1672] The matter was one which might well excite solicitude for it is evident that perjury on both sides was rife and the tribunals might reasonably hesitate to believe any witness.

In 1500 and 1501 we find Ferdinand repeatedly interposing to shield those whom he favored and whom he declared to be persecuted by perjurers,[1673] and the career of Lucero shows how readily and unscrupulously they could be employed in the secrecy of the tribunals. The Jaen memorial of 1506 speaks of a certain Diego de Algecira, whom Lucero kept for five years to testify against all whom he desired to destroy and whom the inquisitors of Jaen borrowed for the same purpose, besides other adepts of the kind whom they employed and rewarded. When a raid was made on Arjona, the notary Barzena brought with him Luis de Vilches who, by changing his name and garments, testified repeatedly in different characters.[1674] One of the petitions of the Córtes of Monzon, in 1512, bears eloquent testimony to the same state of affairs in Catalonia, for it asks that, when a man was burnt through fraudulent testimony, the inquisitors should not prevent the king from punishing the false witnesses.[1675] Such a system necessarily produced professional perjurers who did for gain what others might do through malice. That the accused should resort to the same means was inevitable. In Segovia, in 1504, there appears to have been a perfect carnival of false-witness. On July 10th and 11th there were punished two accusing perjurers and twenty-two who had sworn falsely on the side of the defence; there were others who had died before sentence and still more who had confessed and were awaiting punishment, which consisted mostly in scourging and exile.[1676]

Thus far there seems to have been uncertainty as to jurisdiction. In the Catalan efforts for relief, the bull _Pastoralis officii_ was procured from Leo X, August 1, 1576, which rendered perjury committed in the Inquisition justiciable by the inquisitors and ecclesiastical judges in conjunction but not severally.[1677] The result was naturally discouraging and papal intervention was again sought. In a brief of December 14, 1518, addressed to Cardinal Adrian, Leo deplored the condition under which, through false-witness, the guilty escaped and the innocent suffered, but the only remedy provided was in conferring full jurisdiction on inquisitors with faculties to punish, even by relaxation to the secular arm, without incurring "irregularity."[1678]

The crime was thus placed wholly in the hands of the Inquisition, which was no more likely than before to exert itself in checking perjured accusations. This proved to be the case and, in 1523, the Córtes of Valladolid asked that it should inflict on false witnesses the penalties provided by the Laws of Toro in 1502, which decreed the _talio_ for perjury committed in criminal cases.[1679] Charles contented himself with replying that he had asked the pope to appoint as inquisitor-general Archbishop Manrique, whom he would charge to see justice done. That this remedy proved futile may be gathered from the memorial of Granada, in 1526, in which one of the arguments against the suppression of the names of witnesses is the number of souls condemned to hell for perjury, through the facilities offered by the secret system tempting them to destroy their enemies or to swear falsely through bribery, a thing which happens every day.[1680]

[Sidenote: _FALSE-WITNESS_]

In fact the procedure of the Inquisition was such as to encourage the crime and to render its detection exceedingly difficult, at least when committed for the benefit of the prosecution. When every precaution was taken to prevent the accused from identifying his accusers, it was expecting too much of the average inquisitor that he should depart from the routine work of his office to discover, without assistance from those interested, whether the witnesses, mechanically examined by him or his commissioner, were telling the truth or not. Had there been any zeal in this direction, the Suprema would not have felt obliged, in 1531, to instruct the tribunals that perjurers should be punished as a warning to others, giving due consideration as to whether they were actuated by malice or ignorance. Possibly this may have stimulated some tribunal to inconvenient activity for, in 1536, it saw occasion to moderate zeal by ordering that the rigor of the brief of Leo X should not be observed, unless some one had been condemned through false evidence, and even in such case the Suprema was to be consulted before action.[1681] The infallibility of the Inquisition was too important to be rashly compromised.

Moderation thus remained the rule. Simancas tells us that, under Leo's brief, perjurers should be burnt, with confiscation, but this should only be done when the accused has suffered severely; in most cases the injury is but slight, for which such penalties suffice as appearing in an auto with a defamatory mitre and scourging, galleys or exile; even when burnt there are no disabilities on descendants; the _talio_ has become virtually obsolete and should be used only in extreme cases; subornation of perjury is even worse than false-witness and incurs the same punishment.[1682]

Theoretically this reflects the ordinary practice. I have met with but one case in which a perjurer was burnt and this was in Sardinia, in 1562, but about 1640 an experienced inquisitor states that he has seen records of such cases in Logroño and it is possible that they occurred occasionally.[1683] So also we sometimes find scourging and the galleys in aggravated cases, while priests were let off with fines and exile. Still, the tendency was to extreme moderation. In Valladolid, Juan Gomez Rubio suffered imprisonment for nearly two years, from 1636 to 1638, on a charge of blasphemous propositions, when his case was suspended and he was dismissed with a reprimand and the corresponding infamy. His accuser was Pedro de la Cruz who had testified twice against him under fictitious names and had suborned others to appear against him, for which he escaped with parading in _vergüenza_ and exile.[1684]

A still more significant case was that of Jean de la Barre, a Fleming, long settled in Madrid, where he was deputy alcalde of the royal palace of the Pardo. He was a man of somewhat excessive devoutness. He had a mass celebrated daily in the royal chapel by a chaplain of his own, until the regular chaplain, a Dr. Robles, who was also commissioner of the Inquisition, forbade it and forced him to the church of the Trinitarians. He endeavored to form a cofradia for celebrating masses, but Robles demanded to be the head of it and to handle the funds without accountability, when la Barre abandoned the project, although he had spent five hundred ducats on a silver lamp for the chapel. They naturally quarrelled and, when Robles sought a reconciliation, his overtures were rejected. He revenged himself, in January, 1656, by denouncing la Barre for various heretical speeches, for neglecting mass and confession and, what was perhaps more serious than all, for saying that inquisitors were robbers who seized rich men to strip them of their property. La Barre had discharged several workmen for theft and idleness, and they were readily induced to appear as corroborating witnesses. He easily identified his accusers and in defence presented twenty-five witnesses in his favor, among them five Trinitarian frailes and some officials of high rank, who testified emphatically to his unusual devotion; his rosary was never out of his hands, he heard mass daily and spent three reales a day for it. They also told of the mortal enmity and threats of Robles and the discharged workmen and showed the reasons. There could be no clearer case of a foul conspiracy to ruin an innocent man, but he was sentenced to reprimand and exile and was threatened with a hundred lashes if he dared to speak of his treatment. That his case was suspended and he was not required to abjure even _de levi_ show that there was no suspicion of heresy proved and that the sentence, with its consequences of infamy on him and his posterity, was a mere wanton exercise of arbitrary power, while the false witnesses were not troubled, for there are no marginal notes on the record showing that extracts were taken from the evidence for their prosecution.[1685]

[Sidenote: _FALSE-WITNESS_]

It was still admitted that the legal punishment was the _talio_, but that it should only be inflicted when the perjurer had encompassed the conviction of his victim, thus weighing the crime, not by its criminality but by its result.[1686] How lightly, indeed, false swearing was regarded _per se_ is indicated by a curious case occurring in Valladolid, in 1630. A student named Luis Sánchez denounced certain Portuguese of Zamora of endeavoring to convert him. The receiver and an alguazil were sent thither, but could find no trace of the accused nor even of the street in which they were described as residing. Sánchez was sent for, was made to ratify his deposition, and was then accused of the fraud and mockery of the tribunal. He admitted it and explained that he had been thrown into gaol in a suit over a mare and had devised this expedient for getting out, in hopes of escaping to the asylum of a church. His trial went through all the regular stages; the vote of the consulta de fe was sent to the Suprema, which contented itself with sentencing him to a reprimand, six years' exile from Valladolid and a fine of two hundred ducats, with the charitable alternative that, if he was too poor, he should swear to pay it if he should ever be able.[1687] While thus the Inquisition was benignantly disposed towards perjury, the secular law did not relax its severity. In Aragon the Córtes of Monzon, in 1564, decreed the _talio_ in criminal cases for accusing false witnesses and for those produced by the defence, in addition to the penalties prescribed by the fueros--scourging and perpetual banishment--besides making good all expenses incurred by the other party. In Castile, a pragmática of Philip II, in 1566, confirmed by Philip III, in 1603, when the case was not capital, substituted, for the talio, scourging and the galleys for life.[1688] The tenderness of the Inquisition for such offences was not derived from any softening of the law of the land.

With the development of limpieza there sprang up a new and fruitful source of perjury. Those who were endeavoring to prove immaculate descent had no scruple in filling any genealogical gaps by purchasing witnesses to supply deficiencies, and those who, through envy or malice, desired the defeat of an aspirant, found ready means of putting forward witnesses to swear as to public repute, or that they had seen sanbenitos of ancestors. As early as 1560, and again in 1574, the Suprema found it necessary to issue instructions to meet these cases.[1689] Bigamy trials also brought to light a contingent of perjurers, mostly employed by the guilty party desiring remarriage, to swear that he or she was single.[1690]

Notwithstanding these accessions and of the fact that in most cases there were several accomplices, the number in the records is surprisingly few. Partly this is explicable by the extreme difficulty of detection, owing to the suppression of witnesses' names and the impediments thrown in the way of the defence, and partly by the indifference of the tribunals, which do not seem to have regarded it as their duty to prosecute perjurers--at least those for the prosecution. When, in 1640, Agustin Gómez de la Peña, cura of Perdigon, was tried in Valladolid for carrying unconsecrated forms in the procession of Corpus Christi, and the case was suspended on the ground that the testimony was perjured, the Suprema, in approving the vote, felt it necessary to order that the fiscal should prosecute the accuser and his witnesses, showing that this was by no means a matter of course.[1691] Be this as it may, in Toledo a record, extending from 1575 to 1610, and embracing 1172 trials, only contains eight cases of false-witness, and a further record of the same tribunal, from 1648 to 1794, has not a single one in its aggregate of 1205 cases.[1692] In Valladolid, out of 667 trials occurring between 1622 and 1662, there are but seven cases of false witness.[1693] In Madrid, the records, from 1703 to 1751, present but a single trial for false-witness, and this arose out of a marriage case.[1694]

Unfortunately these slender returns do not prove that perjury was uncommon. Philip V, among his other attempted reforms, in a decree of July 26, 1705, called attention to the facility afforded to the execrable wickedness of false denunciations and false-witness, imposing on many innocent persons the difficult task of protecting honor, property and life, to the perversion and scandal of justice. These enormous and pernicious abuses he attributed to the non-enforcement of the penalties prescribed by the laws, because the moderate punishments, so rarely inflicted, encouraged rather than repressed the audacity of the evil-minded. He therefore ordered the Suprema to see that the legal penalties were rigorously imposed, and the Suprema obediently transmitted this to the tribunals with instructions to conform to it strictly.[1695]

[Sidenote: _FALSE-WITNESS_]

This seems to have had some effect, but not much. In a collection of all the autos held in Spain, from 1721 to 1727, out of 962 sentences, there are but seventeen for false-witness and these represent only about half that number of cases, for in one there were five accomplices and, in two others, three each. The punishments remain as of old, scourging, galleys and exile, and there is no difference made between offenders in marriage-cases and those involving the death-penalty by accusations of Judaism. One of these latter excited considerable interest at the time. Three penitents from Cadiz, undergoing punishments for Judaism, accused fourteen persons of practising Jewish rites, but they had not studied their parts well, their stories did not accord and, on being arrested, they confessed. Their intended victims were honored with a special auto de fe in Seville, November 30, 1722, to which they were conveyed by familiars in the handsomest coaches of the city; in the church of San Pablo they were seated near to the inquisitors, the evidence was publicly read, their innocence was proclaimed, and they were carried home in the coaches. This was followed, June 6, 1723, by the auto in which the perjurers were sentenced to two hundred lashes apiece and the two of them, who were men, to seven years in the galleys. Somewhat similar was a case in Santiago, in 1724, when five culprits were concerned, of whom the leader, Pedro García Rodríguez, was punished with two hundred lashes and five years of galleys, while his accomplices had the lashes and eight years of exile.[1696]

The moderation shown towards perjury increased in the latest period. In 1817, the deacon Manuel González Ribadeneyra was prosecuted for it by the tribunal of Santiago but, when the _sumaria_ was submitted to the Suprema, it sent a commission to the Benedictine Abbot of Monforte to warn the offender that in future he must conform his depositions to the truth, as becomes a minister in holy Orders, for otherwise he would not be treated with the benignity which now imposed on him only eight days of spiritual exercises in the monastery. Apparently even this was expected to excite resistance, for a further provision threatened him, in case of refusal, with prosecution according to law.[1697]

* * * * *

Theoretically there was laudable care as to the sufficiency of evidence for condemnation. The ancient Glossator on the Decretum says that two witnesses are sufficient to convict a pope, but the authorities, both of the Old and the New Inquisition, hold that, although this is good in ordinary law, yet, in a crime entailing such consequences as heresy, especially as the defence is crippled by the suppression of the witnesses' names, there should be much hesitation in convicting a man on the evidence of only two witnesses.[1698] Still, two were reckoned sufficient, unless they were accomplices, when three were required and these supported by other indications.[1699] Yet as one witness was sufficient to justify torture, these scruples did not save the accused but only exposed him to the risk of convicting himself if his endurance did not exhaust the resources of the torture-chamber. In fact, in the secrecy of the tribunal, the discretion of the judges was the only rule, and they could construe the laws of evidence as they saw fit, as when a visitation of Barcelona led the Suprema, in 1568, to rebuke the inquisitors because, on the evidence of a single witness they prosecuted Guillen Contada, tortured him twice and, without convicting him, abandoned him to the secular arm for burning; nor was he the only victim of the kind, for they did the same with Juan del Payen.[1700] How much of this occurred elsewhere the world will never know.

The theory that it required two witnesses to prove a fact was developed into the rule that they must be _contestes_--that is, witnesses to the same individual act of heresy--before it could be accepted as proved. It is often found urged in the arguments for the defence that the witnesses are _singulares_ and not _contestes_, but in practice such a defence was usually disregarded or, at most, only led to the unfailing resource of torture. Thus, in a case referred to the Suprema for decision, the tribunal reported that there were many witnesses to prove that the accused was a Jewess, but they were not contestes, for none of them cited the others, but each one named somebody else who could attest the fact: they deposed to the same time and place, but varied as to the years. In the consulta de fe some members voted for relaxation and others for torture; the matter was sent up to the Suprema and, whatever its decision may have been, the accused suffered.[1701]

[Sidenote: _CHARACTER OF EVIDENCE_]

Even in the seventeenth century, Escobar affirms the rule absolutely; if one witness swears that he heard Pedro say in the market-place that God is not a Trinity and another that he heard him say so in a house, it does not convict him for neither fact is legally proved.[1702] Such a definition, however, threw too many obstacles in the way of the prosecution not to be eluded and, in fact, there were classes of cases, such as solicitation in the confessional, in which it was impossible to have more than one witness to each individual act. So, in prosecutions for Judaism, in which the evidence frequently covered a long series of years and turned on infinitesimal incidents in daily life, concurrent witnesses to any single one could scarce be had. Yet the claims of the Inquisition to extreme benignity required this to be understood as Escobar expresses it, while in practice it was disregarded. It was discovered that witnesses could be _contestes in genere_ when they testified to different acts of heresy, and thus make full proof. It is true that Rojas, after citing authorities on both sides, concludes that the rule requiring two concurrent witnesses to a fact must be observed, but one of his authorities asserts that the contrary is the rule in practice, and the Suprema affirmed this, July 27, 1590, by ordering that, where formal heresy is concerned, depositions as to different ceremonies and points of faith are to be held as _contestes_.[1703] This was inevitable and it was only sanctioning what had long been the custom in the tribunals.

* * * * *

There was much laxity in the character of the evidence accepted. In the secular courts, hearsay testimony was not admitted as proof unless a witness had heard a matter from so many persons as to constitute public fame, in which case it was allowed a certain weight.[1704] In the Inquisition the same rule was nominally followed, but in practice hearsay evidence was welcomed and was utilized. All the gossip and tattle of a village was eagerly accepted and recorded, to be reproduced in the publication of evidence furnished to the accused, and it unquestionably had its weight when laid before the consulta de fe which voted the sentence. Witnesses were often brought in to swear that they had heard the direct witness assert that the accused was guilty of the heresy charged, and this was regarded as cumulative evidence. Sometimes it happened that these secondary witnesses made a much stronger statement than their principal and, in such case, the fiscal was directed to insert both in the accusation, with the reserve that the direct testimony would be considered when sentencing, the object being to terrify and mislead the prisoner.[1705] The kind of evidence that was gravely accepted and recorded is seen in the trial of the Licentiate Luis de Guevara, who was reconciled in the Toledo auto de fe of 1594. In an abstract of the more important testimony it is stated that the fourth witness had heard a man say that a certain Morisca was a great bitch, for she coupled with other dogs, meaning the said Luis de Guevara.[1706] Such hearsay gossip was laboriously accumulated to an incredible degree, and it is easy to appreciate its effect on the defendant, when cunningly mingled with the direct evidence in the publication of witnesses, which he was required to answer on the spot, item by item, tending to confuse him and leading him to entrap himself. In the trial at Valladolid, in 1641, of Sebastian de los Rios, cura of Tombrio, there were fourteen witnesses _de visu_, or direct, and twenty _de oidas_, or hearsay, and, in 1659, Guiomar Antunes was thrown into the secret prison, with sequestration on the testimony of one witness _de visu_ and eleven _de oidas_. Latitudinarianism as to evidence could scarce go further than in the case of Fray Alonso Capera, tried in 1643, as a _curandero_ for treating disease by conjurations, against whom there testified twenty witnesses, "men and women, minors and adults, some direct, others hearsay and others on suspicion."[1707] When it is remembered that no witness, however infamous or unfit, was rejected, we can conceive the quality of the evidence on which depended the fate of the accused.

* * * * *

[Sidenote: _CHARACTER OF EVIDENCE_]

While the Inquisition claimed jurisdiction over all heresy, internal and mental, as well as external and formal, it could only prosecute when heresy was manifested or inferable by external acts or words, and these had to be investigated with the utmost minuteness. The land was filled with those whose external conformity might be but the cloak for secret dissidence. The New Christian was regarded with suspicion, as a possible or even a probable apostate, whose baptism only served to render him guilty and to subject him to the jurisdiction of the Inquisition. He might be regular in religious observance, be liberal to church and friar, be a constant purchaser of the Cruzada indulgences, and yet be secretly a believer in the Law of Moses or of Mahomet. It was the business of the Inquisition to detect and punish these apostates; it was rarely that they betrayed their infidelity by imprudent avowals or hasty speeches, except to so-called accomplices or to cell-companions, and, in the absence of such witnesses, for the most part, the only proof against them arose from their adherence, in the privacy of their homes, to the rites and usages which, through long succession of generations, had become a second nature. It was on this, then, that prosecutions largely depended, and the simplest acts that savored of Judaism or of Islam were regarded as incontrovertible proofs of apostasy, requiring reconciliation to the Church, with all that it implied and, if subsequently persisted in, proving relapse with its penalty of the stake.

Familiarity with the practices of the condemned religions was therefore part of the necessary training of the inquisitor, and long descriptive catalogues were compiled for their information. In order also that the people might be duly instructed, and be on the watch to denounce their neighbors, these were incorporated in the Edicts of Faith annually published in all the churches. Much of the evidence recorded in the trials and, for the most part, accepted as conclusive, consists of acts in themselves perfectly innocent and appearing to us wholly indifferent and unworthy of consideration. Observing the Ramadan or the fast of Queen Esther of course would admit of no extenuation, but there were a host of trivial observances which seem to the modern mind altogether inadequate to the prominence accorded to them in the trials. This extreme minuteness with which such observances were held to prove apostasy was an innovation. Of old, the Church recognized the impossibility of changing abruptly customs so imbedded in the routine of daily life, and, while such practices were to be repressed, they were not treated as heresy. The great council of Lateran, in 1215, alludes to their frequency, but contents itself with ordering prelates to force converts to abandon all remnants of their old faith.[1708] It was otherwise in Spain and the evidence on which prosecutions were based and punishments inflicted would often appear to us to be of the flimsiest character.

Changing the body-linen or table-linen on Saturday, lighting candles on Friday and similar observances were proofs of a most damaging character; even eating _amin_--a broth liked by Jews--is enumerated among the offences entailing appearance in an auto de fe.[1709] When Brianda de Bardaxí was on trial at Saragossa, in 1491, she admitted that, when a child, she had eaten a few mouthfuls of Passover bread given to her by a playmate, and this was gravely detailed in her sentence as one of the proofs of "vehement suspicion" for which she was severely punished.[1710] Circumcision, in the later period, was an evidence almost decisive and, with male defendants, an inspection by the surgeon of the tribunal was customary but, in the earlier time, before the expulsion and forced conversion of the Jews, it was merely an indication that a man was a New and not an Old Christian, yet in an auto de fe at Saragossa, in 1486, Pedro and Luis de Almazan, on this evidence alone, were sentenced to perform penance with lighted candles and to ten years of exile.[1711] Among the Moriscos, staining the nails with henna was held to justify suspicion; refusing to eat the flesh of animals that had died of natural causes was highly damaging; a propensity to cleanliness by washing one's self was an indication of apostasy and, in the trial of Mari Gómez at Toledo, in 1550, as a relapsed impenitent, one of the charges was that, in her former trial, she had not confessed that, some fifteen years before, a kid had been killed in her house by cutting its throat.[1712]

[Sidenote: _CHARACTER OF EVIDENCE_]

How slender was the evidence requisite for prosecution is manifested in the trials of a whole family, in Valladolid, from 1622 to 1624. When Dr. Jorje Enrriquez, physician to the Duke of Alva, died, the body was soiled, requiring washing, followed by a clean shirt. A number of witnesses thereupon deposed that it was prepared for sepulture according to Jewish rites. The consulta de fe on the arrest was not unanimous, and it was referred to the Suprema, which ordered the arrest of all concerned, with sequestration. The whole family, widow, children and servants, with some cousins, were thrown into the secret prison and the eldest son, a youth of twenty, died from the effects of torture. After nearly two years of this, the evidence was so weak that the consulta de fe voted _in discordia_ and the Suprema ordered the prisoners to be acquitted. So, in 1625, Manuel de Azevedo, a shoemaker of Salamanca, was denounced because he had removed the lump of fat from a leg of mutton which he took to a baker to be roasted. The consulta voted to dismiss the case but the fiscal appealed to the Suprema, which ordered arrest with sequestration. The trial went on through all the forms and when at length Azevedo learned from the accusation what was the charge, he said that he was ignorant of this being a Jewish custom, but had been told that a leg of mutton roasted better when the fat was cut out. When the defence was reached he proved that he was an Old Christian on all sides; he was not acquitted but the case was suspended. Had he been a New Christian he would have been tortured and penanced, whether he overcame the torture or not. In another case, in 1646, one of the charges was that the accused, in slicing bread, held the knife with the edge turned away and not towards his breast, as was customary with Christians. Trivial as all this may seem, one occasionally meets a case showing that the Inquisition did not always spend its energies in vain in following up the slenderest evidence, however great were the sufferings frequently inflicted on the innocent. In several Jewish cases in Valladolid, in 1642, the chief evidence was that the meat before cooking was soaked in water to remove the blood and grease. This led to the discovery and punishment as Judaizers of a group of some fifteen or twenty in Benavente, who appeared in the auto de fe of 1644. As soon as one was brought to confess, he implicated others, and the net was spread which captured them all. The fact, however, that torture was freely used casts an unpleasant doubt over the justice of the result.[1713]

Suspicion might be aroused by negative as well as by positive indications and, in the Spain of the Inquisition, it behooved every man to be scrupulously exact in the performance of what were regarded as evidences of orthodoxy, as well as in the avoidance of what created doubt, for everywhere around him were zealous spies, eager to serve the faith. In 1635, Manuel Mardes, travelling with his wife and two other women, passed two men laboring in a field without saluting them. One of them asked him why he did not say "Praised be Jesus Christ" or "Praised be the most Blessed Sacrament," to which he imprudently replied that God was not known in his own land. The laborers promptly denounced him to the nearest commissioner of the Inquisition, who arrested him. The calificadores voted that this was manifest Judaism and he was thrown into the secret prison of Valladolid, with sequestration. Then there came additional evidence from a cell-companion that he washed his hands on rising and before eating. He denied all intention until he was smartly tortured, when he confessed all that was desired.[1714]

Naturally this negative evidence was habitually sought by the tribunals. In the trials for Judaism and Mahometanism, the accused was always interrogated as to his training in Christian formulas. He was asked to recite the credo and the customary prayers of the Paternoster, the Ave Maria and the Salve Regina, and was made to cross himself, to see whether or not he did it in a manner to show that it was habitual. In Spain there were two forms of this--_santiguarse_ and _signarse_--the former consisting in making the sign of the cross, with the thumb and forefinger joined, passing them from forehead to cheek and from the left to the right shoulder; the latter in touching the forehead, mouth and chest with the thumb and forefinger of the right hand, or with the thumb alone. This was often a crucial test. Of Mari Gómez it is recorded, July 15, 1550, "She repeated the Ave Maria; she was imperfect in the Paternoster and the creed and said she did not know the Salve Regina. She performed the signo ill but the santiguada well."[1715]

* * * * *

It has seemed worth while to enter thus minutely into the details of inquisitorial treatment of evidence, as it was so largely a determining factor in the fate of the accused. From this examination it is impossible to resist the conclusion that the system of procedure was framed rather to secure conviction than to ascertain the truth. Guilt was presumed in the fact of arrest and the business of the tribunal was to prove it.