CHAPTER VIII.

THE TRIAL

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

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

* * * * *

[Sidenote: _AUDIENCES_]

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

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

* * * * *

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

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

[Sidenote: _THE THREE MONITIONS_]

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

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

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

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

[Sidenote: _THE ACCUSATION_]

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

* * * * *

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

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

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

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[Sidenote: _THE ADVOCATE FOR THE DEFENCE_]

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

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

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

[Sidenote: _OFFICIAL ADVOCATES_]

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

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

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

[Sidenote: _FUNCTION OF THE ADVOCATE_]

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

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

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

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

[Sidenote: _PROCURATORS NOT ADMITTED_]

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

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

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

[Sidenote: _THE CURADOR_]

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

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

* * * * *

[Sidenote: _PUBLICATION OF EVIDENCE_]

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

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

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

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

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

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

[Sidenote: _PUBLICATION OF EVIDENCE_]

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

* * * * *

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

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

[Sidenote: _THE DEFENCE--RECUSATION_]

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

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

[Sidenote: THE DEFENCE--INSANITY]

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

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

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

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

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

[Sidenote: _THE DEFENCE--INSANITY_]

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

[Sidenote: _THE DEFENCE--INSANITY_]

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

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

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

* * * * *

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

[Sidenote: _EVIDENCE FOR THE DEFENCE_]

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

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

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

[Sidenote: _EVIDENCE FOR THE DEFENCE_]

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

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

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

[Sidenote: _THE DEFENCE_]

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

* * * * *

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

* * * * *

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

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

* * * * *

[Sidenote: _EXAMINATION OF THE ACCUSED_]

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

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

* * * * *

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

[Sidenote: _THE CONSULTA DE FE_]

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

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

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

[Sidenote: _DELAYS_]

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

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

* * * * *

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

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

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

[Sidenote: _DELAYS_]

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

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

[Sidenote: _DELAYS_]

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

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

* * * * *

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

[Sidenote: _PROSECUTION OF THE DEAD_]

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

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

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

[Sidenote: _PROSECUTION OF THE DEAD_]

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

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

[Sidenote: _PROSECUTION OF THE DEAD_]

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

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

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

* * * * *

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

[Sidenote: _PROSECUTION OF THE ABSENT_]

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

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

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

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

[Sidenote: _PROSECUTION OF THE ABSENT_]

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

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

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

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

[Sidenote: _BURNING OF EFFIGIES_]

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

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

* * * * *

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