CHAPTER I.

THE SENTENCE.

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

* * * * *

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

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

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

* * * * *

[Sidenote: _DELAYED UNTIL THE AUTO DE FE_]

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

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

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

[Sidenote: _APPEALS_]

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

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

* * * * *

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

[Sidenote: _SEVERITY OR BENIGNITY_]

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

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

* * * * *

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

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

[Sidenote: _NON-PERFORMANCE_]

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

* * * * *

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

[Sidenote: _NON-PERFORMANCE_]

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

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

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

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

[Sidenote: _NON-FULFILMENT OF PENANCE_]

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

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

* * * * *

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

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

[Sidenote: _ACQUITTAL_]

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

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

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

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

[Sidenote: _SUSPENSION_]

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

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

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

[Sidenote: _ADMISSION TO BAIL_]

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

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

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

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

[Sidenote: _COMPURGATION_]

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

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

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

* * * * *

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

* * * * *

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

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

[Sidenote: _COMPURGATION_]

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

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

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

[Sidenote: _COMPURGATION_]

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

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

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

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

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

[Sidenote: _COMPURGATION_]

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

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

* * * * *

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