CHAPTER II.

MINOR PENALTIES

In the preceding chapter the general penal system of the Inquisition has been considered, but for its proper comprehension a brief exposition of its several penalties is requisite. In this it is unnecessary to treat of confiscation and pecuniary penance which have already been discussed as constituting the financial basis of the existence of the Holy Office.

REPRIMAND.

Of the minor inflictions, the most nearly universal was the reprimand. It is naturally absent from the severer sentences of reconciliation and relaxation but, with these exceptions, scarce any defendant escaped it, no matter how groundless the accusation was proved to be, or how plainly his innocence was manifested. The freedom with which it was administered is evidenced in a phrase of frequent occurrence in the reports of the Toledo tribunal--"as no offence was proved, he was reprimanded and warned for the future."[320] We have seen that some strict constructionists held that reprimand was incompatible with suspension, but that this principle was universally disregarded. The same authority asserts that no reprimand was to be administered without a formal sentence, but cases are numerous in which it is expressly recorded that the party was reprimanded without a sentence, and sometimes this was by the special command of the Suprema. In the Valladolid tribunal there were eight such cases in the year 1641.[321] To scold the defendant was one of the prerogatives of the inquisitor, from the use of which he rarely abstained, especially as it afforded the opportunity of expatiating on the benignity which imposed penalties so incommensurate with the offences.

The severity of the infliction varied with his temper and power of invective, but constant practice rendered him skilful in detecting the sensitive places, and in applying the lash where it would be most keenly felt. There were those among the victims who regarded this as a severer penalty than a pecuniary penance, and it is not surprising that it occasionally drew forth remonstrance and retort, which were promptly suppressed by the infliction of a fine for the expenses of the tribunal.[322] No record was made of reprimands, beyond the fact of their utterance, but there is one which chances to have been preserved as it seems to have been carefully elaborated and reduced to writing. It was administered by the Licentiate Juan de Mañozca, who had been President of the Chancellery of Granada, to an unlucky gentleman prosecuted for having said that belief in matters of faith was good breeding. He had made the case worse by arguing, in his defence, that he could conceive of no word more applicable to the matter than _cortesía_, and that his long residence at the court had familiarized him with all the niceties of the Castilian tongue. For this, as a proposition ill-sounding and savoring of heresy, Mañozca belabored him through ten closely-written pages of savage ridicule. "In the Andalusian tunny fishery" he said "there may be seen an infinity of tunnies, the smallest of them as big as you, and yet not one of them will show the least particle of salt, although they have lived in the midst of salt." So he went on, quoting the Scriptures, the classic poets and Plato, to prove that the unfortunate culprit was an ignoramus, closely approaching a heretic. Such ignorance was likened to the unfruitful ears of corn which, according to Christ, are only fit to be swept up and burnt, and the diatribe concluded with the significant warning that it was the Inquisition which gathered such worthless stocks and delivered them to the secular arm, that they might pass through temporal to eternal flame.[323] Doubtless the culprit was a fool, but his folly merited no such terrific warning.

ABJURATION.

Suspicion of heresy, as we have seen, was, in itself, a crime requiring punishment. In accusations of formal heresy which failed of proof, there remained, as a rule, at least suspicion, and there was besides a number of offences which, though not in themselves heretical, were brought under the jurisdiction of the Inquisition by a more or less forced assumption that they inferred suspicion of heresy--that no one who believed rightly as to sacraments and points of doctrine could be guilty of them. In the Old Inquisition, this suspicion was classified as light, vehement or violent and these distinctions were retained in the New. Violent suspicion, however, may be discarded from consideration here, for it sufficed for condemnation and, in practice, it admitted of no disproof or explanation for, although theoretically it might be explained away, this was but a bare possibility. As Peña says, it created presumption of law, as when a man remained for a year under excommunication.[324]

The distinction between light and vehement suspicion was somewhat nebulous. Like everything else in the vague region of morals, it was incapable of accurate definition, and each case had to be decided on its own merits, according to the temper of the judges. Alberghini's attempted test of infrequent or habitual performance of acts inferring suspicion fails utterly in practice and moreover leaves unsettled the more important and common class of cases where testimony was insufficient for conviction and yet too strong for acquittal.[325] Moreover, suspicion might be modified by exterior circumstances, as when Miguel Calvo tells us that, with Moriscos, however slender may be the suspicion, it must be treated as vehement.[326] It was evidently impossible to prescribe any absolute rule, and it is to the credit of the Inquisition that it rarely pronounced suspicion to be vehement, while light suspicion occurs in almost all sentences short of reconciliation. Thus, in the Toledo record from 1648 to 1794, there are three hundred and fourteen abjurations _de levi_ and only fifty-one _de vehementi_--or about an average of one every three years.[327]

Whatever other punishment might be visited on suspicion, abjuration of heresy in general, and especially of the heresy suspected, was indispensable. This could be administered either in the audience-chamber, or in a public auto de fe, and was an impressive ceremony. In the face of a cross and with his hand on the gospels, the culprit swore that he accepted the Catholic faith and detested and anathematized every species of heresy, and especially that of which he was suspect. He pledged himself always to keep the faith of the Church and to be obedient to the pope and the papal decrees. He declared that all who opposed the Catholic faith were worthy of condemnation, promising never to join them, but to persecute them and denounce them to prelates and inquisitors. He swore to receive patiently and humbly all penance imposed on him, and to fulfil it with all his strength. If the abjuration was for light suspicion, he consented and desired that, if he failed in any part of this, he should be held as impenitent and he submitted himself to the correction and severity of the canons, so that the penalties prescribed in them should be executed on his person, and finally he called upon the notary to record it and on all present to serve as witnesses. If the abjuration was for vehement suspicion, he consented and desired that, if he failed in his promises, he should be held and considered as a relapsed and suffer the penalties provided for relapse. This was the difference between abjuration _de levi_ and abjuration _de vehementi_, so often alluded to above, and it was of no small import under the canons. After the former, reincidence in the offence entailed no special penalty; it was at the discretion of the tribunal merely to repeat the previous sentence, or to aggravate it, as the case might appear to deserve. But, after the latter, reincidence was relapse, for which the canons decreed irrevocable burning, _ipso facto_ and without trial. To impress this on the penitent, his abjuration _de vehementi_ was written out and he was made to sign it. Then, on the next day after the auto de fe, he was brought into the audience-chamber, it was read to him and he was warned to observe its conditions for, if he should again fall into any heresy whatever, he would be treated as a relapsed without mercy, and it would be the same if he did not perform the penance imposed.[328]

[Sidenote: _ABJURATION_]

In spite of these impressive formalities, I think it doubtful whether, after the first furious rush of persecution was past, the extreme penalty of relaxation, for reincidence after abjuration _de vehementi_, was customary. As a rule, in the later periods, inquisitors rather endeavored to avoid relaxation and, while they were callous, they were not apt to be unnecessarily cruel. I have not happened to meet with such a case, while I have found more than one in which the canons were not observed. In fact, a learned writer of the second half of the seventeenth century argues elaborately, with the citation of many authorities, to show that reincidence after abjuration _de vehementi_ does not incur the punishment of relapse, despite the penalties expressed in the formula, and this would appear to have been tacitly accepted, for a custom arose of specifying in the sentence whether or not the abjuration should entail the penalty. Thus, in 1725 at Cuenca, Doctor Zapata, accused of Judaism, was required to abjure _de vehementi_ with liability to relaxation, while in 1794, at Toledo, Damaso José López de Cruz, for heretical propositions, was sentenced to similar abjuration without such liability.[329] There was another distinction between the two forms of abjuration, for those who abjured _de vehementi_ were subject to the disgrace of appearing in an auto de fe and of wearing a sanbenito _de media aspa_--or with one band of color across it, before and behind.[330]

The Instructions of 1561 state that, when there is semi-proof, or such indications that the accused cannot be acquitted, there are three remedies, compurgation, torture or abjuration; but this is scarce correct, for those who succeeded in compurgation were always, and those who overcame torture were generally, required to abjure. The Instructions add that abjuration, whether for light or vehement suspicion, is rather a measure to inspire fear for the future than a punishment for the past, and therefore it is usually accompanied with pecuniary penance.[331] In fact, it was only in trifling cases, or in suspensions, that abjuration was not associated with much severer penalties. This was inevitable in the large class of offences which, by a strained construction, inferred suspicion of heresy. In these, when guilt was proven, it received its appropriate punishment, perhaps of scourging or the galleys, and the abjuration was a mere formality to satisfy the artificial ascription of heretical belief. In cases of suspicion of real heresy, abjuration, whether _de levi_ or _de vehementi_, was a necessary adjunct to the punishment. Thus in the Toledo auto of February 7, 1694, Luis de Vargas, for "suspicions of Judaism," was sentenced to abjure _de levi_, to pay a fine of two hundred ducats and to be exiled for six years from various places. So, in 1715, at Toledo, the Carmelite Fray Francisco Martínez de Salazar, "for crimes vehemently suspect of heresy," appeared in the audience-chamber with a sanbenito _de media aspa_, in the presence of twelve priests; he abjured _de vehementi_, was sternly reprimanded and threatened, and sentenced to a long list of penalties, including deprivation of functions, reclusion for six years in a convent and a circular discipline in the Carmelite house of Toledo.[332] On this composite sentence the consulta de fe had evidently exhausted its ingenuity, and the abjuration was merely a formal necessity to justify the rest. Yet, while abjuration in itself can scarce be termed a punishment it was, even when only _de levi_, an infliction of no little severity, in consequence of the infamy which it entailed, as we have seen in the Villanueva case, where the victim and his kindred struggled for so many years in Rome to have it removed.

EXILE.

[Sidenote: _EXILE_]

Frequent allusions above to exile as occurring in sentences indicate how customary a feature it was in the penal system of the Inquisition. By itself, or in combination with other penalties, it was an unfailing resort in offences that did not incur the graver punishment of imprisonment. It could be varied indefinitely, to suit the peculiarities of each case, and the tribunals exercised the widest discretion in its employment. In its usual form it designated certain places and a fixed number of leagues around them, which the penitent was forbidden to enter. The list of proscribed localities as a rule included Madrid, or rather the royal residences, the seat of the tribunal, the dwelling-place of the culprit, if this was not comprised in the others, and any other towns, sometimes amounting to four or five, where he had been known in his guilty career. Although this was a convenient resource to the tribunal, it was a somewhat irrational penalty, the severity of which could hardly be guessed at, for while it might be scarce more than an inconvenience to one offender, it might be the destruction of a career to a merchant established in business, or to a professional man with an assured _clientèle_. Considerations of this kind, however, rarely influenced the tribunals and, in the Toledan record of 1575-1610 we find exile included in a hundred and sixty-seven sentences.

The length of exile was always specified, and varied from some months to a life-time, but it usually was a term of a few years. Sometimes it was divided into two portions, the first _preciso_ or absolute, the second _voluntario_ or dependent upon the will of the tribunal--apparently as an incentive to amendment. A variant of this occurs in the case of Diego de Toro, sentenced for bigamy at Toledo in 1652, to four years of exile absolutely and four years more which he was to fulfil whenever the tribunal should see fit to order it, thus holding it over him indefinitely.[333]

It was not often that the Inquisition exercised the power of banishment from Spain, but it did not hesitate to assume such authority when it saw fit, and a converse to this was the occasional prohibition to leave Spain, of which an instance is cited above (p. 102). Another form, in which the wide discretion of the tribunals was exhibited, was forbidding the penitent to approach within a specified distance of the sea-coast. This was not infrequent in sentences on Moriscos, whose relations with Barbary always excited apprehension, but it is not apparent why the Valladolid tribunal, in 1659, when sentencing Diego de la Peña for Jewish tendencies, should have included an inhibition to approach within eight leagues of any sea-port without a special licence.[334]

Again, we sometimes find a penitent exiled to some particular place for a term of years, and this is frequently combined with provisions for keeping him under surveillance. Thus the Valladolid tribunal, in 1659, sentenced Isabel Rubía and María Martin, for sorcery, to reside for four years in a place to be designated, where there was an official to whom they must present themselves monthly and who would report as to their amendment.[335] This was sometimes a form of commutation for imprisonment, as in the case of Isabel Núñez, sentenced at Cuenca to prison and Sanbenito, which was modified to four years' exile at San Clemente. December 24, 1657, she presented a notarial certificate of her being there and begged that, as she was 74 years old and very poor and miserable, she might be released, in honor of the birth of the prince (Felipe-Prosper) or at least have the place changed to Alcalá, Guadalajara or Pastrana, where there were people who would help her. This pitiful petition was simply endorsed to be filed with the papers of the case, which indicates that it was refused.[336] A more rigorous example of this, which shows that no limit was placed on the discretion of the Inquisition, was the banishment for life to the Philippines, in 1802, of two frailes concerned in the imposture of Isabel María Herraiz, known as the Beata of Cuenca.[337] Conversely, a penitent might be prohibited to leave a designated place, as when, in 1599, Rodrigo Ramírez, a Morisco of Yepes, was forbidden for three years to leave Yepes without licence.[338]

As the ordinary form of exile was easily violated, the sentence, as we have seen above, was frequently accompanied with a threat of increased penalties for non-fulfilment. In Toledo this seems ordinarily to be a doubling of the original term, but frequently it was more severe as, in 1604, at Valencia, the sentence of Bartolomé Posca added to this a hundred lashes and, in 1607, Francisco Xiner, condemned to five years' exile, was threatened with three years of galleys.[339] It was probably to check, in some degree, the facility for evasion that the Suprema, in 1665, required the tribunals to furnish it with a description of the culprit whenever they pronounced a sentence of exile. As this always comprised Madrid and, as the capital was likely to attract the homeless waifs, details which might assist in their identification were useful.[340]

RAZING HOUSES.

[Sidenote: _RAZING HOUSES_]

In the imperial jurisprudence, houses in which heretics held their conventicles were forfeited to the Church and this provision was adopted in the legislation of Alfonso X.[341] When prosecution was systematized in the thirteenth century, this was modified to tearing down all houses in which heretics were found, the site remaining forever accursed and unfit for human habitation. This was accepted by the Church and found its way into all the lands that admitted the Inquisition.[342] Aragon adopted it and when, about 1340, the Spiritual Franciscan Fray Bonanato was burnt, and his disciples were scattered, the building which they had occupied at Villafranca del Panadés, near Barcelona, was levelled to the ground.[343]

In the early days of the Spanish Inquisition, the strict enforcement of the rule would have led to great destruction and serious impairment of the value of confiscations. It seems therefore to have been reserved for buildings in which the heretics or apostates had been accustomed to assemble, and then the king, as the recipient of confiscations, decided the matter. A letter of Ferdinand, May 23, 1501, to Aliaga his receiver at Valencia, states that the inquisitors have asked him to decree the destruction of a house in which a synagogue had been found, to which he assents with the suggestive addition that the civic authorities must be ordered to offer no opposition. It turned out that Ferdinand had already given the house to Juan Pérez, the scrivener of sequestrations, whereupon he ordered Aliaga to have it appraised and to pay the value to Pérez.[344] He seems to have offered no opposition to Lucero's operations in Córdova, where a number of houses were torn down as having served as synagogues, and he ordered them rebuilt when the Congregacion Católica assembled at Valladolid, in 1509, pronounced the prosecutions fictitious.[345]

When the confiscations passed to the Inquisition, financial considerations apparently got the better of zeal, for when, in 1539, at Valencia, trials of a number of Judaizers revealed that a crucifix had been maltreated in a house used for their assemblies, and the tribunal desired authority for its destruction and the erection of a memorial chapel, the Suprema replied cautiously with a number of questions as to value, location and expense, as there were no funds for the purpose, and it ordered the auto de fe to be held, reserving decision as to the house.[346] The subsequent proceedings against the convicts, who revoked their confessions, show that the house was still standing four or five years later.

There was no such hesitation in the stimulated excitement following the discovery of Protestantism in high places in 1559. When, in the Valladolid auto de fe of May 21, the Cazalla family were nearly exterminated, the house of the mother, Leonor de Vibero, where the little group used to assemble, was razed, and a pillar was erected on the spot, with an inscription that can still be read--"During the pontificate of Paul IV and the reign of Philip II, the Holy Office of the Inquisition condemned this building of Pedro de Cazalla and Leonor de Vibero his wife to be torn down and levelled with the ground, since here the Lutherans assembled to hold meetings against our holy Catholic faith and the Church of Rome, May 21, 1559." Similarly in the great auto of Seville, September 24, 1559, the houses of Luis de Alerego and Isabel de Baena, which had served as Protestant conventicles, were destroyed.[347]

[Sidenote: _SPIRITUAL PENANCES_]

A thrifty disposition to restrain inconsiderate zeal for obliterating the receptacles of heresy was manifested by the Suprema, in 1565, when it forbade the razing of a house unless it belonged to the delinquents and thus would not have to be paid for.[348] This restriction, however, was not observed on an occasion which was perhaps the latest as well as the most conspicuous example of the practice. In the great Madrid auto of July 4, 1632, which was honored by the presence of Philip IV, among those who were burnt were Miguel Rodríguez and his wife Isabel Núñez Alvárez, in whose house not only were held Jewish meetings, but an image of Christ had been scourged and when it shed blood and thrice spoke to them they consumed it with fire. Of course it was doomed and on the day after the execution the Inquisition ordered it to be appraised in order that the owner might be compensated. He was the Licentiate Barquero, a highly respected jurist, who protested against its destruction until he received good security for its value. No time was lost. On the 6th the Inquisitor Cristóval de Ibarra, accompanied by the Admiral of Castile, the Duke of Medina de la Torres and other gentlemen, many familiars and a crowd of workmen, and preceded by a guard of halberdiers with banner and drums, marched to the spot, where a secretary read a proclamation of the Toledo tribunal to the effect that it ordered the demolition of the house where a holy Christ had been scourged and maltreated. Then the drums beat and the workmen assailed the structure so zealously that by nine o'clock that night there was not a vestige of it left, the populace eagerly aiding them in tearing the stones from the walls and carrying off the timbers. The site was not left, as the canons direct, to be a receptacle of filth. Money was raised and a Capuchin convent was erected, known as La Paciencia, in remembrance of the patience with which Christ had borne the indignities heaped upon him.[349]

SPIRITUAL PENANCES.

It might be presupposed that, in dealing with spiritual offences, and professing that its main object was the salvation of souls, the Inquisition would incline rather to spiritual exercises than to pecuniary and corporal punishments--that it would seek to instruct and elevate the spirit rather than to afflict the body. Religious persecution, however, has always preferred the harshness of coercion, and has held that the surest way to bring conviction to the soul was to torment the flesh. We need therefore not be surprised to see how insignificant a place spiritual penances held in the sentences of the Holy Office, and it would scarce be worth while to consider them except to note how little was the importance attributed to them by the tribunals.

Except in trifling cases, which merited no real punishment, such spiritual penances as we occasionally meet with are conjoined with material penalties. A man sentenced to imprisonment may perhaps be required to fast on Fridays for six months or a year, and to recite on those days a prescribed number of Ave Marias and Paternosters or other prayers. Pilgrimages to shrines as distant as St. Thomas of Canterbury or St. James of Compostela, so frequently prescribed in the medieval Inquisition, were unknown. It is true that the formula of sentence on the reconciled, condemning them to prison, requires them on Saturdays to make a pilgrimage to some designated shrine in the vicinity, where on their knees they must repeat with devotion five Paters, Ave Marias, Credos and Salve Reginas, but this was not often used in practice.[350] Clerical offenders, sentenced to reclusion in convents, frequently had spiritual exercises included among numerous other inflictions. While this moderation was the rule, occasionally of course the unlimited discretion of the tribunals made exceptions, as in a singularly ill-judged penance imposed at Toledo, in 1653, on Gerónima Mendes, a child ten years of age, convicted of Judaism, who was sentenced to a month's instruction in the faith and the daily recitation of the rosary for a year. Seeing that the rosary consists of seventeen Paternosters, sixteen Gloria Patris, a hundred and fifty-three Ave Marias and the Apostles' Creed, one can estimate the burden imposed on a child of such tender years and how little it would conduce to training the youthful penitent in a love for the faith.[351] Such an infliction however was exceptional, and it frequently happens, in the reports of the tribunals, after detailing the material portions of a sentence, that there is a mere general allusion to "some spiritual penances," which suggests how slender was the consideration bestowed on them. There is one type of better promise, not infrequent in the later period, such as a sentence pronounced at Toledo, in 1777, on Antonio Rubio and Diego González, condemned for heretical acts and blasphemy, the former to five years' labor in the arsenal of Cartagena and the latter to three years in the presidio of Ceuta, both of whom were required, before leaving prison, to perform fifteen days of spiritual exercises under a director who would instruct them.[352]

The hearing of mass as a penitent, which was a very frequent infliction, cannot be classed as a spiritual penance--it was a simple humiliation and was so intended, especially when performed publicly in church.

UNUSUAL PENALTIES.

[Sidenote: _UNUSUAL PENALTIES_]

A few instances will indicate how the tribunals sometimes used their wide discretion in adapting to any given case what was deemed an appropriate penalty. It is true that when Valencia, in 1539, made Fray Torres, a priest, appear in a public auto de fe, with a bridle in his mouth and a pannier of straw on his back, the Suprema rebuked it and forbade such eccentricities for the future.[353] So when, in 1568, Inquisitor Morales reported that, during his visit to San Sebastian, he had condemned certain offenders to have sermons preached at their expense, the Suprema mildly remarked that this was a novelty.[354] In an auto de fe at Llerena, in 1579, there was a negress named Catalina, the slave of a man of Zafra. It was doubtless through consideration of his interests that she was spared the corporal chastisement visited on her accomplices, but there was a distinct invasion of his rights in a prohibition to him to sell her without licence from the inquisitors.[355] In 1607, at Valencia, a single witness accused María Tubarri, a Morisca midwife, of using Moorish ceremonies in baptising infants, and of circumcising the males; the proof, against her denial, was not thought sufficient to justify torture and she was required only to abjure _de levi_, but she was deprived for life of practising her profession.[356] There was wisdom, if a trifle arbitrary, in a sentence at Toledo, in 1685, on Lucas Morales for blasphemy, for it included, among other penalties, a prohibition to gamble--a sensible provision against relapse, for gaming was recognized as the most prolific source of blasphemy.[357]

There was the same latitude in vindictive as in deterrent punishments. At Valladolid, from 1635 to 1637, there were several Judaizers convicted of maltreating an image of Christ. The consultors voted for relaxation, but the Suprema approved the decision of the inquisitors that they should have the right arm nailed to a stake in the form of a cross, while their sentences were being read in an auto de fe.[358] Less symbolical and still more original was a spectacle devised for the Mexican auto of December 7, 1664, where one of the penitents was stripped to the waist, while two Indians smeared him with honey and covered him with feathers, in which guise he was made to stand in the sun for four hours on the staging.[359] Even recruiting for the army was not beneath the dignity of the tribunal as when, in 1650, Toledo condemned Andrés de Herrera Calderon, for blasphemy, to serve for four years in the campaigns against Portugal and Catalonia, where doubtless he enriched his vocabulary of expletives.[360]

There evidently was no defined limit to the power of suiting the penalty to the inquisitorial conception of the offence, and the tribunals made ample use of their prerogative.