CHAPTER X

THE JURISPRUDENCE OF THE HOLY OFFICE--THE FIRST “INSTRUCTIONS” OF TORQUEMADA

The first manual for the use of inquisitors was probably written somewhere about 1320. It was the work of the Dominican friar Bernard Gui--“Practica Inquisitionis Heretice Pravitatis--Bernardo Guidonis, Ordinis Fratrum Predicatorum”--and it summarised the experience gathered during a hundred years by the inquisitors of Southern France.

It is divided into five parts. The first three are directly concerned with procedure, and the formulæ are given for every occasion--citation, arrest, pardon, commutation, and sentence--with the fullest particulars for the guidance of inquisitors. The fourth part treats of the powers vested in the tribunal of the Inquisition, and cites the authorities--_i.e._ the decrees of pontiffs and of councils. The fifth part surveys and defines the various heretical sects of Gui’s day, gives particulars of the doctrines, rites, and ceremonies by which each one may be known, and lays down methods by which heretical guile may be circumvented in examination.

The work was used by French inquisitors in general and those of Toulouse in particular, and it is more than probable that it inspired Nicolaus Eymeric to compile his voluminous “Directorium Inquisitorum” towards the middle of the fourteenth century.

Nicolaus Eymeric was Grand Inquisitor of Aragon, and he prepared his directory, or manual of procedure, as a guide for his confrères in the business of prosecuting those guilty of heretical pravity.

The work circulated freely in its manuscript form, and it was one of the first to be printed in Barcelona upon the introduction of the printing-press, so that in Torquemada’s day copies were widely diffused, and were in the hands of all inquisitors in the world.

The bulk of the “Directorium” is little more than a compilation. It is divided into three parts. The first lays down the chief Articles of the Christian Faith; the second is a collection of the decretals, bulls, and briefs of the popes upon the subject of heretics and heresies, and the decision of the various councils held to determine matters connected with heretics and their abettors, sorcerers, excommunicates, Jews and infidels; the third part, which is Eymeric’s own contribution to the subject, deals with the manner in which trials should be conducted, and gives a detailed list of the offences that come under the jurisdiction of the Holy Office.

It may be well before proceeding further to give a résumé of the grounds upon which the Inquisition instituted proceedings, as set forth in the “Directorium.”

* * * * *

All heretics in general are subject to the animadversions of the Holy Office; but there are, in addition, certain offenders who, whilst not exactly guilty of heresy, nevertheless render themselves justiciable by the Inquisition. These are:

BLASPHEMERS who in blaspheming say that which is contrary to the Christian Faith. Thus, he who says, “The season is so bad that God Himself could not give us good weather,” sins upon a matter of faith.

SORCERERS AND DIVINERS, when in their sorceries they perform that which is in the nature of heresy--such as re-baptizing infants, burning incense to a skull, etc. But if they confine their sorceries to foretelling the future by chiromancy or palmistry, by drawing the short straw, or consulting the astrolabe, they are guilty of simple sorcery, and it is for the secular courts to prosecute them.

Amongst the latter are to be placed those who administer love-philtres to women.

* * * * *

DEVIL-WORSHIPPERS: Those who invoke devils. These are to be divided into three classes:

(_a_) Those who worship the devil, sacrificing to him, prostrating themselves, singing prayers and fasting, burning incense or lighting candles in his honour.

(_b_) Those who confine themselves to offering a _Dulie_ or _Hyperdulie_ cult to Satan, introducing the names of devils into the litanies.

(_c_) Those who invoke the devil by tracing magic figures, placing an infant in a circle, using a sword, a bed, or a mirror, etc.

In general it is easy to recognize those who have dealings with devils on account of their ferocious aspect and terrible air.

The invocation in any of the three manners cited is always a heresy. But if the devil should only be asked to do things that are of his office--such as to tempt a woman to the sin of luxury--provided that this is done without adoration or prayer, but in terms of command, there are authors who hold that in such cases the person so proceeding is not guilty of heresy.

Amongst those who invoke devils are astrologers and alchymists, who when they do not succeed in making the discoveries they seek never fail to have recourse to the devil, sacrificing to him and invoking him expressly or tacitly.

JEWS AND INFIDELS: The first when they sin against their religion in any of the articles of faith that are the same with them as with us--_i.e._ that are common alike to Jew and to Christian--or when they attack dogmas that are, similarly, common to both creeds.

As for infidels, the Church and the Pope, and consequently the Inquisition, may punish them when they sin against the laws of nature--the only laws they know.

Jews and infidels who attempt to pervert Christians are also regarded as abettors or _fautores_.

In spite of the prohibition to succour a heretic, a man would not be regarded as an abettor who gave food to a heretic dying of hunger, since it is possible that if spared the latter might yet come to be converted.

EXCOMMUNICATES who remain in excommunication during a whole year, by which are to be understood not merely those who are excommunicate as heretics, or abettors of heretics, but excommunicate upon any grounds whatsoever. In fact, the indifference to excommunication renders them suspect of heresy.

APOSTATES.--Apostate Christians who become Jews or Mohammedans (these religions not being heresies), even though they should have apostatized through fear of death. The fear of torture or death not being one that can touch a person who is firm in the Faith, no apostasy is to be excused upon such grounds.[84]

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With the “Directorium” of Eymeric before him, Torquemada set to work to draw up the first articles of his famous code. Additions were to be made to it later, as the need for such additions came to be shown by experience; but no subsequent addition was of the importance of these original twenty-eight articles. They may be said to have given the jurisprudence of the Spanish Inquisition a settled form, which continued practically unchanged for over three hundred years after Torquemada’s death.

A survey of these articles and of the passages from Eymeric that have a bearing upon them, together with some of the annotations of the scholiast Francesco Pegna,[85] should serve to convey some notion of the jurisprudence of the Holy Office and of the extraordinary spirit that inspired and governed it--a spirit at once crafty and stupid, subtle and obvious, saintly and diabolical, consistent in nothing--not even in cruelty, for in its warped and dreadful way it accounted itself merciful, and not only represented but believed that its aims were charitable. It practised its abominations of cruelty out of love for the human race, to save the human race from eternal damnation; and whilst it wept on the one hand over the wretched heretic it flung to the flames, it exulted on the other in the thought that by burning one who was smitten with the pestilence of heresy it saved perhaps a hundred from infection and from purging that infection in an eternity of hell-fire.

They are rash who see hypocrisy in the priestly code that is to follow. Hypocrites there may have been, there must have been, and many; such a system was a very hotbed of hypocrisy. Yet the system itself was not hypocritical. It was sincere, dreadfully, tragically, ardently sincere, with the most hopeless, intolerable, and stupid of all sincerity--the sincerity of fanaticism, which destroys all sense of proportion, and distorts man’s intellectual vision until with an easy conscience he makes of guile and craft and falsehood the principles that shall enable him to do what he conceives to be his duty by his fellow-man.

The doctrine of exclusive salvation was the source of all this evil. But that doctrine was firmly and sincerely held. Torquemada or any other inquisitor might have uttered the words which an inspired poet has caused to fall from the lips of Philip II.:

“The blood and sweat of heretics at the stake Is God’s best dew upon the barren field.”[86]

And he would have uttered them with a calm and firm conviction, assured that he did no more than proclaim an obvious truth which might serve him as a guide to do his duty by man and God. For all that he did he could find a commandment in the Scriptures. Was burning the proper death for heretics? He answered the question out of the very mouth of Christ, as you shall see. Should a heretic’s property be confiscated? Eymeric and Paramo point to the expulsion of Adam and Eve from Eden as a consequence of their disobedience--the first of all heresies--and ask you what was that but confiscation. Is it proper to impose a garment of shame upon those convicted of lesser heresies, or upon penitents who are reconciled? Paramo will answer you that Adam and Eve wore skins after their fall, and implies that this is a proper precedent for the infamous _sanbenito_.

And so on: Moses, David, John the Baptist, and the gentle Saviour Himself are made to afford reason for this course and for that, as the need arises, and each reason is more grotesque than the other, until you are stunned by the blows of these clumsy arguments. You cease to wonder that the translation of the Bible was forbidden, that its study was inhibited. If those who were learned in theology could interpret it so extravagantly, what might not the unlearned achieve?

But let us pass on to the consideration of Torquemada’s code.

ARTICLE I

Whenever inquisitors are appointed to a diocese, city, village, or other place which hitherto has had no inquisitors, they shall--after having presented the warrants by which they are empowered to the prelate of the principal church and to the governor of the district--summon by proclamation all the people and convoke the clergy. They shall appoint a Sunday or holiday upon which all are to assemble in the cathedral or principal church to hear a sermon of the Faith.

They shall contrive that this sermon is delivered by a good preacher or by one of the actual inquisitors, as they deem best. Its aim shall be to expound the capacity in which they are there, their powers, and their intentions.

COPILACION DE LAS INSTRVCIONES DEL Officio de la sancta Inquisicion, hechas por el muy Reuerendo Señor Fray Thomas de Torquemada, Príor del Monasterio de sancta Cruz de Segouia, primero Inquisidor general de los Reynos y Señorios de España.

E POR LOS OTROS REVERENDISSIMOS SENO-_res Inquisidores generales que despues succedieron, cerca de la orden que se ha de tener en el exercicio del Sancto Officio. Donde van puestas successiuamente por su parte todas las Instructiones que tocan a los Inquisidores. E a otra parte, las que tocan a cada vno delos Officiales y Ministros del sancto Officio: las quales se copilaron en la manera que dicha es, por mandado del Illustrissimo y Reuerendissimo señor don Alonso Manrrique, Cardenal de los doze Apostoles, Arçobispo de Seuilla Inquisidor General de España.:._

ARTICLE VIII

Should any person guilty of the said crime of heresy fail to present himself within the appointed period of grace, but come forward voluntarily after its expiry and make his confession in due form before having been arrested or cited by the inquisitors, or before the inquisitors shall have received testimony against him, such person shall be received to abjuration and reconciliation in the same manner as those who presented themselves during the term of the said edict, and he shall be submitted to penances at the discretion of the inquisitors. But such penances shall not be pecuniary because his property is confiscate [_so that his admission to abjuration is not quite upon the same terms_].

But if at the time of his coming to confess and seek reconciliation, the inquisitors should already be informed by witnesses of his heresy or apostasy, or should already have cited him to appear before the Court to answer the charge, in such a case the inquisitor shall receive the penitent to reconciliation--if he entirely confesses his own errors and what he knows of the errors of others--and shall impose upon him heavier penances than upon the former, even up to perpetual imprisonment should the case demand it.

This is merely one of those quibbles that permeate this jurisprudence. The article in this last respect is so framed as to make it appear that under such circumstances the inquisitors would be acting more mercifully than against an accused heretic; but the latitude of punishment is such that they need display no such mercy--perpetual imprisonment being the punishment prescribed for any heretic (who is not “relapsed”) seeking reconciliation.

But no persons who shall come to confess after expiry of the period of grace shall be subjected to pecuniary penances--unless their Highnesses should mercifully condescend to remit all or portion of the confiscation incurred by those so reconciled.

This last clause seems rather in the nature of a provision against any merciful weakness on the Sovereigns’ part.

ARTICLE IX

If any children of heretics having fallen into the sin of heresy by indoctrination of their parents, and being under twenty years of age, should come to seek reconciliation and to confess the errors they know of themselves, their parents and any other persons, even though they should come after the expiry of the term of grace, the inquisitors shall receive them kindly, imposing penances lighter than upon others in like case, and they shall contrive that these children be tutored in the Faith and the Sacraments of Holy Mother Church, as they are to be excused upon the grounds of age and education.

They are not, however, to be excused to the extent of enjoying any of their parents’ property. That is confiscate by virtue of the parents’ heresy; and by virtue of that same heresy on the part of their parents these children and their own children must remain under the ban of infamy, inhibited from wearing gold or silver, etc., and from holding any office under the crown or any ecclesiastical benefice. It seems almost ironical to talk of imposing light penances upon wretches who are automatically subject to such penalties as these. But by that “light penance” Llorente conceives would be meant their wearing a _sanbenito_ for a couple of years, appearing in it at Mass and being paraded in it in processions.

ARTICLE X

Persons guilty of heresy and apostasy, by the fact of their having fallen into these sins, incur the loss of all their property and the administration of it, counting from the day when first they offended, and their said property is confiscate to their Highnesses’ treasury. But in the matter of ecclesiastical pains in the case of those reconciled, the inquisitors in pronouncing upon them shall declare them to be heretics, apostates, or observers of the rites and ceremonies of the Jews; but that since they seek conversion with a pure heart and true faith, and they are ready to bear the penances that may be imposed, they shall be absolved and reconciled to Holy Mother Church.

The object of this article is really to make the act of confiscation retrospective where necessary, so as to circumvent any who should attempt, by alienation of his property, to avoid its confiscation. Since the confiscation was incurred upon the date of the first offence against the Faith, the inquisitors were to trace any property that might subsequently have been disposed of by the delinquent, and even should it have gone to the paying of debts or the endowment of a daughter married to one who was an old and “clean” Christian, the Holy Office must seize and confiscate it to the Royal Treasury.

ARTICLE XI

If any heretic or apostate who shall have been arrested upon information laid against him should say that he desires reconciliation and confess all his faults, what Jewish ceremonies he may have observed, and what is known to him of the faults of others, entirely and without reservations, the inquisitors shall admit him to reconciliation subject to perpetual imprisonment as by law prescribed. But should the inquisitors, in conjunction with the diocesan ordinary, in view of the contrition of the offender and the quality of his confession, think well to commute this penance to another lighter one, they shall have faculty so to do.

It seems that this should take place chiefly if the heretic at the first sitting of the court, or upon his first appearance before it, without awaiting the declaration of his offences, should announce his desire to confess and abjure; and such confession should be made before there is any publication of witnesses or of the matters urged by them against him.

ARTICLE XII

Should the prosecution of an accused have been conducted to the point of the publication of witnesses and their depositions, but should he then confess his faults and beg to be admitted to reconciliation, desiring formally to abjure his errors, the inquisitors shall receive him to the said reconciliation subject to perpetual imprisonment, to which they shall sentence him--save if in view of his contrition and other attendant circumstances the inquisitors should have cause to consider that the reconciliation of such a heretic is simulated; in such case they must declare him an impenitent heretic and abandon him to the secular arm: all of which is left to the conscience of the inquisitors.

“Abandonment to the secular arm” is, as shall presently be considered, the ecclesiastical equivalent to a sentence of death by fire.

The term “publication of witnesses” must not be accepted literally. What it really meant will become clear upon reading Article XVI, which was specially framed by Torquemada to modify and limit this time-honoured custom of civil and ecclesiastical courts.

ARTICLE XIII

If any of those who are reconciled during the period of grace or after its expiry should fail to confess all their own sins and all that they know of the sins of others, especially in grave cases, and should such omission arise not from forgetfulness but from malice, as may afterwards be proved by witnesses, since it is clear that the said reconciled have perjured themselves, and it must be presumed that their reconciliation was simulated, although they may have been absolved let them be proceeded against as impenitent heretics as soon as the said fiction and perjury are discovered.

Similarly if any person reconciled at the time of the edict of grace or afterwards, shall boast himself in public in such a manner that this can be proved, saying that he did not commit the sins to which he confessed, he must be deemed impenitent and a simulated convert, and the inquisitors shall proceed against him as if he were not reconciled.

ARTICLE XIV

If any, upon being denounced and convicted of the sin of heresy, shall deny and persist in his denial until sentence is passed, and the said crime shall have been proved against him, although the accused should confess the Catholic Faith and assert that he has always been and is a Christian, the inquisitors must declare him a heretic and so sentence him, for juridically the crime is proved, and by refusing to confess his error the convict does not permit the Church to absolve him and use him mercifully.

But in such cases the inquisitors should proceed with great care in their examination of the witnesses, closely cross-questioning them, gathering information on the score of their characters, and ascertaining whether there exist motives why they should depone out of hatred or ill-will towards the prisoner.

ARTICLE XV

If the said crime of heresy or apostasy is half-proven (_semiplenamente provado_) the inquisitors may deliberate upon putting the accused to the torture, and if under torture he should confess his sin, he must ratify his confession on one of the following three days. If he does so ratify he shall be punished as convicted of heresy; if he does not ratify, but revokes his confession as the crime is neither fully proved nor yet disproved, the inquisitors must order, on account of the infamy and presumption of guilt of the accused, that he should publicly abjure his error; or the inquisitors may repeat the torture.

There is nothing in this article that may be considered as a departure from or an enlargement upon any of the rules laid down by Eymeric in his “Directorium,” as we shall see when we come to deal with this gruesome subject of torture.

It is urged by apologists that, when all is said, the torture to which the inquisitors had recourse, and, similarly, the punishment of death by fire, were not peculiarly ecclesiastical institutions; that they were the ordinary civil methods of dealing with offenders, and that in adopting them the Church had simply conformed, as was her custom, with that which was by law prescribed.

It is quite true that originally these were the methods by which the secular tribunals proceeded against those who sinned against the Faith. But it must also be borne in mind that if the civil authorities so proceeded they implicitly obeyed the bull “ad extirpanda” of Sixtus IV, which imposed this duty upon them under pain of excommunication.

Owing to the inconvenience that attended this procedure in so far as torture and questions upon matters of Faith were concerned, it was later accounted desirable that the inquisitors themselves should take charge of it. They were enjoined, however, to see to it that there should be no shedding of blood or loss of life, since it was against the Christian maxims that a priest should be guilty of such things. So that when by misadventure it happened that blood was shed or a patient died under the hands of the torturers, the inquisitor conducting the examination became guilty of an irregularity. For this he must seek absolution at the hands of a brother cleric; and the inquisitors were informed--to make matters easier for them and to spare them anxieties in this matter--that they had the right to absolve one another under such circumstances.

But even if we fully admit that the use of torture--and similarly of fire--had been secular institutions of which the Church had simply availed herself as the only methods that commended themselves in such an age, it must still be held against the inquisitors that these methods were by no means tempered or softened in their priestly hands.

ARTICLE XVI

It being held that the publication of the names of witnesses who depone upon the crime of heresy might result in great harm and danger to the persons and property of the said witnesses--since it is known that many have been wounded and killed by heretics--it is resolved that the accused shall not be supplied with a copy of the depositions against him, but that he shall be informed of what is declared in them, whilst such circumstances as might lead to the identification of the deponents shall be withheld.

But the inquisitors must, when proof has been obtained from the examination of the witnesses, publish these depositions, withholding always the names and such circumstances as might enable the accused to learn the identity of the witnesses; and the inquisitors may give the accused a copy of the publication in such form [_i.e._ truncated] if he requires it.

If the accused should demand the services of an advocate, he shall be supplied. The advocate must make formal oath that he will faithfully assist the accused, but that if at any stage of the pleadings he shall realize that justice is not on his side, he shall at once cease to assist the delinquent and shall inform the inquisitors of the circumstance.

The accused shall pay out of his own property, if he have any, the services of the advocate; if he have no property, then the advocate shall be paid out of other confiscations, such being the pleasure of their Highnesses.

It is extremely doubtful if a more flagrant departure from all the laws of equity would be possible than that which is embodied in Torquemada’s enactment on the subject of witnesses.

The notion of an accused hearing nothing of what is deposed against him, of his not even being informed of the full extent of such depositions nor yet confronted with his accusers, is beyond a doubt one of the most monstrously unjust features of this tribunal. And by taking the fullest advantage of that enactment and reducing the proceedings to a secrecy such as was never known in any court, the inquisitors were able to inspire a terror which was even greater than that occasioned by the fires they fed with human fuel at their frequent Autos.

Torquemada based this enactment upon the caution laid down by Eymeric on the score of divulging the names of witnesses. But Eymeric went no further than to say that these names should be suppressed where a possibility of danger to the delators lay in their being divulged. The accused, however, might have the full record of the proceedings read to him, and he might infer for himself who were his accusers. There was no question in Eymeric of any truncations.

Torquemada’s aim is perfectly clear. It was not based, as is said in the article, upon concern for any danger that the delators might incur. For, after all, it shall be made plain before we conclude the survey of inquisitorial jurisprudence, that the wounding or even the death of those witnesses would be regarded (professedly, at least) as an enviable thing; they would be suffering for the Faith, and thus qualifying for the immortal crown of martyrdom. Rather was Torquemada’s object to remove all fear that might trammel delators and stifle delations. The delator must be protected solely to the end that other delators might come forward with confidence to inform against secret heretics and apostates, so that the activities of the Holy Office should suffer no curtailment.

Trasmiera, a later inquisitor, in the course of an eulogium of secrecy, speaks of it as “the pole upon which the government of the Inquisition is balanced, calling for the veneration of the faithful; it facilitates the delations of witnesses, and it is the support and foundation of this tribunal; once deprived of it, the architecture of the edifice must undoubtedly give way.”[89]

The clause relating to advocates is founded upon the ancient ecclesiastical law which forbade an advocate to plead for heretics. His being enlisted under the present clause would clearly serve to increase the peril of the accused.

ARTICLE XVII

The inquisitors shall, themselves, examine the witnesses, and not leave such examinations to their notaries or others, unless a witness should be ill or unable to come before the inquisitor and the inquisitor similarly unable to go to the witness, in which case he may send the ordinary ecclesiastical judge of the district with another upright person and a notary to take the depositions.

ARTICLE XVIII

When any person is put to the torture the inquisitors and the ordinary should be present--or, at least, some of them. But when this is for any reason impossible, then the person entrusted to question should be a learned and faithful man (_hombre entendido y fiel_).

ARTICLE XIX

The absent accused shall be cited by public edict affixed to the door of the church of the district to which he belongs, and after thirty days’ grace the inquisitors may proceed to try him as contumaciously absent. If there is sufficient evidence of his guilt, sentence may be passed upon him. Or, if evidence is insufficient, he may be branded a suspect and commanded--as is due of suspects--to present himself for canonical purgation. Should he fail to do so within the time appointed, his guilt must be presumed.

Proceedings against the absent may be taken in any of the following three ways:

(1) In accordance with the chapter “Cum contumatia de hereticis,” citing the accused to appear and defend himself upon certain matters concerning the Faith and certain sins of heresy, under pain of excommunication; if he does not respond, he shall be denounced as a rebel, and if he persists in this rebellion for one year he shall be declared a formal heretic. This is the safest and least rigorous course to adopt.

(2) Should it seem to the inquisitors that a crime against any absent can be established, let him be cited by edict to come and prove his innocence within thirty days--or a longer period may be conceded if such is necessary to permit him to return from wherever he may be known to be. And he shall be cited at every stage of the proceedings until the passing of sentence, when, should he still be absent, let him be accused of rebellion, and should the crime be proved he may be condemned in his absence without further delay.

(3) If in the course of inquisitorial proceedings there is presumption of heresy against an absent person (although the crime is not clearly proved) the inquisitors may summon him by edict commanding him to appear within a given time to clear himself canonically of the said error, on the understanding that should he fail to appear, or, appearing, should fail to clear himself, he shall be deemed convicted and the inquisitors shall proceed to act as by law prescribed.

The inquisitors, being learned and discriminating, will select the course that seems most certain and is most practical under the particular circumstances of the case.

Any person condemned as contumacious became an outlaw, whom it was lawful for any man to kill.

CANONICAL PURGATION, which is mentioned in this article, differs considerably from ABJURATION, and the difference must be indicated.

It is applicable only to those who are accused by the public voice--_i.e._ who have acquired the “reputation” of heresy--without yet having been detected in any act or speech that might cause them to be suspected of heresy in any of the defined degrees of such suspicion.

It almost amounts to a distinction without a difference, and is an excellent instance of the almost laboured equity in which this tribunal indulged in matters of detail whilst flagrantly outraging equity in the main issues.

For Canonical Purgation, says Eymeric,[90] the accused must find a certain number of sureties or _compurgatores_, the number required being governed by the gravity of the (alleged) offence. They must be persons of integrity and of the same station in life as the accused, with whom they must have been acquainted for some years. The accused shall make oath upon the Gospels that he has never held or taught the heresies stated, and the _compurgatores_ shall swear to their belief that this is the truth. This Purgation must be made in all cities where the accused has been defamed.

The accused shall be given a certain time in which to find his _compurgatores_, and should he fail to find the number required he shall at once be convicted and condemned as a heretic.

And Pegna adds, in his commentary upon this, that any who shall be found guilty of heresy after having once been in this position is to be regarded as a “relapso” and delivered to the secular arm. For this reason he enjoins that Canonical Purgation should not lightly be ordered, as it is so largely dependent upon the will of third parties.

Eymeric adds, further, that sometimes Canonical Purgation may be ordered to those who are defamed by the public voice but who are not in the hands of the inquisitors. Should they refuse to surrender, the inquisitors shall proceed to excommunicate them, and if they persist in their excommunication for one year they shall be deemed heretics, and subject to the penalties entailed by such a sentence.

ARTICLE XX

If any writings or trials should bring to light the heresy of a person deceased, let proceedings be taken against him--even though forty years shall have elapsed since the offence--let the fiscal accuse him before the tribunal, and if he should be found guilty the body must be exhumed.

His children or heirs may appear to defend him; but should they fail to appear, or, appearing, fail to establish his innocence, sentence shall be passed upon him and his property confiscated.

It will, of course, be obvious that since no good or useful purpose could be served by instituting proceedings against the dead, nothing but cupidity can have inspired so barbarous a decree as this. The avowed object of the Inquisition--and very loudly and insistently avowed--was the uprooting of heresies to prevent their spread, and the inquisitors maintained that it was a painful necessity thrust upon them by their duty to God to destroy those who persisted in heresy, lest these, by their teaching and example, should contaminate and imperil the souls of others. Thus the Inquisition justified itself, and removed all doubt as to the purity of its motives.

But how should this justification apply to the trial of the dead--even though they should have been dead for over forty years?

The provision, however, was not Torquemada’s own. He followed in the footsteps of earlier inquisitors. He found his precedent in the 120th question propounded by Eymeric--“Confiscatio bonorum hæretici fieri potest post ejus mortem.” In this the author of the “Directorium” lays it down that although in civil law legal action against a criminal ceases with his death, such is not to be the case where heresy is concerned, on account of the enormity of the crime. (It may seem that, had he been quite honest, he would have said, “on account of the profits that may accrue from the prosecution.”)

Heretics, he pursues, may be proceeded against after their death, and, if convicted, their property may be confiscated--and this within forty years of their decease--depriving the heirs of all enjoyment of it, even though the third generation should be in possession.

All that Torquemada did was to extend the term of procedure beyond the forty years to which Eymeric had limited it.

And to the foregoing Eymeric adds that, should the heirs at any time have acquired knowledge that the deceased was a heretic, they shall be censured for having acted in bad faith and kept the matter secret! By this he actually puts it upon men to come forward voluntarily and accuse their dead fathers or grandfathers of heretical practices, to the end that they themselves may be rendered destitute and infamous to the extent of being incapacitated from holding any public office or following any honourable profession--and this though they themselves should be the most faithful of Catholics, untouched by the faintest breath of suspicion!

It is beyond words a monstrous and inequitable enactment. Yet, like all else, they can justify it. If there is one thing in which the inquisitors were truly admirable, it is in the deftness with which they could justify and reconcile with their conscience the most inhuman practice. They would answer questions as to the lawfulness of this proceeding by urging that they did it with the greatest reluctance, but that their duty demanded it to the end that the living should beware how they failed in fidelity to the Faith, lest punishment should overtake them in their descendants after they themselves had passed beyond the reach of human justice. Thus would they represent the act as salutary and to the advantage of the Faith. And since there is at least a scintilla of truth in this, who shall say that they did not tranquillize their consciences and delude themselves that the confiscations were a mere incident which nowise swayed their judgment?

That proceedings against persons deceased were by no means rare is shown by the frequent records of corpses burnt--one of the purposes for which they were exhumed; the other being that they must cease to defile consecrated ground.

ARTICLE XXI

The Sovereigns desiring that inquisition be made alike in the domains of the nobles as in the lands under the Crown, inquisitors shall proceed to effect these, and shall require the lords of such domains to make oath to comply with all that the law ordains, and to lend all assistance to the inquisitors. Should they decline to do so, they shall be proceeded against as by law established.

ARTICLE XXII

Should heretics who are delivered to the secular arm leave children who are minors and unmarried, the inquisitors shall provide and ordain that they be cared for and reared by some persons who will instruct them in our Holy Faith. The inquisitors shall prepare a memorial of such orphans and the circumstances of each, to the end that of the royal bounty alms may be provided to the extent necessary, this being the wish of the Sovereigns when the children are good Christians, especially in the case of girls, who should receive a dower sufficient to enable them to marry or enter a convent.

Llorente tells us that although he went through very many records of old proceedings of the Inquisition, in no single instance did he discover a record of any such provision in favour of the child of a condemned heretic.[91]

Harsh as were the decrees of the Inquisition in all things, in nothing were they so harsh as in the enactments concerning the children of heretics. However innocent themselves of the heresy for which their parents or grandparents might have suffered, not only must they go destitute, but further they must be prevented from ever extricating themselves appreciably from that condition, being inhibited--to the second generation--from holding any office under the Crown, or any ecclesiastical benefice, and from following any honourable or lucrative profession. And, as if that were not in itself sufficient, they were further condemned to wear the outward signs of infamy, to go dressed in serge, without weapons or ornaments, and never ride on horseback, under pain of worse befalling them. One of the inevitable results of this barbarous decree was the extinction of many good Spanish families of Jewish blood in the last decade of the fifteenth century.

This the inquisitors understood to be the literal application to practical life of the gentle and merciful precepts of the sweet Christ in Whose name they acted.

Eymeric and his commentator Pegna make clear, between them, the inquisitorial point of view. The author of the “Directorium” tells us that commiseration for the children of heretics who are reduced to mendicity must not be allowed to soften this severity, since by all laws, human and divine, it is prescribed that the children must suffer for the sins of the fathers.[92]

The scholiast expounds at length the justice of this measure. He says that there have been authors, such as Hostiensis, who pretend that it lacks the equity of the ancient laws, which admitted Catholic children to inheritance. But he assures us that they are wrong in holding such views, that there is no injustice in the provision, and that it is salutary, since the fear of it is calculated to influence parents and to turn them--out of love for their offspring--from the great crime of heresy.

To minds less dulled by bigotry it must have been clear that by this, as, for that matter, by many other of their decrees, all that was achieved was to put a premium upon hypocrisy.

Another consideration that escaped their notice--being, as they were, capable of perceiving one thing only at a time--was that if this precious measure was prescribed by all laws, human and divine, it should have been unavoidable. Yet they themselves provided the means of avoiding it--as we know--for the child vile enough to lay information of his parents’ heresy. By what laws, human or divine, did they dare to encourage such an infamy? By no law but their own--a law whose chief aim, it is obvious at every turn, was to swell the number of convictions.

What opinion was held of children who informed against their parents to avert the awful fate that awaited them should their parents’ heresy be discovered by others, is apparent in the case of the daughter of Diego de Susan--who, very possibly, was actuated by just such motives.

ARTICLE XXIII

Should any heretic or apostate who has been reconciled within the term of grace be relieved by their Highnesses from the punishment of confiscation of his property, it is to be understood that such relief applies only to that property which by their own sin was lost to them. It does not extend to property which the person reconciled shall have the right to inherit from another who shall have suffered confiscation. This to the end that a person so pardoned shall not be in better case than a pure Catholic heir.

ARTICLE XXIV

As the King and Queen in their clemency have ordained that the Christian slaves of heretics shall be freed, and even when the heretic is reconciled and immune from confiscation, this immunity shall not extend to his slaves; these shall be manumitted in any case, to the greater honour and glory of our Holy Faith.

ARTICLE XXV

Inquisitors and assessors and other officers of the Inquisition, such as fiscal advocates, constables, notaries, and ushers, must excuse themselves from receiving gifts from any who may have or may come to have affairs with the Inquisition, or from others on their behalf; and the Father Prior of Holy Cross orders them not to receive any such gifts under pain of excommunication, of being deprived of office under the Inquisition and compelled to make restitution and repay to twice the value of what they may have received.

Eymeric’s “Directorium” permitted the reception of gifts by inquisitors, provided that these gifts were not too considerable, but he enjoined inquisitors not to show too much avidity--not, it would seem, on account of the sin that lurks in avidity, but so as not to give scandal to the laity.[93]

ARTICLE XXVI

Inquisitors shall endeavour to work harmoniously together; the honour of the office they hold demands this, and inconveniences might result from discords amongst them. Should any inquisitor be acting in the place of the diocesan ordinary, let him not on that account presume that he enjoys pre-eminence over his colleagues. If any difference should arise between inquisitors and they be unable themselves to adjust it, let them keep the matter secret until they can lay it before the Prior of Holy Cross, who, as their superior, will decide it as he considers best.

ARTICLE XXVII

Inquisitors shall endeavour to contrive that their officers treat one another well and dwell in harmony and honourably. Should any officer commit an excess, let them punish him charitably, and should they be unable to cause an officer to fulfil his duty, let them advise the Prior of Holy Cross thereof, and he will at once deprive such a one of his office and make such an appointment as may seem best for the service of Our Lord and their Highnesses.

ARTICLE XXVIII

Should any matter arise for which provision has not been made by this code, the inquisitors shall proceed as by law prescribed, it being left to them to dispose as their consciences show them to be best for the service of God and their Highnesses.

To these twenty-eight articles Torquemada was to make further additions--in January of the following year, in October of 1488 and in May of 1498. We shall indicate to them, but for the moment it is sufficient to say that--saving some of those of 1498--they are of secondary importance, being mainly in the nature of corollaries upon those we have dealt with, and chiefly concerned with the internal governance of the Inquisition rather than with its relations to the outside world.