III. ARREST AND SEQUESTRATION…

III. ARREST AND SEQUESTRATION

Although the power to arrest arbitrarily was inherent in the inquisitorial functions, and all secular officials were bound to lend assistance if necessary, still, in practice, it required justification by sufficient evidence in hand. This was obtained in various ways. The inquisitor might learn that public rumor designated a person as guilty of heretical acts and might cause secret inquest to be made in verification. In the prevalent forms of heresy, such as that of Jewish and Moorish apostates, the most frequent source of incrimination was the confessions of accomplices on trial or under Edicts of Grace. In other matters, the initiative came largely from denunciations, which were stimulated and favored in every way, especially by the secrecy which relieved the informer from responsibility.

No duty was more strenuously inculcated on the people than that of denouncing any utterance or act partaking of calidad de oficio--that is, which came within the cognizance of the Holy Office. Divine law required this under penalty of mortal sin, and ecclesiastical law under that of excommunication.[1412] From this no ties of blood furnished release. It is true that, under the imperial jurisprudence, accusations of near relatives were forbidden; a mother could not accuse a son except of offences against herself and even a man brought up in another's house could not accuse his benefactor.[1413] But Simancas, while highly approving of this, says that there are two cases in which a son must accuse his father--one, when under examination by the Inquisition, the other, when the father is a persistent heretic and, as the obligation of the son to the father is of the highest, this includes all other cases.[1414] The Instructions of 1484 offer mitigation of punishment to minor children who spontaneously denounce their parents, and Alfonso de Castro relates that he denied absolution to a young man, perfectly orthodox in faith, who in confession, in response to interrogatories, admitted that his father was a Judaizer, but refused to denounce him in view of the consequences to himself of poverty and infamy.[1415]

The annual publication of the Edict of Faith, with its accompanying anathemas, proclaimed this imperative obligation in the most solemn manner and, at the same time, furnished a list of the offences to be denounced, thus rendering every one a spy upon his neighbor. The denunciation might be either verbal or written and, if written, either anonymous or signed; it could be made to a tribunal or to any commissioner, and it was expected to contain the names of witnesses to be summoned in its support. These denunciations came in more frequently after the publication of the Edict of Faith, and also about Easter, when the faithful confessed in preparation for the indispensable paschal communion, and the confessors enquired whether they had denounced whatever they had heard, seen or understood that was, or appeared to be, contrary to the faith or to the rights of the Inquisition, and absolution was withheld from those refusing to do so. This denunciation and the evidence of the witnesses summoned in its support, or the testimony acquired by inquest, or by the confessions of those on trial, constituted the sumaria--the instruction préparatoire of French practice.

The tribunal, however, was held not to act summarily in so grave a matter as an arrest casting infamy on an entire lineage. After the first tumultuous period, when no one was safe from arbitrary imprisonment, the portions of the evidence which conveyed the nature of the charge, without the name of the accused, underwent the process of calificacion, or censorship, to determine whether they presented calidad de oficio. We have seen, in the cases of Carranza, of Villanueva and of Froilan Díaz, how important was the function of the calificadores, or censors, and how much sometimes depended on the manner in which the evidence was submitted to them. In the rehabilitation of the Nuns of San Placido, they were careful to declare that, if they had had to act upon the testimony laid before their predecessors, they would have reached the same conclusion. Against such garbling there could be no guarantee, in the profound secrecy enveloping every act of the tribunals.

[Sidenote: CALIFICACION]

The calificadores were learned theologians, whose duties we have already referred to (p. 263). Some were regular appointees, but any one could be called upon, nor could he refuse to serve without pay. When there was not unanimity, the inquisitors decided or submitted the case to others. There seems to have been no settled or absolute rule. In 1634, in the case of Jacques Garrigues, a wandering French beggar, professing sanctity and curative powers and claiming to be a messenger of God, not without indications of insanity, the two inquisitors joined with four calificadores in considering the evidence before arrest, but this seems to be exceptional.[1416] The resource of calling in successive calificadores in obscure cases frequently led only to a hopeless divergence of opinion, bewildering rather than assisting the inquisitors. When, in 1640, the Bernardine Fray Tomas de Nieba defended some subtle conclusions in scholastic theology, there were eleven calificadores called into service, of whom some found nothing to censure, others that the doctrine was a condemned one, others again that it merely approached to error. In the same year, in the similar case of the Franciscan Fray Juan Lazaro, one calificador pronounced his doctrine to be obscure and perilous, if not formally, at least virtually, heretical; another that to defend it was a most grave error, while two others could find in it nothing objectionable. Yet Lazaro was put on trial and, after the case had traversed its various stages for months, it was suspended, though Lazaro was ordered in future to teach the opposite opinion.[1417]

At length a carta acordada of October 8, 1708 sought to regulate the system. In all cases requiring calificacion, a correct extract was to be made from the evidence as to the acts and speeches charged, with all circumstances contributory to a clear understanding. This was to be sent to one of the calificadores, who was to keep it at least three days, and return it with his opinion, not only as to the requisite censure but also as to the defence that could be made. It was thus to pass from one to another, after which the tribunal was to call them together to frame a common opinion. Books and papers were to be treated in the same way and there was no obligation of secrecy between the parties called in.[1418]

All classes of charges were not subjected to calificacion, for there were numerous and important groups of offenders who were deprived of this safeguard, slender as it was at the best. Judaizers and Moriscos, renegades, bigamists, those administering sacraments without being in priestly orders and solicitors of women in the confessional were not entitled to it.[1419] Thus taken as a whole, up to the middle of the eighteenth century, the major portion of the business of the tribunals was exempt from calificacion and practically it was limited to the refinements of venturesome theologians, to the degree of heresy involved in more or less picturesque blasphemy, the culpability of careless or reckless talkers, and the implied pact with the demon in the conjurations of wise-women and treasure-seekers. Like much else in the Inquisition, designed for the protection of innocence, its working effect was reduced to a minimum.

[Sidenote: THE CLAMOSA AND THE CONSULTA]

At what period calificacion was introduced it would be difficult to say with precision. Llorente assures us that in 1550 it was not as yet in use.[1420] This is incorrect for, in 1520, we find the Suprema ordering that calificadores shall not be appointed without its consent and on the simple petition of aspirants.[1421] By that time the custom was evidently established and, in 1556, the Suprema explained it, not as a protection of innocence but as a means of placating the Ordinaries and showing them that inquisitors were not seeking to extend their jurisdiction beyond heresy.[1422] The Instructions of 1561 merely provide that, when there is sufficient testimony in a case pertaining to the Inquisition, if it requires calificacion, theologians of approved learning and character shall be consulted, thus inferring that this is unnecessary when ceremonies known to be Jewish or Moorish are concerned, or manifest heresy or fautorship.[1423] The Suprema felt it necessary, in a carta acordada of July 11, 1569, to warn calificadores to confine themselves to defining the nature of propositions submitted and not to say whether or not there was calidad de oficio--a limitation which they outgrew. Another carta of November 22, 1577, shows that it had become by this time a recognized preliminary to arrest, by ordering that, if an arrest should be necessary without it, there should at least be calificacion before the formal accusation is presented, which occurred in a later stage of the proceedings.[1424]

In the gradual absorption of all initiative by the Suprema, so that eventually no arrest could be made without its order, the importance of calificacion declined. Calificadores continued to be appointed, but they seem to have been rather ornamental than useful members of the official family, if we may judge from the variation in the number attached to the different tribunals. The table in the appendix shows that, in 1746, Madrid and Llerena had none, while Valencia rejoiced in forty. They still had a function, however, in the censorship of the press, and tribunals that were insufficiently supplied could always summon theologians to their aid when necessity demanded their services.

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As the sumaria was careful to recite that there was sufficient proof, that all formalities had been observed, and that further investigation was unnecessary, the calificacion completed the preliminaries. The next step was the presentation by the fiscal of his clamosa or demand for the arrest of the accused. In the fully developed formula of this, he presented and swore to the sumaria, and embodied the calificacion as showing that the culprit merited the severest punishment, to which end he asked for arrest and imprisonment, with sequestration or embargo of property, promising in due time to present a formal accusation and asking that meanwhile the registers of the other tribunals be examined with the view of securing further evidence. Forms of this were provided suited to the various classes of offences and to the cases of the absent or dead.[1425]

It manifests a praiseworthy desire to avoid precipitate action that a consulta de fe, or consultation of the inquisitors with the consultores and Ordinary, was still technically required before issuing the warrant of arrest. The existence of something of the kind is indicated, as early as 1509, by an order of the Suprema that when there is not unanimity it must be consulted before arrest is made.[1426] Yet, in 1521, a special order requiring such a consulta de fe in the case of Moriscos would infer that the rule was otherwise obsolete.[1427] That it was so is shown by subsequent cases and, even as regards Moriscos, in a number of prosecutions at Daimiel, between 1540 and 1550, the warrants are issued immediately on presentation of the clamosas.[1428] The Instructions of 1561 revived the practice, but did not enjoin it as essential, leaving it virtually to the discretion of the inquisitors.[1429] After this we find it frequently observed and, in the case of Elvira del Campo, accused of Jewish practices, in 1567, there is a consulta prior to the clamosa and a second one afterwards before the warrant of arrest is issued.[1430] When solicitation in the confessional was subjected to the Inquisition, the desire to shroud the offence in obscurity led to a regulation, in 1564, that only the vicar-general should be called into consultation and, in 1600, even he was excluded; the inquisitors were to consult only with each other and then await the orders of the Suprema.[1431] As the rule became established that the Suprema was to be consulted before arrest, these formal preliminaries became of less importance and, in the eighteenth century, we are told that the consulta was no longer held, the reason alleged being that the inquisitors then were jurists.[1432]

[Sidenote: ARBITRARY ARREST]

Apart from these formalities, there was an evident desire on the part of the chiefs of the Inquisition to prevent injustice arising from hasty and inconsiderate action. In the reformatory Instructions of 1498, inquisitors are ordered to be careful and to arrest no one on insufficient evidence--an order the frequent repetition of which proves how little it was regarded.[1433] It was thoroughly understood that the mere fact of imprisonment inflicted indelible infamy and all the authorities urge the utmost caution in the exercise of this tremendous power.[1434] In theory, at least, stronger proof was therefore required by inquisitors than by the judges of other courts; it ought to be as strong as that which justified torture--what was known as semiplena--but this merely consisted in the evidence of a single unexceptionable witness; when there was apprehension of flight, less was required and Sousa, a Portuguese authority, tells us that in heresy flight is always to be apprehended.[1435] It is true that, in 1630, the Suprema ordered that arrest on the testimony of a single witness should not be made without its permission, but this exercised little restraint. Such an arrest was made, in 1638, of Domingo de Mezquita, with a sort of apologetic explanation that he was a Portuguese and had already been tried on the same charge of Judaism.[1436]

One or two cases will show how little real benefit in practice the accused derived from all this elaborate parade of preliminary precautions. In Toledo, June 5, 1501, the fiscal informed the tribunal that Isabel, daughter of Alvaro Ortolano, was defamed for heresy and asked for her arrest. The inquisitors replied that they would order it if sufficient evidence was presented, whereupon he offered the testimony of a prisoner that she had heard Isabel say that she observed the Jewish fasts and on this a warrant of arrest was promptly issued. Considering that the accused was a child ten years of age her summary arrest on evidence so flimsy shows how little impression the Instructions of 1498 had produced.[1437] The Toledan inquisitors did not grow more cautious with time. September 16, 1541, two workmen on the cathedral appeared before them and accused Juan García, a fellow-workman, of having revelations from God in his dreams. A warrant was at once made out; the portero was ordered to have him present that afternoon and, if he demurred, to take him to the prison. He accordingly had his first audience the same day.[1438]

In these arbitrary proceedings the function of the fiscal was purely fictitious and he and the inquisitor, if they had any sense of humor, must have smiled as they acted their parts in the tragi-comedy. In 1532, before Fernando Loazes, the distinguished inquisitor of Barcelona, the fiscal appears and states verbally that it has come to his knowledge that, when the impenitent and relapsed heretic Joana, wife of Gil Tacis, was to be arrested, her husband had sought to conceal her, wherefore he should be arrested as a fautor of heresy and impeder of the Inquisition and, in due time, the proper "information" would be presented. The only evidence was that of Joana, taken by Loazes himself, but he gravely demanded to be informed and he ordered the summoning of all the witnesses whom the fiscal desired to produce. Then the fiscal, to enlighten him, presents the evidence from the record; Loazes orders it to be inserted in the acts of the case, pronounces it sufficient and issues the warrant of arrest.[1439]

In the secrecy of the tribunals there was thus nothing to prevent the exercise of discretional power to oppress the innocent as well as to punish the guilty. That it was so abused appears from the remonstrance of the Córtes of the kingdoms of Aragon, about 1530, complaining that the inquisitors arrested people for the slightest causes and on mere report, and then sometimes dismissed their prisoners without penance or with very slight sentences, thus inflicting infamy on the parties, their kindred and descendants, which was not effaced by the release. Arrests, they urged, ought to be made only for grave offences and on sufficient proof. To this the inquisitor-general disdainfully replied that the laws had been observed; if the complainants thought otherwise, let them produce instances.[1440] This spirit did not promise amendment and, although the Instructions of 1561 prescribed caution and restraint, matters must have grown worse through subordinates aping their masters, for the Concordia of 1568 provides that familiars must not be allowed to make arrests without orders from the inquisitors.[1441]

[Sidenote: SEGREGATION OF ACCUSED]

Even after the Suprema had required to be consulted prior to ordering arrest, small respect was paid to formalities. In criticizing, August 25, 1695, the report of cases pending in Valencia, the Suprema expresses astonishment that an arrest should have been made previous to the calificacion of the charges. In this case the accused was thrown into prison October 22, 1694, and the calificacion followed, February 9, 1695, but the Suprema contented itself with this rebuke and merely ordered the prosecution to be pushed and not be allowed to become immortal.[1442] The Suprema need not have been surprised at this trifling informality in view of the atrocity of a group of cases comprised in a Valladolid report of July, 1699. Francisco Hernández Castañeda had been imprisoned August 30, 1697; his case is reported in the same state as before, there being no testimony against him. Baltazar González Cardozo, aged 14, was arrested August 15, 1698, and there is no evidence against him. Ana Gutiérrez, aged 9, was arrested August 14, 1697, and there is nothing against her as yet. Leona de Paz was arrested September 15, 1698, and there is no proof against her.[1443] Thus these poor creatures had lain in gaol for one or two years without a scintilla of evidence to justify their arrest, and the fact that the tribunal coolly makes this report indicates that there was in it nothing unusual or regarded as scandalous.

Among the reforms which Carlos III attempted to introduce towards the close of the eighteenth century was that of requiring manifest proofs of heresy as a necessary preliminary to arrest, but Llorente informs us that his decrees were not obeyed.[1444] Still, in time there was an improvement in this as in so many other directions, perhaps partially influenced by the poverty of the Holy Office and its desire to avoid the maintenance of poor prisoners. Thus, in the case, at Cuenca, of Juan Francisco de la Landera, a jubilado notary of confiscations, prosecuted in 1816 on suspicion of being the author of a memorial to the king and of other offences, he was allowed to be at large during nearly the whole course of the trial and it was not until after the presentation of the accusation and his reply that it was voted to imprison him and embargo his property.[1445]

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The reason commonly alleged, in deprecation of reckless arrest, was the infamy cast on the accused and his kindred, but this was by no means the only infliction peculiar to the Inquisition. There was special hardship in the segregation at once imposed on the prisoner. From the moment of his arrest, the utmost care was taken to prevent his exchanging a word with any one. When it took place at a distance, the commissioner was instructed to observe this with the utmost rigor, both in confining the prisoner on the spot and in sending him to the tribunal. If two or more were arrested simultaneously, they were strictly kept apart, both in prison and on the road. Thus, in 1678, when several Judaizers were to be seized at Pastrana, the instructions from Toledo were that they were at once to be shut up, incomunicado, in houses of officials, and to be sent to Toledo one by one, observing rigid precautions that they should speak with no one. Each was to be under charge of a familiar and, if there were not enough in Pastrana, those of the neighboring towns were to be called upon.[1446] The misery caused to the prisoner and his family by the arrest was intensified by this sudden inhibition of all exchange of affection and all instruction and advice as to what they were to do in their affliction.

[Sidenote: IMPORTANCE OF SEQUESTRATION]

Another feature, falling with especial severity on the poorer classes, arose from the rule of the Inquisition to cast all expenses on its prisoners. The officer who made the arrest was instructed to bring with him a specified sum to be deposited with the alcaide of the prison for the maintenance of the prisoner; also a bed for him to sleep on and clothes for him to wear. If, as usually was the case, the required amount was not found in cash among the effects of the culprit, enough of his household goods was sold at auction to meet the demand. The working of this is seen in the case of Benito Peñas, a poor ploughmaker of Cobeña, near Alcalá de Henares--a half-crazed devotee, who created scandal by denying that Christ had died on the cross. The order for his arrest by the Toledo tribunal, January 25, 1641, required the familiar to bring with him 30 ducats for expenses and a bed. The only coins found in Benito's possession amounted to 19 cuartos vellon, equivalent to about 2-1/2 reales: so on Sunday, February 10th, all his little possessions of tools, furniture and clothing, except the garments on him and two old shirts, were sold at auction. Even the rosary in his hands was included, but the total proceeds, after deducting charges, amounted to only 20 ducats. Of this about a half was absorbed by the expenses of guards and conveyance to Toledo, and only 105-1/2 reales were delivered with him at the carceles secretas, out of which the tribunal refused to pay anything to the familiar for his time and labor. Benito's mental unsoundness developed rapidly in his incarceration and, in August, he was discharged as irresponsible. The authorities of Cobeña were obliged to take him home at their own expense, and doubtless to support him afterwards, as he had been deprived of all means of earning his livelihood, while, with customary inquisitorial logic, in spite of his insanity, he was condemned to wear a parti-colored garment of gray and green, in penance for his heresy.[1447] In the case of a religious, if his peculium was insufficient to furnish the desired amount, the superior of his convent was required to complete it.[1448]

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Another feature of extreme severity which, however, was common to secular and episcopal as well as to inquisitorial practice, was the sequestration which accompanied arrest in all cases involving confiscation. The losses and hardships incident to this were fully recognized in secular proceedings and, in 1646, the Córtes of Aragon endeavored to mitigate them and also to prevent the frauds which were admitted to be frequent.[1449] On the other hand, to have the property of the accused in the power of his family was to risk its dissipation before the conclusion of the trial; it had to be preserved at all hazards and the only way to do this was to make sure of it by seizure at the moment of arrest. The importance attributed to this by the Holy Office is seen in the details which form so prominent a portion of the Instructions. It is true that the canon law strictly prohibited the seizure of property, before a sentence of condemnation had been duly rendered, but this had been framed at a time when the temporal lords enjoyed the confiscations, and was disregarded when they enured to the benefit of those who decreed them.[1450]

The alguazil executing a warrant of arrest was accompanied by the notario de secrestos, or notary of sequestrations, who at once seized all visible property and compiled a minute inventory. It was then placed in the hands of a sequestrador or depositario, who held it until the case was decided, when, if confiscation was decreed, he handed it over to the receiver; if not, it was returned, or what was left of it, to the owner.

In the earliest instructions, the receiver and his scrivener accompanied the notary of sequestrations, and two copies of the inventory were made. Much conflicting legislation followed, directed to finding means for preventing the receiver from appropriating portions of the sequestrations, but the trouble was perennial and, in interrogatories drawn up for inspectors on their visitations, there was one which required all officials to declare whether the receiver had taken any sequestrated property before the case of the owner was determined.[1451]

[Sidenote: THE INVENTORY]

Irregularities continued and, in 1633, some respect was paid to the interest of the accused by a rule that a representative appointed by him should be present, with the receiver and notary, when seizing the property and making the inventory. In 1635, this was followed by requiring the senior inquisitor to report promptly to the Suprema all details as to kind and amount of property sequestrated, and whether any collusion or secreting of goods had occurred--a mandate of which the frequent repetition shows the difficulty of its enforcement.[1452] Finally, in 1654, Philip IV assembled a junta to formulate regulations by which, when farmers of the revenue were arrested, the interests of the royal fisc, of all creditors, and of the owner if acquitted, might be protected. These provided that the first duty, on making an arrest, was to search the prisoner for papers and keys. He was then told to name a representative to be present at the sequestration and inventory. If the hour suited, this followed at once, otherwise it was postponed to the next day, padlocks being meanwhile placed on everything, and one or two guards being stationed. The inventory was made in the minutest detail, room by room, specifying the contents of all desks, trunks, chests and other receptacles. The keys were then delivered to the depository selected, who receipted for the property and became responsible for it. Then followed immediately the audiencia de hacienda, in which the prisoner was made to give an account of all of his possessions. If among the effects seized were some of a nature requiring them to be sold, or if it was necessary to provide for the food of the prisoner, they were disposed of at auction, after appraisement made in the presence of his representative.[1453]

As the inventory was the basis of all further proceedings, from a very early period rigid instructions were issued that it should be complete to the minutest detail. Every paper found in the prisoner's possession was to be enumerated; in 1607 the Suprema complained of negligence in this respect and ordered that in future not only must every paper be set down but also its nature and contents.[1454] Such inventories as I have had an opportunity of examining show the laborious trifling entailed by these instructions. In the case, for instance, of Margarita Altamira, in 1681, the list covers four closely written pages, consisting of entries such as "an old pair of scissors," "a worn tow towel," "an old broom," "an old earthen pot," etc. She was the wife of an agricultural laborer, apparently separated from her husband and owning nothing save her little household plenishing and clothes.[1455] Official zeal sometimes outran discretion, gravely affecting the interests of others, as when, in 1597, the Suprema was obliged to issue instructions that, when heretic ship-masters were arrested in the sea-ports, only their own effects were to be seized and not the ships and cargoes.[1456] It was unavoidable that the property of third parties, in the hands of the accused, should be included in the sequestration and, as we have seen, from an early period the orders were that such goods should be surrendered as soon as owners should prove their rights. Such cases were of perpetual occurrence, causing much damage or inconvenience, and were attended with exasperating delays. The daughters of Brianda Royz, reconciled with confiscation, presented, March 19, 1530, a claim for some seventy articles of household furnishing, which were not adjudged to them until July 7, 1531. The list included a pair of chickens which had doubtless long before disappeared in the olla.[1457] The case of Margarita Altamira affords some quaint illustrations of the annoyances inflicted on those who chanced to have had dealings with the accused. She was arrested in November, 1681 and, on April 8, 1682, the priest Francisco Juan Sans presented a petition representing that, among the effects sequestrated, was a lot of shirts and undergarments of which he furnished a list--Margarita apparently having been his washer-woman. The paper was endorsed to be filed away and its proof to be received in proper time. The proper time was slow in coming for, in August, the good padre again petitioned for his shirts, but whether he eventually recovered them the documents fail to show. A year later, August 3, 1683, Margarita Batlle made application for a cradle which she said that she had lent to Altamira. The case was referred to the receiver who reported that there was in the sequestration an old cradle, which if sold might fetch two or three reales. Then, on August 25th, the inquisitors resolved that, as it was of so little value, it might be surrendered to her on her proving ownership under oath and, on October 6th, she was duly sworn and examined; she described the cradle, told from whom it was bought at the price of two reales, explained why she had lent it and why she had not reclaimed it prior to Altamira's arrest, whereupon it was ordered to be restored to her.[1458] Evidently there was no haste in relieving the necessities of those who were caught in the sweep of sequestration.

[Sidenote: PROVISION FOR FAMILIES]

It was very properly a cardinal principle, frequently reiterated, that sequestrated property was sacred and was not to be diverted, however great might be the necessity.[1459] It was easier, however, to enunciate such a self-denying ordinance than to observe it, in an institution practically secure from supervision. Ferdinand set the example by selling or granting as favors numerous houses in Perpignan, abandoned by fugitives before the Inquisition was in operation in Roussillon, and he had no scruple in assuming the condemnation of the owners before their prosecution had commenced.[1460] We have seen how, in 1644, the Suprema admitted to Philip IV that, to satisfy his exigencies, it had sold sequestrated property, for which the owners, who had been acquitted, were clamoring.[1461] In fact, the use of such property became habitual for, towards the end of the century, we find an official depositario of the Suprema in charge of the sequestrations, who was accustomed to meet, from the funds in his hands, the expenses of the Madrid tribunal, subject of course to repayment. In one transaction of the kind, the advance made July 3, 1680, was not refunded until November 17, 1681.[1462] The tribunal was thus exposed to the risk that its decisions might be influenced by the condition of its account with the depositario.

At first there would seem to have been no provision for the family of a prisoner whose property was thus suddenly seized. They were cast adrift and deprived of subsistence, regardless of the fact that confiscation might not be decreed. In the early Instructions there is no arrangement for their support during the trial, and any exceptions to this were matters of favor, as when Ferdinand, July 11, 1486, wrote to the receiver of Saragossa that, as the lands and personalty of Juan Navarro had been sequestrated, as his children had no other support, and as one of them had rendered him good service, all the rents and profits of the estate should be paid to them during the pendency of the case.[1463] Common humanity demanded that some attention be paid to the necessities of the innocent and helpless, while confiscation was as yet uncertain, and in time this severity was relaxed, though it cannot be positively stated when this commenced. The earliest allusion to it, that I have met, occurs in the memorial of Llerena, in 1506, which, while denouncing the cruelty of turning the family into the streets at night, admits that some allowance was made to them from the sequestrations. It complains, however, that this was miserably insufficient and so irregularly paid that sometimes months elapsed without anything being received. In one case two little daughters of a rich prisoner perished of hunger, and their elder sisters subsisted by beggary at night. A woman thus left with ten souls dependent upon her was allowed twenty-five maravedís a day, when two hundred and fifty were requisite, and even of this pittance she had received nothing for three months.[1464]

The matter was one which called for regulation, and various experimental instructions were issued from time to time. Absolute arrangements were not easy to provide and, between 1538 and 1558, a number of utterances show the difficulty of reaching a satisfactory result. The general features of these are that the inquisitors are to consult with the receiver and notary of sequestrations and assign an allowance proportioned to the amount of the property and station of the recipients, while consideration is to be given to the ability of individuals to earn a living, provided it is not derogatory to their rank.[1465] A definite policy was finally reached in the Instructions of 1561, which remained the standard. These provide that, if the wife or children of a prisoner apply for support, he is to be consulted and, if he so wishes, an allowance out of the sequestration is to be made to them, proportioned to their station, but if there are some of an age to work they must provide for themselves. This was a matter of grace and not of right, for a subsequent regulation restricts the grant to a limited time because the trial may be prolonged and it may be advisable to discontinue the payments. In 1567 it was added that common clothes and bedding could be given, but every article must be specified, as the depositaries were apt to be too liberal unless restricted.[1466] It thus became a settled principle that the family of a prisoner was to be cared for out of the sequestration of its head, if he had property and, in the printed form of a warrant of arrest, in 1696, this is specified as the object of placing it in the hands of a depositary selected by the prisoner.[1467]

[Sidenote: THE SECRESTADOR]

While recognizing the humanity of these provisions it may be questioned how far they relieved the hardships of dependents, especially in the later period, when the dilatory methods of the Inquisition prolonged the trials inordinately. Unless an estate was unusually large, it was apt to be speedily consumed by wasteful methods and the accumulation of expenses. As we shall see hereafter, unless the accused was penniless, the cost of his maintenance in prison was a first lien on his sequestrated property and, if there was not ready money, his effects were auctioned off to supply it. The strictness of the rule to pay all expenses out of the sequestration is illustrated in the case of two children of Antonio Enríquez Barrios, confined with their father in the prison of the tribunal of Madrid. When they were discharged, 1423 reales, the cost of their clothing and food, were collected from the sequestrated estate of their father, whose trial was unfinished.[1468] It may be assumed, under such a system that, when the accused escaped without confiscation, only a remnant of his property was restored to him, especially as he had to accept on account from the depositario whatever the tribunal had ordered to be paid out of the sequestration and be content with the balance, while whatever he might owe for his prison maintenance had to be paid before an order was issued to lift the embargo. In this respect, a suspension of the case was equivalent to an acquittal and entitled him to resume possession of what remained of his property.[1469]

Of course nothing could compensate a man engaged in trade for thus locking up during years all his business concerns. To such a one, arrest with sequestration meant ruin, however clearly his innocence might be demonstrated after the prolonged proceedings of the tribunal. A curious inventory of a printing office thus seized shows the breaking up of a business and the destruction of the means of livelihood. One item is "a hundred and twenty reams of the third volume of Rodríguez, the book at present in hand," which is highly suggestive of the loss inflicted, without redress, on other parties concerned, as author or publisher, as also of the sacrifice incurred by peremptory auction sales of such material.[1470]

* * * * *

The office of secrestador or depositary would seem, in the earlier period, to have been regarded as desirable, and it certainly offered opportunities for the dishonest. That these were sometimes improved is apparent from the case, in 1510, of Fernando de Mesa, a jurado of Córdova, who was secrestador of the estate of a certain Celamin. By the time the latter was condemned, Mesa had died and the sequestrated property was not forthcoming. He had placed four daughters as nuns in the convent of Santa Ines and their share of the defalcation was thirty thousand maravedís, but the convent pleaded inability to pay through poverty and Ferdinand kindly forgave it the debt.[1471]

To the honest, however, the office was in every way undesirable. It involved labor, anxiety and responsibility without payment but, when selected and approved, the appointee was obliged to serve, under penalty of excommunication and a fine of ten or twenty thousand maravedís. It was recommended that, if possible, he should not be a kinsman of the prisoner or a Converso, and he was always to be of good repute and standing.[1472] If the accused was a householder, the house was locked and the keys were given to the depositary; otherwise he was put to the expense of storage; he was obliged to sign a paper subjecting himself to the penalties imposed on him by the alguazil and pledging his person and property to make good any deficiencies occurring through error or negligence, for which he renounced his fuero and submitted himself wholly to the Inquisition.[1473] The perplexities and tribulations to which he was exposed are illustrated by those of Jaume Taxes, who served as depositario in the case of Margarita Altamira. He appealed, April 26, 1682, to the inquisitors, representing that, when the sequestration was made, he was given the key of the house, but he is now required to surrender it to the owner and to have the goods stored safely; he has no room for them in his own house and petitions to have them delivered to some one else. No attention was paid to this and, on May 14th, the owner of the house, a priest named Francisco Canudes, came forward with a complaint; on March 26th he had obtained an order for the key, but Taxes refuses to surrender it, wherefore he desires that he be forced to do so and to pay him six months' rent.[1474] The documents fail to inform us what was the solution of the complication which the tribunal had thus created, but the affair illustrates the manner in which the Inquisition was wont to call for gratuitous services and to pay little regard to the convenience or interest of those on whom it imposed onerous duties.

[Sidenote: LIMITATIONS]

There were some limitations on the power of sequestration. It was confined to property found in possession of the accused; whatever he owned that was in the hands of third parties could not be sequestrated and had to await sentence of confiscation before it could be seized.[1475] An application of this principle led to the somewhat remarkable rule that there could be no sequestration in prosecutions of the dead, however convincing the proofs of guilt, because the possessions of the offender had passed into the hands of third parties. As early as 1537 this was prescribed by the Suprema, in a letter to the tribunal of Barcelona, and it was embodied in the Instructions of 1561.[1476]

A more important limitation confined sequestration to arrest on charges of formal heresy, and the fiscal was required in his clamosa to specify whether or not he asked for it, though as late as 1575 the Suprema was obliged to notify the tribunal of Valencia that heresy was a prerequisite of sequestration.[1477] The definition of heresy, however, was somewhat elastic and when, in 1573, a determined effort was made to eradicate the general popular belief that fornication between the unmarried was not a mortal sin, it was ordered to be prosecuted as heresy with sequestration.[1478] When formal heresy was involved, sequestration was to be decreed, whether the accused had property or not and, in 1665, the Suprema rebuked the tribunal of Barcelona for omitting it in the case of a galley-slave.[1479]

The Inquisition at length grew restive under the limitation of sequestration to formal heresy, for, as heretics grew fewer, it exempted a vast proportion of the cases which formed the current business of the tribunals, consisting of blasphemy, sorcery, bigamy, solicitation, marriage of clerics, propositions scandalous, audacious or ill-sounding, the possession of prohibited books, and, in fact, as we are told, all offences which did not in law import confiscation.[1480] In these cases the warrant of arrest, during the sixteenth century, instructed the alguazil to arrange so that the prisoner could leave his property in the hands of any one whom he should select, to be used for the maintenance of himself and his family, and an inventory was to be made to prevent misappropriation.[1481] In time the Inquisition outgrew this consideration for the innocent sufferers, which reduced it to sharing with them in the use of what was apt to disappear in the course of the protracted trials. To remedy this and without, so far as appears, any warrant of law, the expedient was devised of substituting for the word sequestration the euphemistic term of embargo, and ordering the property of all prisoners not liable to confiscation to be embargoed. The words had the same meaning and, in the earlier time, were used as identical, often copulatively as "embargo y secresto"--a mere pleonasm of legal phraseology, the context showing that sequestration was meant.[1482] The slight shade of difference was that in embargo the prisoner selected the depositary who was to hold the property and pay from it the expenses of his maintenance in prison during his trial.[1483] Thus sequestration, under the flimsy veil of calling it embargo, became a matter of course in all arrests and the fiscal was instructed, when the calificacion was of formal heresy, to ask for sequestration, in other cases for embargo and, when frailes were the culprits, for embargo of their peculium and papers. So universal was this that, in 1665, the Suprema required the Barcelona tribunal to furnish reasons for not embargoing the property in any case of arrest for minor offences.[1484] So it continued to the end. In 1815 we find numerous cases of embargo in arrests on charges of bigamy, solicitation, irreverence, propositions and the like, while the Dominican Fray Tomas García, for celebrating mass without priests' orders, had his peculium embargoed.[1485]

[Sidenote: ILLUSTRATIVE CASE]

In this illegal extension of sequestration there is something peculiarly heartless. When the offence charged inferred confiscation, there was some excuse for making sure that the property would not be secreted or dissipated, but in minor cases to subject the offender and his family to the hardship, and perhaps ruin, caused by seizing his property and holding it during the leisurely progress of his trial, merely in order to secure to the tribunal the reimbursement of his maintenance in prison, shows how thoroughly hardened the Holy Office had become to human suffering and how its selfish greed stifled all the promptings of humanity.

* * * * *

A practical illustration of the process of arrest and sequestration is furnished by the case of Ana de Torres, a woman of twenty-two, recently married to Gaspar Agustin, a confectioner of Ciudad Real. Testimony of Judaism had been gathered against her and, on May 9, 1680, the Toledo tribunal ordered its familiar, Don Alvaro Muñoz de Figueroa, a Knight of Santiago, to arrest her, sequestrate her property and send her to Toledo with bed and clothing and 100 ducats. On May 17th Muñoz reported that, after ascertaining her address, he had gone to her house at nine o'clock that night, with a notary, familiar and servants, had carried her off to his own, turning out the husband and placing two guards, so that the sequestration could be made the next day. From what he could see, all the contents of the house was not worth 100 ducats and he was told that they belonged to the husband, for she had come to Ciudad Real in September with nothing but her person. Moreover she was five or six months gone with child. He asked for instructions, which were given in apparent disregard of the husband's rights, for he was told to make the sequestration and send her with her bed and clothes and whatever he could get for her things. On May 24th he reported that he had started her on her journey with 400 reales (about 36 ducats) which was all that he had realized on the sale of the effects. Successive relays of familiars carried her gratuitously and the next day the receiver of Toledo acknowledged the receipt of the 400 reales to pay for her food. Then, on July 6th, the alcaide reported that she was suffering from an inflammation of the throat which, in her condition, threatened serious complications. The medico was called in, who prescribed bleeding and gargles and removal from the confined air of the prison. She was taken to the house of the alcaide, where she was duly bled and, on July 18th, was sufficiently recovered to ask for an audience. In due time, on September 13th, the alcaide reported her confinement and that he had provided a midwife, when he was ordered to take care that she had everything necessary for her recovery and comfort. On September 29th the child was baptized and the mother brought back to the prison, when she was placed in a cell with two other women and, in October, orders were drawn for 146 reales to pay for the clothes and swaddling-bands of the infant and for 14 reales to the chapel of the cathedral for its baptism.[1486]

The redeeming features of these latter details afford a welcome relief to the sordid eagerness of the Inquisition in grasping everything within its reach in order to escape the costs of persecution, regardless of the misery which it inflicted. In the present case we learn nothing as to the husband, presumably innocent, thus turned out of his house and stripped of his furniture. This was no concern of the Holy Office.

IV. THE SECRET PRISON

The cárceles secretas, or secret prison, was the official designation of the place of confinement during trial of those accused of heresy. It formed part of the building of the Inquisition, so that the prisoner could at any moment be brought into the audience-chamber without being exposed to public view--such a case as Carranza's, where confinement was in a different place and the inquisitors went there, being wholly exceptional. The secret prison was exclusively one of detention, the casa de penitencia, or punitive prison, being wholly different, and the contrast between the two--the laxity of the imprisonment as a punishment of the guilty and its rigor towards those whose guilt was yet uncertain--is not the least of the anomalies of the Holy Office.

As a general rule it may be said that imprisonment followed arrest and that admission to bail was an exceptional favor in the early time, virtually withdrawn afterwards. In 1530 we have an example in the case of Antonio de Parejo, a priest whose offences did not amount to formal heresy, who was released by the Toledo tribunal from the secret prison and given the city as a prison on bail in 100,000 maravedís, furnished by his brother Vizcaino, who renounced his fuero; Parejo moreover took a solemn oath not to leave Toledo on his own feet or on those of others, and that a certain Matheo Pérez could always tell where he was to be found.[1487] Various regulations, in 1535 and 1537, allow bail in cases where arrests had been made on slender evidence but, in 1560, Valdés ordered that no exceptions should be made when the charge was of heresy.[1488]

For those held on less serious charges there was less rigorous treatment. The inquisitorial jurisdiction extended over a wide range of offences, more or less trivial, and the tribunals did not care to be burdened with the expense of prisoners who were not likely to seek safety in flight or to warn their accomplices. For these there were various grades of confinement, under the practice known as aplacería, of assigning the city as a prison, or the offender's house, or the less rigorous prison for officials under trial, known as the cárcel de familiares. Thus, about 1640, a writer says that, in cases of blasphemy, the accused can be assigned the city as a prison or, if the offence has been especially shameless and scandalous and reiterated, it may be proper to confine him in the cárcel de familiares or, if flight is anticipated, even in the secret prison, although this is a rigor not now practised. He adds that, when astrologers spontaneously denounce themselves, they are not thrown into the secret prison but into the cárcel de familiares or are given their own houses or the city as a prison.[1489] Friars often, unless the charges were particularly grave, were assigned for detention to the convent of their Order, in accordance with the general policy of guarding the honor of the Church. When the prisons of the tribunals were crowded, convents were also sometimes used as subsidiary prisons, as they were provided with cells for detention.

[Sidenote: LESS HARSH THAN OTHER GAOLS]

In some tribunals we also hear of cárceles medias, cárceles comunes and cárceles públicas, for offences not of faith. These appear to be similar to the cárcel de familiares and, in all of them, confinement was held not to inflict the indelible stain of the secret prison. As a rule, the prisoner in these was not debarred from communication with his friends, although he might be confined sin comunicacion. In fact, the whole matter lay at the discretion of the tribunal. We have seen how, in the passionate conflicts of jurisdiction, inquisitors sometimes wreaked vengeance on their opponents by inflicting on them the infamy of confinement in the secret prison. So, on the other hand, culprits charged with heresy, when the proofs seemed slender, were sometimes placed in the cárceles medias and then, as the trial advanced and the evidence grew more compromising, were transferred to the secret prison. Thus, in 1678, Angela Pérez, on trial for Judaism by the tribunal of Toledo, was moved, June 22nd from the medias to the secretas; the same occurred at Valladolid, in 1697, in several cases of Judaism, and, as late as 1818 there is an example at Seville, where Ana María Barbero, tried for superstitions and blasphemies, was similarly shifted when the case reached the stage of formal accusation.[1490]

* * * * *

In compassionating the hardships of the secret prison, the horrors of the gaols of the period must not be lost to sight and, in the comparison, we shall see that those of the Inquisition were less vile than those of other jurisdictions. It is true that the ancient laws of Castile proclaimed that prisons were meant not for punishment but for detention while awaiting trial, and that Ferdinand and Isabella, in 1489, ordered a weekly inspection by the judges, who should listen to all complaints made by prisoners, a provision repeated by Charles V, in 1525.[1491] Yet the petition of the Córtes of Madrid, in 1534, shows how little attention these enlightened enactments received and the condition of the gaols can be conjectured from that of Valencia, where, about 1630, Pedro Bonet, secretary of the Inquisition, was confined, while a competencia was fought over him, and when he was surrendered to the tribunal he was in such a state that he died within three days.[1492] It is certain that the Inquisition regarded its secret prison as more humane than the royal gaol, even in modern times, for in 1816, when Don Agustin Pirala was tried by both jurisdictions, for certain irreligious and "anti-political" propositions, the tribunal of Madrid, in procuring his transfer to its cells, asserted that this was to relieve him from the inevitable hardships of the royal gaol in which he was confined.[1493]

This may well be true, for the secret prison had the reputation of being less harsh than those of the spiritual jurisdictions. In 1629, Fray Diego de Medina, when brought before the tribunal of Valladolid for uttering some radical heresies, explained that, in his convent de la Victoria, he was kept in the stocks in the convent prison, and he had made the heretical assertions in order to be transferred to the milder treatment of the Inquisition, whereupon he was dismissed with a reprimand. We might regard this as an isolated case were it not for a similar one, about 1675, where a cleric, confined in the episcopal prison, pretended Judaism with the object of being removed to the Inquisition. In this instance the tribunal rebuked him and remanded him to the tender mercies of his bishop.[1494]

Whether the secret prisons were better or worse than the royal and ecclesiastical gaols, they were dismal and unwholesome places of confinement. Of course as structures they varied greatly. Few, if any, of the buildings of the Inquisition were constructed for its use. In Saragossa the royal castle of the Aljafería, in Barcelona the royal palace, in Valencia the archiepiscopal palace, in Seville the castle of Triana, in Córdova the Alcázar were occupied and utilized, and elsewhere such buildings as seemed suitable were taken. Those which had served as castles had dungeons already provided; in the others, cells were constructed. Under the circumstances there could be no common plan and no general standard of convenience or healthfulness. It is to be hoped that not many were like that of Palermo, where there were great subterranean caverns in which the inquisitors constructed cells for their prisoners, but probably not much better was part of the secret prison of Toledo, of which we get a glimpse in 1592. Mari Rodríguez, after lying there for nine months, with a year-old baby, asked an audience and begged to be removed from her cell, for it was entirely dark and she and her companions suffered greatly and they were sick, to which the inquisitor coldly replied that what she needed was to discharge her conscience and save her soul and, for the rest, she should have justice.[1495]

That the prisons should be unsanitary was a matter of course at the period and the death-rate must have been large, especially during the pestilences, which are of constant recurrence in the annals of the time. Statistics are of course unattainable, but the records frequently refer to the death of prisoners during trial. In Valladolid, the report of 1630 to the Suprema includes the names of twelve deceased prisoners, with the existing state of their cases and, in the great Madrid auto de fe of 1680, all the dead who were burnt in effigy, to the number of eight, had died in the prisons.[1496]

[Sidenote: TERROR INSPIRED]

Confinement in the secret prison was regarded as one of the gravest misfortunes that could befall a man, in consequence of the indelible stain that it inflicted on him and his descendants. The Consults Magna of 1696 dwells eloquently on the horror inspired by such imprisonment and the injustice of subjecting to it, at the whim of an inquisitor, those whose offences had no relation to the faith. In support of this it adduces the case of a woman of Seville, in 1682, who had some words with the wife of a secretary of the tribunal; the alguazil was sent to arrest her and, in her frenzied desire to avoid imprisonment, she threw herself from an upper window and broke both her legs. The Consulta adds that those who were guilty only of an insult to a familiar were not infrequently thrust into the deepest dungeons of the secret prisons.[1497] The terror thus caused was rated as one of the most efficient powers possessed by the Inquisition. When, in 1622, Gregory XV granted to the bishops concurrent jurisdiction over the crime of solicitation, the remonstrances addressed to him from Spain represented this dread as a deterrent much more powerful than anything that the bishops could bring to bear. In the royal instructions to the Duke of Alburquerque, then ambassador at Rome, it is argued that the fear of the infamy wrought by the prisons of the Inquisition restrains the hardiest culprits.[1498] Power such as this was liable to constant abuse, even after the Suprema had deprived the tribunals of initiative and, when the attention of Carlos IV was called to it, in 1798, by the case of Ramon de Salas, a professor at Salamanca, he proposed to require special royal permission before consignment to the secret prison, but Llorente tells us that court intrigues prevented the enactment of this wholesome reform.[1499]

* * * * *

The cruelty which kept all prisoners in chains was not peculiar to the Inquisition, for we have seen that it was a common practice in the secular gaols. An Italian visiting Madrid, in 1592, describes three prisons there; that of the court, of the city and of the priests, and says that all prisoners, no matter how slight their offences, were fettered. It was evidently a novelty to him which he sought to explain by the insecurity of the buildings.[1500] None of the Instructions refer to chains, but a chance allusion of Pablo García shows that their use was assumed as a matter of course, and this occasionally presents itself in the trials as when, in 1565, Pierre de Bonneville asks their removal to enable him to change his drawers and, in 1647, Alonso Velázquez, who had escaped and was recaptured, describes how he rid himself of them.[1501]

While thus the Inquisition is not to be taxed with special cruelty in following the universal custom, it had its own methods of inflicting intolerable hardship in special cases. When a heretic proved to be impenitent, a mordaza, or gag, was applied to him. What was the exact form of this instrument of torture it would be impossible to say, but the allusions to it show that it was regarded as a severe infliction. When thus worn in prison it was not a mere precaution against the prisoner spreading his heresies, for an order of the Suprema prescribes that no one be allowed to speak with him except the confessor sent to him in the night before his execution, while even then the mordaza was not to be removed.[1502] There was another device of pure cruelty--the pié de amigo--an iron fork or crotch, fitted to the chin and secured by a band around the neck or the waist, to keep the head up and rigidly fixed. The customary use of this was on culprits scourged through the streets or paraded in vergüenza, but it was sometimes employed to heighten the sufferings of prisoners, either through mere malignity or to induce confession. When the celebrated Doctor Agustin Cazalla was burnt in Valladolid, in 1559, envoys from the tribunal sent to him the afternoon before the auto de fe found him in a dark cell, loaded with chains and wearing a pié de amigo, although he had freely confessed, recanted and begged for mercy.[1503] In 1599, in the case of Jacques Pinzon, a French Calvinist, in Toledo, who made a disturbance in the prison, fifty lashes were administered and a pié de amigo was ordered, April 20th. At an audience granted him six months later, October 19th, he is described as still wearing it, as well as two pairs of fetters and, in this case, the pié de amigo extended from the neck to the right hand.[1504]

[Sidenote: ESCAPE]

In spite of fetters, escape from the secret prison was by no means rare, but it was not often finally successful, for the organization of the Inquisition generally enabled it to recapture the fugitive. A description of the culprit was at once distributed, with a mandate ordering the civil authorities to summon every one to assist and the familiars and commissioners to scour the roads, under pain of excommunication and five hundred ducats.[1505] Thus an army was promptly on foot, every suspicious stranger was scrutinized, and the fugitive was usually soon arrested and returned. In the jurisprudence of the period, breaking gaol was held to be a confession of guilt and some authorities held that this applied to the prisoners of the Inquisition, but Simancas and Rojas agree in regarding this as excessive severity. If the fugitive was recaptured, the ordinary practice was to give him one or two hundred lashes; his trial was resumed and carried forward to the end. If he was not recaptured he was prosecuted for contumacy in absentia.[1506] Numerous cases attest the accuracy of this although, when the culprit was a person of condition, the scourging was replaced by stricter imprisonment and increased severity in the sentence.[1507] For those who eluded recapture, the prosecution for contumacy had but one ending--the absentee was held to be a self-confessed and impenitent heretic, fit only for the stake. Thus, in 1586, Jean de Salines, a Frenchman, on trial for Lutheranism in Valencia, succeeded in escaping with a number of fellow-prisoners. He was not recaptured; the necessary edicts of summons were issued in due order and, as a contumacious heretic, he was burnt in effigy, January 23, 1590 although, at the time of his evasion his case had already been voted on, with the insignificant sentence of abjuration de levi and six months' seclusion.[1508]

* * * * *

The cruellest feature of inquisitorial prison discipline was the rigid denial of all intercourse with the outer world. In the secular gaols, the state always had the right of imprisoning sin comunicacion, where there were special reasons for such rigor, but in the secret prisons of the Holy Office this was the universal rule, enforced with the utmost solicitude as an essential part of its highly prized secrecy. We have seen that, from the moment of arrest until delivery to the gaoler, the prisoner was not allowed to exchange a word with any one but the officials, and this was continued with the same strictness when he was within the walls, so far as concerned the outer world, to which he was as one already in the tomb. He could learn nothing of those whom he held dear, nor could they conjecture his fate until, after perhaps the lapse of years, he appeared in an auto de fe as one destined to the stake or to the galleys or to perpetual prison. It would be impossible to compute the sum of human misery thus wantonly inflicted by the Inquisition during its centuries of existence--misery for which the only excuse was that communication with friends might aid in his defence. According to inquisitorial theory, the presumption of guilt was so absolute that all measures were justified which would hinder fraudulent defence.

[Sidenote: SEGREGATION]

This strictness was not observed at first. The Instructions of 1488 call attention to the evils arising from communication with prisoners and order inquisitors to see in future that it is not permitted, except by the admittance of religious persons for their spiritual benefit.[1509] This received scant attention, for the Instructions of 1498 order alguazils and gaolers not to permit the entrance of wives or kindred, and whatever is sent to prisoners must be examined to ensure that no letters or messages reach them. Even inquisitors and other officials were forbidden to speak with prisoners except in the presence of another official.[1510] This rigor was relaxed, for an order of the Suprema, in 1514, provided that no one from the outside should speak with a prisoner, except by special licence of the inquisitor, and then only in his presence or that of a notary, and a further concession, in 1536, was that, if a prisoner desired an interview with his wife, the inquisitor, if he saw fit, could grant permission.[1511] These slender concessions, however, were soon withdrawn and, in 1546, officials were reminded that only those permitted by the Instructions could be admitted and any contraventions would be severely punished.[1512] Surreptitious communications were difficult to prevent, and so little were the officials trusted that two locks were required on each cell-door, so that the alcaide or gaoler could not enter without his assistant.[1513] The success with which all this was enforced is boastingly alluded to in a report of the Valladolid auto de fe of May 21, 1559, where it is declared that the inquisitorial process was so secret that no one knew what was the offence of any prisoner till he appeared on the scaffold.[1514]

The increasing importance attached to this is revealed in the Instructions of 1561, which take for granted that all access from outside is forbidden and which regulate the interior life of the prison with the same object. Everything brought to a prisoner, whether provisions or other matters, was reported to the inquisitors who decided as to its delivery; if allowed, it was minutely examined to see that it transmitted no message. If it were found that prisoners had communicated with each other, no pains were spared to find how it was done and what had passed between them. When prisoners were confined together, if their cell was changed, they were kept together and not scattered among others. The segregation from the world was maintained to the end; at the auto de fe no one was allowed to speak with penitents, except the confessors assigned to them, and those who were burnt were sent to their last reckoning without being allowed to learn what was the fate of those whom they held dear. When penitents left the prison, after the auto, they were subjected to the avisos de cárceles, in which they were examined under oath as to all that they had seen or heard while confined, and were ordered, under heavy penalties, to reveal nothing of their own experiences.[1515] All this was not wanton and cold-blooded cruelty; it was merely the pitiless enforcement of a rule which was superior to all the promptings of humanity.

In the fulfilment of the rule the most minute regulations were multiplied and reiterated. The alcaide was warned to be especially careful about his wife and children, who were never to be allowed to see the prisoners; no one was to be admitted to the cells, except the sworn attendant who served the food, and when, as in some tribunals, it was served uncooked for the prisoners to cook, it was not to be wrapped in paper but was to be brought in earthen pots. In serving food and in cleaning cells, the door of one was always to be securely locked before opening another; no windows which looked upon those of the cells were allowed to be opened; in Murcia, the water-carrier who served the Inquisition was not allowed to enter the court-yard to fill the jars, but to do so from a window opening upon the court, or to have the water in a room where the jars could be filled.[1516] No precaution was too minute, no watchfulness too careful, when the supreme object was concerned of isolating the prisoners from their friends and from each other.

[Sidenote: WRITING MATERIALS]

Yet there were ways of eluding the vigilance of the tribunals, of which bribery of the underlings was the most frequent. Even the alcaides were not insensible to such seductions and a writer advises them to take warning by the example of those who enter office in honor and leave it in ignominy.[1517] The kindred and friends of prisoners were frequently people of means and there could be no hesitation in outlays to circumvent the cruel rules which forbade to them and to the captives all knowledge of each other's fate. The Inquisition was by no means consistent in its treatment of those who thus violated its regulations. In 1635, Miguel de Maradillo, a bricklayer working on the roof of the prison of Valladolid, carried a message from one prisoner to another informing him that his wife and son had been arrested. On another occasion he told the same prisoner that his daughter had been relieved of the sanbenito and he conveyed a paper from him to them. In this he seems to have been actuated merely by compassion and his punishment was light--a reprimand, six months' exile from Valladolid and prohibition of future employment on the building of the Inquisition. In 1655, Francisco López Capadocia, on trial by the tribunal of Valladolid, was subjected to a second prosecution, for communicating with other prisoners and was sentenced only to reprimand and exile.[1518] Greater severity seems to have been shown when employees of the tribunals were the guilty parties. In 1591, when Don Alonzo de Mendoza was confined in Toledo on a charge of heresy, his friends outside established correspondence by means of the cook, Francisca de Saavedra, who conveyed the letters in the dishes. She admitted having received bribes to the amount of 8160 maravedís and was punished with a fine of 6000, besides a hundred lashes and four years' exile.[1519] Still harsher was the treatment, about 1650, in Mexico, of Esteban Domingo, a negro slave employed as an assistant in the crowded inquisitorial prison. He was detected in carrying for money communications between the prisoners and their friends, for which he was condemned to two hundred lashes and six years in the galleys.[1520]

Towards the close of its career the Inquisition seems to manifest a disposition to relax somewhat in its rigidity. In 1815 the Madrid tribunal referred to the Suprema a petition from Doña Manuela Osorno to be permitted to see her husband, Don Vicente Lema, then in its prison. The answer was that, after he had completed his declarations, she might be allowed to see him once or twice a week, in the presence of an inquisitor, but only to confer on their domestic affairs. To this tendency may also be attributed the leniency shown to Alfonso González, barber of the tribunal of Murcia, who made use of his position to convey letters and paper to Francisco Villaescusa, a prisoner, and who was benignantly treated with a reprimand and disability to hold office under the Inquisition.[1521]

A necessary feature of the prohibition of communication was that prisoners were debarred from the use of writing materials, except under the strictest supervision. Some use of them was unavoidable, when drawing up a defence or a petition to the tribunal, opportunity for which was never refused, but they were required to apply to the inquisitors for paper, stating the number of sheets wanted, when these were carefully numbered and rubricated by the secretary, at the upper right-hand corner, and were required to be scrupulously returned, so that there could be no withholding of any for another purpose. This device was prescribed by the Suprema in 1534 and remained the invariable rule.[1522] Thus when Fray Vicente Selles, in Valencia, at an audience of June 27, 1692, asked for two sheets of paper and, on June 30th, returned one and a half in blank, saying that what he had written on the other half-sheet was false and he had thrown it into the filth, he was made to fetch it, filthy as it was.[1523] Whatever quantity a prisoner asked was given to him, and some consumed paper by the quire--indeed, Fray Luis de Leon relieved the tedium and anxiety of his four years' imprisonment at Valladolid by writing his classical devotional work, the "Nombres de Cristo."

* * * * *

While, as we have seen, great care was taken to prevent prisoners from communicating with each other, it by no means follows that confinement was solitary. As a general rule it was regarded as preferable that male prisoners should be alone, and that women should have companionship, but there could be no hard and fast line of policy followed, except that accomplices and negativos (those who denied the accusation) should not be placed together. Husband and wife were thus always separated but, when occasion required, there was no hesitation in crowding four or five persons together and, in the careless confidence of common misfortune, this often opened a valuable source of information, for there never seems to have been any scruple in betraying that confidence in the hope of winning favor by reporting to the tribunal the compromising utterances of cell-companions. The object in keeping apart those who were accomplices was to prevent their encouraging each other in denial and agreeing on a common line of defence. Men who were confined by themselves sometimes asked for a companion and women more frequently did so.[1524]

[Sidenote: REGULATIONS]

It was impossible that discipline should be uniform at all times and places and we sometimes find it exceedingly lax. It infers great looseness when, in 1546, the Suprema felt it necessary to enjoin care in permitting prisoners freely to visit each other and, in the trial of Isabel Reyner at Toledo, in 1570, we find her stating, in an audience, that in passing through the prison she saw a fellow-prisoner who informed her that her husband and Estevan Carrier were also prisoners, and who asked her why she was imprisoned.[1525] In fact, as we gather from chance allusions in the trials, there must have been a certain freedom of movement. In the case of Benito Ferrer, in 1621, at Toledo, there was an investigation as to his sanity, in which the alcaide spoke of his going regularly to the cistern for water and cooking his food like the rest, while the assistant described taking him to the latrines when desired. From the trial of Jacques Pinzon, in Granada, in 1599, we learn that, in the morning, the alcaide brought the prisoners water and returned after mass with their food; the mention of a pan to hold ashes shows that they had fire, and we hear of pots, spoons and other utensils.[1526] There was evidently a diversity of routine in the different tribunals and when Valdés, in 1562, was obliged to order that prisoners were not to go for their rations, because they met the servants of the purveyor, and that the alcaide must receive the food and carry it to the cells, it argues that, in some tribunals at least, a considerable freedom of movement had existed.[1527]

In 1662, a minute code of instructions for the alcaide shows us what at that time were the regulations. On rising in the morning, he is to visit all the cells and see how the prisoners are; he is to examine carefully for openings through which they may communicate with each other; doors are to be carefully closed and he is not to leave with the prisoners knives, cords or scissors--if scissors are needed, he is to stay while they are used and take them away. He is not to give them books to read without permission of the inquisitors. Rations are served twice a week--on Sundays and Thursdays--and, on the afternoon previous, he is to see each prisoner, ascertain what he wants, and set it down in a book so that the purveyor may provide it. Every nightfall he is to examine the cells to guard against attempts to escape, searching under the pillows for articles that would assist flight, or for writing materials. Prisoners able to cook their food will do so in a brasero; for those who cannot, the cooking is done by an appointee of the tribunal.[1528] All this shows a commendable desire to avoid unnecessary harshness, yet the regulations enforce one hardship which appears to have been universal at all periods after the earliest--the prohibition of lights, a severe infliction for, in the obscurity of their cells, the hours of darkness must have seemed interminable. It is probable that at first this was not the rule for, in 1497, in Valencia, there is an item of 7s. 4d. for lights, in the account of the expenses of Alonso de Roman, who had lain in the secret prison for nine months and nine days.[1529]

Of course, in the general venality of the period, prison officials were not always inaccessible to bribery, and money could procure relaxation of the rules but, when detected, it was visited with a severity not often shown to delinquent officials. This is illustrated by a case in Toledo, in 1591, when judicious liberality procured unlawful privileges, such as having cell doors open, allowing communications and other similar indulgences. Francisco Méndez de Lema, the alcaide, attempted flight, but was caught and sentenced to a hundred lashes, galley-service, exile and deprivation of office. His cousin and assistant, Miguel de Xea, confessed partially and was tortured without extracting more; he escaped with dismissal, disability for office and four years of exile.[1530]

There was one regulation which bore with especial severity on the innocent, while it was a matter of indifference to the heretic. This was the deprivation of all religious consolation during the period, often prolonged for years, of incarceration. It is difficult to understand this in the professors of a theology which teaches the infinite importance of the sacraments as aids to spiritual development as well as to salvation, especially when so large a portion of the prisoners were good Catholics tried on charges which did not infer formal heresy. Possibly it may be explained by the customary assumption of the guilt of the accused, who had thus incurred ipso facto excommunication, and the Spanish Inquisition had the example of the Roman, whose prisoners were similarly not allowed to receive the sacraments or to hear mass.[1531] Yet the great canonist Azpilcueta, whose attention was probably drawn to the matter by the case of his client Carranza, thus deprived of the sacraments for eighteen years, tells us that there is no law justifying the Spanish Inquisition in this, though perhaps it may have special authority and also good reasons. To him, however, it appeared that the sacraments would soften the hearts of prisoners and lead them to confess, while it was cruel to leave them exposed without defence to the assaults of the demon during the many years of their captivity.[1532] Yet the refusal was absolute. Fray Luis de Leon, after three years of imprisonment, pleaded earnestly for the sacraments, but the only reply of the Suprema to his petition was to tell the Valladolid tribunal to finish the case as soon as convenient.[1533]

[Sidenote: SACRAMENTAL CONFESSION]

While the sacraments were denied, sacramental confession was allowed, though of course the priest could not grant absolution. The earliest allusion I have met to this is an order by Cardinal Manrique in 1529, and, in 1540, formal instructions were issued that, when a prisoner asks for a confessor, if the case admits of it, a proper person should be given to him.[1534] This privilege was somewhat abridged by the elaborate provisions of the Instructions of 1561, which are framed to turn it to advantage. If a prisoner in good health asks for a confessor, it is safer not to grant the request, unless he has confessed judicially and has satisfied the evidence. But, as he cannot be absolved for heresy until reconciled to the Church, such confession is not of full effect unless he is in the article of death or a woman in the peril of child-birth, in which case the canon laws are to be observed. If a sick man asks for a confessor he shall have one, who shall be sworn to secrecy and to reveal to the tribunal any commission entrusted to him, if it is outside of confession, and to refuse it if within confession; the inquisitors shall instruct him to tell the prisoner that he cannot be absolved, if guilty, unless he confesses judicially. If his judicial confession satisfies the evidence, he is to be formally reconciled before he dies and, when judicially absolved, the confessor shall absolve him sacramentally when, if there is nothing to prevent it, he may receive Christian burial, as secretly as possible. If a sick man does not ask for a confessor and the physician is apprehensive of the result, he must urge him in every way to confess.[1535] The advantage thus afforded by the confessional is illustrated in the trial for Judaism of Ana López, at Valladolid, in 1637. She had denied, but was taken sick and declared by the physician to be in danger. To the confessor she admitted that, at the age of seventeen, she was taught Judaism, that she subsequently returned to the true faith until, on coming to Valladolid, a woman perverted her. The confessor warned her that she must confess judicially; she authorized him to report her confession and he absolved her sacramentally. An inquisitor with a notary went to her cell, when she repeated her confession and gave the name of the woman who had perverted her, and, on her recovery, her trial was resumed when she confirmed her confession.[1536]

It is the kindly rule of the Church that absolution is never to be refused to the dying; he is to be saved from hell and can settle the account of his sins in purgatory, or by an indulgence or a mass on a privileged altar. With this the Inquisition did not interfere, as its professed object was the saving of souls and it even, by a carta acordada of 1632, permitted communion to dying heretics who had confessed judicially and satisfied the evidence. It required, however, the wafer to be consecrated in the tribunal, if there was time; if the haste was extreme, it could be brought from the parish church, but without pomp or procession.[1537] Even the veneration due to the Godhead had to yield to the secrecy which forbade it to be known that a prisoner was dying in the Holy Office. In the same spirit, when a prisoner died without reconciliation, the alcaide reported it to the inquisitors, who ordered the secretary to identify the body and bury it secretly.[1538] It was thrust into a hole, without his family knowing his fate until, if his trial was unfinished, his heirs would be summoned to defend his fame and memory or, if it had reached a point where sentence could be pronounced, they saw his effigy reconciled or burnt in an auto de fe. Even when he had confessed and been reconciled on the death-bed, we have just seen that his Christian burial was to be as secret as possible. When the trial ended in acquittal or suspension, if he had property sequestrated, the lifting of the sequestration would announce it to the heirs; otherwise, it does not seem that there was any provision for their notification. Suicide in prison, which was not infrequent, was regarded as conclusive proof of impenitence, even if the prisoner had confessed and professed repentance, but his heirs were allowed to defend him on the score of insanity, failing which he was burnt in effigy.[1539]

[Sidenote: FEMALE PRISONERS]

Sickness was of frequent occurrence and was treated with creditable humanity. The Instructions of 1561 require that the sick shall have every care and that whatever the physician deems necessary for them shall be provided.[1540] Of course the fulfilment of this command must have varied with the temper of the tribunals, but nevertheless the spirit dictating it is in marked contrast with the conduct of the gaols of the period. When cases transcended the resources of the Inquisition, the ordinary course was to transfer the patient to a hospital, in disregard of the cherished secrecy of the prison. Instances of this are common enough in the records and a single case will suffice for its illustration. November 6, 1641, Juan de Valdés, on trial for bigamy in Valladolid, asked an audience to beg for despatch as he was very sick. This was confirmed by the alcaide and by the physician, who said that for nineteen days he had had a tercian and was too weak to be bled, and moreover he was suffering from stone and strangury; that he could not be cured in the prison and should be removed to a hospital. This was done, the hospital authorities being notified not to allow him to escape and to keep the tribunal advised of his condition. In January, 1642, he was reported as being still in mortal danger, but he recovered, was returned to the secret prison, and was sentenced on August 21st.[1541]

* * * * *

The care of female prisoners was naturally a subject of some perplexity, especially as the refinement of matrons and women assistants was unknown to the Inquisition. When the Instructions of 1498 order that the prison for men and for women shall be separate,[1542] it does not infer that previously they had been herded promiscuously together, but that in future distinct quarters should be provided for the sexes--a provision which was not observed, as it was deemed sufficient that women should be confined separately so that there could not be communication between them and the men. The condition of helpless women, virtually at the mercy of their male attendants, in the secrecy which shrouded everything within the prison walls, can readily be imagined, and there must have been outrages coming to the knowledge of Ximenes, in 1512, that aroused him to a sense of the dangerous opportunities existing, for in that year an order was issued threatening death to any attendant who should have intercourse with a female prisoner.[1543] The severity of the penalty measured the gravity of the necessity calling for it, but, like so many other salutary provisions, the tribunals were too merciful to enforce it on their subordinates. In 1590, Andrés de Castro, alcaide of the Valencia prison, was tried for seducing a female prisoner, kissing and soliciting others, allowing communications between prisoners and accepting bribes from their kindred. There were twenty-nine accusing witnesses; he denied the charges but virtually admitted their truth by breaking gaol. On his recapture, for this complicated series of offences he escaped with a hundred lashes, three years in the galleys, perpetual exile from Valencia, and disability for office in the Inquisition--a sentence which, when compared with the habitual severity of the tribunals, shows how lightly his sexual crime was regarded by his judges.[1544] It was not that the death-penalty had been abrogated, for we find it repeated, in 1652, in the Logroño instructions to alcaides.[1545] Doubtless the rule mentioned above, that women should be gathered together in their cells, was designed to afford them protection against their gaolers.

In the not unusual case of the arrest of pregnant women, due consideration was given to their condition, and suitable temporary accommodation was found for them, during confinement, outside of the prison. Thus, in the case of María Rodríguez, in the tribunal of Valladolid, who was arrested June 3, 1641, the delay in presenting the accusation, until September 16th, is explained on the record by her being pregnant and removed from the prison until she recovered.[1546] This was an improvement on the earlier practice, if we may believe the Llerena memorial of 1506, which states that women in the throes of child-birth were denied all assistance, even that of a midwife; they were abandoned to nature and many had perished in consequence.[1547]

* * * * *

[Sidenote: HUMANE REGULATIONS]

It was not only in the general prescriptions of the Instructions that regard for the welfare of the prisoners is manifested. Special orders issued from time to time as to details are animated by the same spirit. Thus, in 1517, Cardinal Adrian told the Sicilian inquisitors (in a letter probably addressed to all the tribunals) that they must pay particular attention to the qualities requisite in the gaoler; they must sedulously bear in mind that the prison is for detention and not for punishment; the prisoners are to be well treated and not be defrauded in their food, for which ample provision must be made; the prison must be inspected every Saturday, by one of the inquisitors, and not fortnightly as provided in the Instructions; those of the prisoners who have trades are to work and thus contribute to their support and, if the officials give the women sewing to do, they must be paid.[1548] An extract made, in 1645, from a book of instructions which was read annually in the tribunals, shows that this praiseworthy care for the welfare of the prisoners was the permanent policy of the Inquisition. It prescribes the utmost punctuality in inspecting the cells every fortnight and learning what the inmates desire, reporting this to the tribunal, which decided what each one should have and, if there was a surplus in the allowance for rations from which it could be procured, the alcaide was at once to be ordered to see that the purveyor bought it; if he neglected anything he was to be reproved for the wrong committed in his lack of punctuality. Special attention was called to serving the rations in the morning, so that the prisoners could prepare their midday meal. Meat was to be given daily, and only one day's rations at a time in hot weather, lest it should spoil; in cool weather, two days' supply; and this was so important for the health of the prisoners that it should be the special charge of some one, while an inquisitor ought occasionally to look to it.[1549]

All this is admirable in tone and spirit; unfortunately its execution depended on its enforcement by the inquisitors, on their regular performance of inspection, and on holding the gaolers responsible by rigorous punishment for derelictions. The duty of inspection by inquisitors had been prescribed as indispensable by the Instructions of 1488, but it was impossible to make them obey and complaints of their negligence are frequent. In 1632 it was found necessary to reissue the Instructions of 1488; in 1644 we have the testimony of a contemporary that, in some places at least, it was regularly, if perfunctorily, performed and the Logroño instructions of 1652 make it the duty of the alcaide to remind the inquisitors of it every fortnight, because it is customarily forgotten.[1550] The other requisite, severity of punishment for derelictions, was also lacking, through the customary tenderness shown to delinquent officials.

It would be manifestly unjust to condemn as a whole the management of the prisons: it would be equally unwarranted to praise them indiscriminately. Everything depended on the conscientious discharge of duty by the inquisitors and no general judgement can be formed as to the condition of so many prisons, during three centuries, except that their average standard was considerably higher than that in other jurisdictions and that, if there were abodes of horror, such as have been described by imaginative writers, they were wholly exceptional. There were good and there were bad. The memorials of Llerena and Jaen, in 1506 describe them as horrible dens, overrun with rats, snakes and other vermin, where the wretched captives sickened in despair and were starved by the embezzlement of a large portion of the moneys allowed for their support, while no physician was permitted to attend the sick and the attendants maltreated them like dogs.[1551] Making allowance for rhetorical exaggeration we can imagine that this description was applicable to Córdova under Lucero. Matters seem to have been not much better at Seville in 1560, where the oppression of the alcaide, Gaspar de Benavides, provoked a despairing revolt in which his assistant was mortally wounded. Vengeance was wreaked on the participators in the fray, of whom one was burnt alive and another, a boy of fourteen, had four hundred lashes and was sent to the galleys for life, while Gaspar, who had provoked it, was let off with appearing in an auto de fe, forfeiture of wages and perpetual banishment from Seville.[1552]

[Sidenote: VARIABLE TREATMENT]

When malfeasance in office escaped with such ill-judged leniency, it was impossible to maintain discipline and the prisoners suffered accordingly. As the result of an inspection of Barcelona by Doctor Alonso Perez, the alcaide Monserrat Pastor is scolded, in 1544, for keeping a mistress in his house, for placing a kinsman in charge of the prison and absenting himself, for receiving presents from discharged prisoners, for frequent absence, leaving the prison unguarded, for combining the incompatible positions of gaoler and dispensero, and of making the women prisoners work and taking their earnings, but Pastor was only reprimanded and ordered to restore the presents and the women's earnings. Virtual immunity invited continuance of abuses and, in 1550, after another inspection, we find the Suprema again adverting to the evil results of combining the functions of gaoler and dispensero and ordering the inquisitors to fill the latter position.[1553]

The prison of the Canary tribunal at times seems to have been equally mismanaged. An Englishman named John Hill was brought there from Ferro, June 23, 1574, with nothing but his clothes and no money. For nine months his complaints were loud and frequent; a day's ration was insufficient for a single meal; he begged for more bread and water, also for a mat to lie on, as he had to sleep on the ground and he could not rest for the lice and fleas; for more than two months he prayed for a shirt to cover his nakedness and, though an order was issued, January 22nd to give him one, it had to be repeated February 18th. Even as late as 1792, Don Juan Perdomo complained that for fourteen months the alcaide had kept him on a diet of salt fish, that he would allow him to change his linen but once a fortnight, and that he caused him to suffer such torment from thirst that he would go into the court-yard and cry aloud, hoping that some passer-by would summon the alcaide.[1554]

Yet other passages in the Canary record show a praiseworthy desire to alleviate the rigors of confinement and in general it may be said that the condition of the prisoners depended wholly on the temper and character of the officials in charge. When these were kindly, the prisoners were spared unnecessary hardships. Francisco Ortiz, in 1529, at Toledo, bore willing testimony to good treatment which he had not anticipated.[1555] In 1563, Fernando Díaz, a peasant, after a month's detention in Toledo, speaks of improved health; here, he says, he has mutton to eat, while at home he had only sardines.[1556] In 1567, a member of the Suprema, visiting the prison of Valladolid, was told by Leonor de Cisneros that she had nothing to complain of; she had mutton and bread and wine and fruit and was well treated.[1557] As she was a relapsed, whose husband had been burnt eight years before, she probably had no property and the expense was defrayed by the tribunal.

These are by no means isolated instances. In 1541, at Toledo, Juan García, a day-laborer on trial, after six weeks in prison, asked that night-clothes be given to him as to the other prisoners, as he was obliged to sleep in the garments worn during the day, when the inquisitor at once ordered him to be supplied.[1558] In 1657, the accounts of the tribunal of Madrid show 447-1/2 reales spent on clothing for a poor prisoner and those of the Suprema, in 1690, have an item of 688 reales devoted to the same purpose.[1559] We have seen that warrants for arrest ordered beds to be brought with the prisoner, as the Inquisition did not furnish them, in accordance with an order of 1525, which assumes that this was to relieve the hardships of those brought from a distance.[1560] Yet, even in the financial pressure of the seventeenth century, we find in the accounts of the Madrid tribunal, in 1659, an order, July 11th, to the receiver to pay 230 reales for the hire of beds for poor prisoners up to July 15th.[1561] Even more noteworthy are some entries arising from the trial in Madrid of Francisco de Matos, in 1680-81. He seems to have had five children for whose support was spent, in about a year from September, 1680, 3519 reales, of which 1284 were paid to the Hospicio Real de Pobres for its care of three of them during sickness.[1562] The tribunal evidently felt itself obliged to take care of the helpless children, and such incidents serve to show that, when the inquisitors had humanitarian instincts there was nothing in the policy of the Holy Office to prevent their full manifestation.

* * * * *

[Sidenote: EXPENSES]

It is remarkable that, during the period of most active work, there seems to have been no general settled system of defraying the maintenance of prisoners. There is no provision for it in the instructions of 1484, but in Torquemada's supplementary orders of December, the receivers were required to pay the expenses.[1563] Yet we have seen that immediately after this the alguazil was in receipt of a salary equal to, or more than, that of the inquisitors because, as Ferdinand said, he had to meet the great charge of the prisoners--"tiene tan gran costo con los presos"--and, as we find this in the salary lists of Saragossa, Burgos, Medina del Campo and Seville, it would seem to be a general rule, while the Instructions of 1498 appear to show it still in force.[1564] Yet the accounts of the Valencia tribunal, in 1497-8, indicate that the maintenance of those who had property was drawn from the sequestrations while the "pobres miserables presos en las carceles" were supported by outside friends or kindred, who were subsequently reimbursed by the receiver. The per diem was 9 dineros for men and 8 for women, while Ali Divit, a Moor and presumably abstemious, was reckoned at 5.[1565]

A letter of Ferdinand, in 1501, authorizing the receiver of Sardinia to include among his disbursements the cost of maintaining prisoners, would indicate that this was becoming the rule, but another letter of the same date calling for reimbursement to Anton López, a yeoman of his guard, who had been ordered by an inquisitor to support certain prisoners, shows that no definite system was as yet established.[1566] These irregular methods afforded opportunity for embezzlement and extortion, resulting doubtless in much suffering among the captives. The memorials of Llerena and Jaen, in 1506 complain of conspiracy among the officials to cut down the rations, and that only 10 maravedís a day were allowed, from which 2 were deducted for shaving, linen and cooking, when 25 or 30 were required, at current prices, for bread alone.[1567]

At length the alcaide or gaoler appears as the official handling the funds when, in 1510, Ferdinand ordered Villacis, the receiver of Seville, to pay him 5000 maravedís because he had fed the prisoners during a time of pestilence.[1568] This was evidently an exceptional case, arising from an emergency, but it was adopted, in 1516 and 1517, in some instructions of the Suprema to the tribunal of Sicily; where there were sequestrations, the amount was to be drawn from them; in cases of extreme poverty the cost of a moderate diet could be defrayed by the receiver from the confiscations.[1569]

Nearly forty years had passed since the founding of the Inquisition--years of intense activity--and as yet no regular system had been adopted in a matter so important. The necessity was felt and, in 1518, an order was issued in the name of Charles V, which shows that the kindred or friends of the prisoner had been expected to bring his food to the prison. The order recites that, as they come from all parts of the district and are far from their families and property, they suffer greatly. Therefore, in the case of non-residents of the city, the receiver is to pay for food and necessaries, under instructions from the inquisitor. An account is to be kept with each prisoner and, if he is discharged, he shall repay the receiver before his sequestration is lifted; if he is poor, he shall not be asked for it and the auditor shall pass the item in the receiver's accounts.[1570] The liberality of this clause seems to have been a novelty, and it took some time to establish the duty of the Inquisition to prevent its poor prisoners from starving, for we find the queen-regent, in 1531, authorizing their maintenance, at Barcelona, at the expense of the fisc.[1571]

[Sidenote: RATIONS]

Yet this was not held as relieving the family from supporting, as far as possible, an imprisoned member. The account of the dispensero or steward, of the Valencia prison, from October 8, 1540 to May 5, 1541, shows that during that period there were twenty-five prisoners thus supported, at least partially, husbands paying for wives, wives for husbands, sons for fathers, etc. The sums received were small and suggest the struggle endured by families to contribute to the necessities of those in gaol; they were paid in trifling amounts of from 5s. 5d. to 8s. 8d., representing probably a monthly assessment, and this was by no means continuous for, in eight cases, only one payment is recorded and in only one case is there more than two payments. For the whole period the aggregate is only 15 libras 19s. 4d., while during this time the steward obtained from the receiver 120 libras 2s., which probably included what the fisc had to pay and what was drawn from the sequestrations of the wealthier prisoners.[1572] With regard to the latter, the rule was to sell the personal property first and then the real estate, and inquisitors were urged, in 1547, to be prompt in collecting from the proceeds, as the sequestrations were apt to be consumed in supporting the family, leaving nothing to repay the fisc for its advances.[1573]

It was the duty of the inquisitor, when a prisoner was brought in, to ascertain, from the receiver and notary of sequestrations, his station in life and his wealth, and to fix the amount of his allowance in accordance with the current prices of provisions, but a wealthy man could spend more if he chose and, if a person of quality wished to have one or two servants incarcerated with him, as in the case of Carranza, this was permitted; what might be left over from their table was to be given to the poor and not to be made a source of profit to the alcaide and dispensero.[1574] There was liberality in this as, in case of confiscation, the estate was diminished by the extra expenditure. Even the ordinary allowance was at the disposition of the prisoner, who could economize on it and spend it in any manner that he chose.[1575]

Thus there never was at any time a fixed and absolute ration, although of course there was a general minimum standard for the poor who had to be supported. Whatever it was, it was liable to alteration as circumstances might dictate. After Jacques Pinzon was imprisoned in Granada, February 25, 1599, on March 9th the alcaide reported that he consumed in one day the ration of two and was dying of hunger, whereupon the inquisitors kindly increased his allowance to a real per day; this kept him quiet for three months, when there was a fresh complaint and 5 maravedís were added.[1576] In 1616, Padre Hieronimo de la Madre de Dios, tried for mysticism, sought his first audience to complain that his ration was insufficient; he wished it increased by a real a day, which could be charged to his sequestrated property.[1577] Evidently prisoners did not hesitate to make their wants known and there was readiness to listen to them.

With the gradual concentration of power in the Suprema it came to regulate this in all the tribunals. In 1635 Valencia reported that, in consequence of the dearness of bread, the prisoners were suffering from hunger, and it asked authority to increase the ration. The Suprema deliberated for five weeks and then ordered an increase to be made "with great compassion." The close supervision exercised is indicated, in 1695, in a criticism on a monthly report from the same tribunal, in which one of the omissions noted is that the ration assigned to each prisoner is not stated.[1578]

The fall in the purchasing power of money, and especially of the debased vellon coinage, necessitated an increase in the ration. In 1641, at Toledo, the ordinary daily allowance was 1-1/2 reales which, by 1677, had doubled to 3 reales.[1579] In Valencia, the ordinary ration had increased to 22 dineros in 1688 and, in 1756, to 2 sueldos.[1580]

[Sidenote: COLLECTION OF COSTS]

When the prisons were full and the trials, after the first hurried rush, grew more and more protracted, the expense of maintenance was not small, as can be gathered from occasional indications. Thus, in 1566, we find the Suprema ordering its alguazil mayor to remit to the tribunal of Calahorra 400 ducats to defray the food of prisoners.[1581] In 1586, Benito Sanguino, the receiver of Valencia, in settling his accounts, claimed credit for 19,856s. 11d. paid to the dispensero for the maintenance of poor prisoners, in addition to what he had disbursed for the purpose on the orders of inquisitors, an irregularity for which the Suprema demanded an explanation.[1582] Some light is thrown on the way in which these costs accumulated by the case of Fray Lucas de Allende, guardian of the Franciscan convent of Madrid and one of the dupes of Lucrecia de Leon, a beata revelandera. When arrested in 1590, his brother, Alonso de Allende, asked permission to give him an allowance of a real a day--a request which proved costly, as the trial lasted for six years and two months.[1583] In 1659, the orders given by the tribunal of Madrid, for the food and incidentals of its poor prisoners, who seem to have averaged about ten in number, reached an aggregate of 12,874 reales and, in 1681, the amount was 25,748.[1584] As the activity of the Inquisition diminished, and perhaps also as its resources fell short, this drain on its finances was greatly reduced. In a statement of the expenses of the Valencia tribunal, from 1784 to 1790 inclusive, the charge for maintenance of poor prisoners becomes trifling. The total expenditure during these seven years was 501 libras 18s., of which 300 libras 8s. were recovered from the parties, leaving a net outlay of 201 libras 10s., or less than 30 libras per annum.[1585]

The tribunals were unrelenting in the collection of these expenses from all who could be held responsible. In the case of frailes, who could own no property, their communities were liable. Thus, in 1649, the tribunal of Valencia issues an order to collect, from the Provincial of the Augustinians, 600 reales for certain members of his Order who were in its prison. When the trial of Fray Estevan Ramoneda was concluded, September 12, 1696, the Barcelona tribunal rendered to his Order of Merced a bill of 730 reales for his expenses. The Provincial assessed it on all the Mercenarian converts of Catalonia and, on November 15th, the inquisitors scolded the prior of the Barcelona convent for delay, when he replied that his convent had paid its share but that others were dilatory. In 1709, the Suprema issued an order that there must be no exceptions, even to the Barefooted Franciscans, showing that they had been endeavoring to procure exemption.[1586]

The Inquisition was not likely to be more lenient with the laity. Its determination to secure reimbursement is seen in an order of the Valencia tribunal, in 1636, that when Francisco Morales completes the term of galley service to which he has been condemned, he is to be sold to his neighbors to repay what he has cost to the fisc.[1587] These costs were not simply for maintenance in prison, but for expenses attending arrest and trial, including the fees of advocate and procurator and all postage incurred. The whole of this was a first lien on the property of the prisoner and, if he was a filiusfamilias, his father was liable and could be forced to pay.[1588] Before an auto de fe, the dispensero and notary of sequestrations carefully made up the account of every penitent who escaped confiscation, and it was the duty of the fiscal to see that, if he had property, he settled or gave an obligation to settle and, if he was poor, that he took an oath to pay whenever he should be able.[1589] How these accounts were swelled is visible in that rendered by the Barcelona tribunal, in 1756, to Don Antonio Adorno, a soldier of gentle blood in the regiment of Asturias. He was only fifty-eight days in prison which, at 2 sueldos a day, amounted to a little less than 6 libras, but the aggregate of the bill was 26. He subscribed his name to this as accurate, stating that he had no property with which to meet it, but that, if God should grant him better fortune, he obligated himself to pay it to the receiver or his duly authorized representative. As his sentence was banishment from the Spanish dominions, this was a pure formality, but it could not be omitted.[1590] A few months later we have a piteous letter from Dr. Agustin Tamarit, a physician of the town of Salas, whose enemies had involved him with the Inquisition, resulting in a charge against him of 5 libras 16s. In reply to a demand for payment he protests that he is miserably poor. During his enforced absence, his colleague, Dr. Rubert, had collected from the town the conducta, or stated salary due to both, and refuses to pay over his share; if the tribunal will compel Rubert to settle he will endeavor to sell some wheat and satisfy the account.[1591]

* * * * *

On the whole we may conclude that the secret prisons of the Inquisition were less intolerable places of abode than the episcopal and public gaols. The general policy respecting them was more humane and enlightened than that of other jurisdictions, whether in Spain or elsewhere, although negligent supervision allowed of abuses and there were ample resources of rigor in reserve, when the obstinacy of the impenitent was to be broken down. The one unpardonable feature was the seclusion which kept the unhappy captive ignorant of all that occurred outside of his prison walls and deprived him of facilities for defence and of communication with family and friends. This rendered doubly bitter the prolonged detention which often held him for years in suspense as to their fate and deprived them of all knowledge as to him.

V. EVIDENCE

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

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

[Sidenote: WITNESSES FOR PROSECUTION]

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

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

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

[Sidenote: WITNESSES FOR DEFENCE]

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

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

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

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

* * * * *

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

[Sidenote: EXAMINATION OF WITNESSES]

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

* * * * *

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

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

[Sidenote: EXAMINATION OF WITNESSES]

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

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

* * * * *

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

[Sidenote: RATIFICATION]

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

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

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

[Sidenote: RATIFICATION]

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

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

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

* * * * *

[Sidenote: SUPPRESSION OF WITNESSES' NAMES]

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

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

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

[Sidenote: SUPPRESSION OF WITNESSES' NAMES]

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

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

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

[Sidenote: CONFRONTATION]

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

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

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

* * * * *

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

[Sidenote: FALSE-WITNESS]

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

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

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

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

[Sidenote: FALSE-WITNESS]

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

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

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

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

[Sidenote: FALSE-WITNESS]

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

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

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

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

[Sidenote: FALSE-WITNESS]

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

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

* * * * *

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

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

[Sidenote: CHARACTER OF EVIDENCE]

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

* * * * *

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

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[Sidenote: CHARACTER OF EVIDENCE]

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

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

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

[Sidenote: CHARACTER OF EVIDENCE]

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

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

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

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