Chapter VIII: The Trial (2)

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

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

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

[Sidenote: _THE DEFENCE--INSANITY_]

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

[Sidenote: _THE DEFENCE--INSANITY_]

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

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

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

* * * * *

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

[Sidenote: _EVIDENCE FOR THE DEFENCE_]

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

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

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

[Sidenote: _EVIDENCE FOR THE DEFENCE_]

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

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

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

[Sidenote: _THE DEFENCE_]

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

* * * * *

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

* * * * *

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

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

* * * * *

[Sidenote: _EXAMINATION OF THE ACCUSED_]

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

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

* * * * *

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

[Sidenote: _THE CONSULTA DE FE_]

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

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

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

[Sidenote: _DELAYS_]

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

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

* * * * *

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

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

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

[Sidenote: _DELAYS_]

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

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

[Sidenote: _DELAYS_]

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

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

* * * * *

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

[Sidenote: _PROSECUTION OF THE DEAD_]

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

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

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

[Sidenote: _PROSECUTION OF THE DEAD_]