Chapter VIII: The Trial (3)

Notwithstanding the massing of cases in the citations and sentences, the formalities of the somewhat cumbrous procedure were duly observed. The trials were not speedy, but, as large numbers were in progress together, only the scantiest attention could be paid to each and the result was a foregone conclusion. A single case will illustrate the process. At Ciudad Real, August 8, 1484, the fiscal is recorded as appearing and saying that he desires to proceed against certain deceased persons and among them Beatris González. He asks the inquisitors to issue their letters of summons, citation and edict, so that the children, heirs, kindred and others who wish to defend their bodies and bones, their fame and property, may appear. The same day the edict is issued, directed to the representatives of Beatris and two others, some of the kindred addressed being named and others included under the generalization of parties interested. The edict recites that the fiscal is about to accuse Beatris and the others of Judaism, and asks to have them summoned in defence, wherefore they are cited to appear within thirty days after the edict is read to them, or before their house-doors, or published in the public square, or read in the church of San Pedro and affixed to one of its doors; if they come, they will be heard with the fiscal, and justice will be rendered; if they do not appear, the fiscal will be heard and the case will go on without them to the end. The thirty days constituted three terms of ten days each, at the end of each of which the fiscal appeared before the inquisitors and accused the _rebeldia_ or contumacy of the parties cited and, at the end of the third, on September 6th, he presented the accusation, a copy of which was ordered to be given to the children, with nine days in which to answer it. At the expiration of this time, on September 14th, the fiscal accused the further rebeldia and concluded; the inquisitors received the case to proof and assigned thirty days for it. On October 20th, the fiscal presented four witnesses, who were separately and secretly examined by the inquisitors, the testimony consisting of the usual details of observing the Sabbath by lighting candles and wearing clean linen, with an intimation of having chickens killed by decapitation. Then followed an interval, until January 18, 1485, when the fiscal asked for publication of evidence. The inquisitors granted this, ordering copies given to him and to the children if they ask for it, and assigning a term of six days for concluding. On January 24th the fiscal accuses the persistent rebeldia and concludes; the inquisitors hold the children to be contumacious and conclude the case, assigning for sentence the third or any following day. All this was in preparation for the great auto de fe of March 15th, where the sentence was read, condemning in mass a large number of the dead, confiscating their property and ordering their bones to be dug up and burnt.[225] This was the procedure under which thousands of the dead were condemned and their properties seized from the existing owners; the forms of justice were comfortably preserved; no heirs or children ventured to appear in defence, and the condemnation might as well have been pronounced at the beginning.

This facility offered temptations to act on insufficient evidence and occasionally, when persons of importance were concerned, there was a contest, as at Saragossa where, on March 10, 1491, the fiscal presented his _clamosa_ against a number of the dead, whose representatives defended them with persistent energy until December, 1499, when there were eight condemnations and three acquittals.[226] Some check on the abuses inevitable to the system was attempted, in the reformatory Instructions of 1498, which order that no prosecution of the dead is to be commenced unless there is proof sufficiently complete for condemnation; the practice of suspending cases where proof is imperfect is prohibited, in view of the hardship endured by the heirs, who are unable to marry or to dispose of their property and, under such circumstances, acquittal is ordered. Procrastination and delay are also forbidden, and cases must be determined speedily.[227]

[Sidenote: _PROSECUTION OF THE DEAD_]

Sequestration under these circumstances inflicted great suffering until, as we have seen, in the Instructions of 1561, it came under the general prohibition of sequestrating property in the hands of third parties. By this time, prosecution of the dead had shrunk to an inconsiderable part of inquisitorial business, and this may possibly account for other ameliorations in procedure. The preliminary necessity of sufficing proof was insisted upon; pains were to be taken to ascertain whether there were descendants, so as to cite them in person; no one who appeared as a defender was to be refused, even though he might be a prisoner on trial, who could empower a representative; if no defender appeared, the inquisitor was to appoint a skilful and sufficient person, who was not an official of the tribunal.[228] By this time, also, another rule had established itself which diminished the number of prosecutions--that they could only lie for formal heresy. Crimes involving suspicion of heresy, such as fautorship, receiving and defending heretics and many others, were excluded, for the reason that suspicion, however violent, was held to be extinguished by death.[229] It was also generally admitted that stronger proof was required for prosecution of the dead than of the living because, as Rojas explains it, _semiplena_ or half-proof, suffices for the latter--apparently alluding to the fact that the dead could not be tortured.[230]

If they could not be tortured, so neither could they save themselves from relaxation by confession and abjuration. This naturally resulted in burning in effigy, except in the case of death during trial, when, if the prisoner had manifested repentance and sought readmission to the Church, his effigy was solemnly reconciled in the auto de fe, nor does this somewhat grotesque ceremony appear to have aroused a sense of incongruity. Death in prison, as we have seen, was by no means infrequent and, as the cases when once commenced were continued to the end, they furnish, during the later period, a considerable portion of the prosecutions of the dead. Suicide in prison was held to be confession of guilt and pertinacity.

The sentence pronounced on the dead was even more impressive than that on the living. It declared him to have lived and died a heretic, his memory and fame were condemned and his property was confiscated. "And we order that, on the day of the auto, an effigy representing his person shall be placed on the scaffold, with a mitre of condemnation and a sanbenito bearing on one side the insignia of the condemned and on the other a placard with his name, which effigy, after the reading of this our sentence, shall be delivered to the secular arm and justice, and his bones shall be disinterred, if they can be distinguished from those of faithful Christians, and be delivered to the said justice to be publicly burnt, in detestation of such great and grievous crimes. And, if there is any inscription on his tomb, or if his arms are anywhere displayed, they shall be erased, so that no memory of him shall remain on the face of the earth, except of our sentence and of the execution which we order in it. And, that it may the more remain in the memory of the living, we order that the said sanbenito or one like it, with the said insignia and name of the condemned, shall be placed in the cathedral or parochial church of ----, of which he was parishioner, in a prominent place where it shall remain for ever. Moreover we order that the children and the grandchildren by the male line, be deprived of all dignities and benefices and public positions that they possess, and be incapacitated for others, as well as to ride on horseback and carry arms and wear silk, camlet and fine cloth, gold, silver and corals and other things forbidden by the laws."[231]

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We have already seen how numerous, in the opening years of the Inquisition, were the trials of absentees, as shown by the burning of their effigies in the autos de fe. This arose not only from the flight of those alarmed by the activity of persecution, but also from the investigation of the records of all who, for years before, had changed their places of residence or had betaken themselves to the Moors of Granada or beyond seas. This proportion of the early period was not maintained after the first hurried rush of expatriation was past, but still there continued to be many cases. When a Judaizer or Morisco was arrested, all who had been associated with him recognized the impending danger and, if there was possibility of concealment or of leaving the country, prudence counselled absence. The Inquisition sought energetically to trace those against whom evidence was obtained and, if it failed, it prosecuted them _in absentia_. In some respects this procedure differed from that in prosecution of the dead.

[Sidenote: _PROSECUTION OF THE ABSENT_]

The Instructions of 1484 give minute and precise details with regard to it, pointing out three courses which may be followed. The first is recommended as the safest and least rigorous and is that furnished by the canon law in Cap. _Contumaciam_ (Cap. 7, Tit. 2 in Sexto Lib. v) which provides that, as contumacy renders suspicion vehement, a man who is suspect in the faith is to be excommunicated, when, if he remains under the censure for a year, he is to be condemned as a heretic. Under this process, which conveniently converted suspicion into formal heresy, justifying condemnation, testimony was superfluous and conviction certain, so that, although it cost some delay, we can understand the preference expressed for it. It simply required the party to be summoned, with the customary monitions, to defend himself in matters of faith and a special charge of heresy, under pain of excommunication. If he did not appear, the inquisitor ordered the fiscal to accuse his contumacy and to demand letters denouncing him as an excommunicate and then, if he persisted in his contumacy for a year, he was declared a formal heretic. The citations were made by the customary edicts, proclaimed and affixed to the church-doors of his domicile, and the excommunication was published in the churches with the customary solemnities.

The second method was more speedy and was adapted to cases where the heresy could be completely proved. The accused was cited by edict to appear and prove his innocence, with steps similar to those used in summoning defenders in prosecutions of the dead; when the terms allowed were passed, if the evidence was conclusive, the absentee could be condemned without further delay.

The third process was suitable for cases where the evidence, though incomplete, justified vehement presumption. An edict was issued against the accused summoning him to appear within a specified time and furnish canonical purgation, with notice that, if he did not present himself, or if he failed in his purgation, he would be held as convicted and be treated accordingly. This was the simplest and speediest, but the Instructions say that, although rigorous, it was well grounded in law, and inquisitors, at their discretion, could adopt either of the three courses as best adapted to the case in hand.[232]

The first of these methods, utilizing the device of contumacy became the one almost universally employed, when time was of no consequence but, in the impatient temper of the early period, speedier processes were preferred. The case of Sancho de Ciudad and Marí Díaz his wife, was tried by the second process and will serve as an illustration. Sancho was regidor of Ciudad Real and a well-known citizen. On November 14, 1483, the fiscal represented that many persons defamed for heresy had fled from the Inquisition, among whom notoriously were Sancho and his wife, whom he intended to accuse, and he asked the inquisitor, on receiving due proof, to cite them to appear. Two witnesses then deposed that it was notorious that they were absent and, as they had departed about fifteen days before the Inquisition came, it presumably was through fear. The edict was issued and the case took its course, all citations and summonses being gravely pronounced before Sancho's house by a notary as though he were personally on trial. When the case reached the stage of proof, the fiscal presented thirty-four witnesses--the most damaging one being Sancho's daughter Catalina, who gave the names of her brothers and of numerous others accustomed to assemble in her father's house to participate in Jewish ceremonies. All the formalities of the trial were observed and duly notified before Sancho's door. By January 22, 1484, the consulta de fe voted for relaxation, which Sancho was duly summoned to hear read, and it was read in the audience-chamber, January 30th, empowering the authorities of any place, where Sancho and his wife might be found, to inflict on them the penalties of the law, and meanwhile, as their persons could not be had, it ordered their effigies then present, to be subjected to the execution of the said penalties.[233]

[Sidenote: _PROSECUTION OF THE ABSENT_]

If there is something grotesque in all this, at least the proceedings were decently in order and, if Sancho and his wife had cared to risk it, they could have been heard. How hurried and informal the process sometimes was is manifested by a case at Guadalupe in 1485. On July 13th three witnesses were heard as to ten persons who had left that place from twelve to sixteen years before, and of whom public fame reported that they had gone to Málaga or to some other Moorish town, and had turned Jews. On July 21st the fiscal presented his accusation, asking for sentence without previous citation or other notice, because by law in such cases and crimes of heresy, when notoriety is proved, nothing further is required. This was expressly assented to in the sentence, although it alluded to some kind of citation with three terms, published in the plaza and affixed to the church-doors, and also to a consulta de fe, but all this was probably mythical for, in an auto de fe held on August 1st, seven of the parties were included in one sentence, their effigies were relaxed to the secular arm and their property was declared to be confiscated, while judges everywhere were empowered to seize and proceed against them.[234] Neither of the three methods described in the Instructions of 1484 could have been employed in the interval of eighteen days between denunciation and execution, but, as one of the inquisitors was Francisco de la Fuente, an experienced judge from the tribunal of Ciudad Real, we must presume that there was nothing irregular in this quick despatch.

Although in these sentences the condemned is abandoned to any secular justice for burning, the whole proceeding was merely designed to secure the confiscations and enhance the solemnities of the autos de fe with additional comburation of effigies. Its nullity in other respects was admitted by the rule that, if a culprit who had been burnt in effigy should return spontaneously, confessing and repenting, he could be admitted to reconciliation or, if he asserted his innocence, he was to be heard in his defence. This was decreed by Torquemada, October 10, 1493, with the reservation that it was a matter of grace and did not affect the confiscation. In 1494 there was a further provision that, if the condemnation had been the result of false-witness, it was the duty of the inquisitors to revoke the sentence _ex officio_, without awaiting the appearance of the convict.[235]

No change of importance was introduced in the procedure by the Instructions of 1561. In practice, the prosecution for contumacy was the one ordinarily employed; the second method was sometimes used when the testimony was complete and the third, summoning the accused to compurgation, became obsolete. The formula of the sentence, in the first method, avoids all allusion to the crimes alleged against the accused and bases the condemnation wholly on his remaining for a year under excommunication, thus proving himself to be an apostate heretic, the penalties for which are to be executed on his person, if it can be had and, in his absence, upon the effigy representing him.[236]

Of course condemnation to the stake was inevitable, when once the process was commenced, whether there was substantial evidence against the accused or not. Some authorities held that, whenever he could be caught, he was to be burnt, but Simancas expresses the considerate practice of the Inquisition in assuming that he is entitled to a hearing, whether he presents himself spontaneously or is captured, for there is no prescription of time against defence; if he comes within a year he can plead against confiscation, but after the year he can be heard only as to himself, unless he is manifestly innocent or has been detained by a just impediment.[237] It may justly be doubted whether any fugitive was ever burnt for contumacy, and the ordinary practice is seen in the case of nine Judaizers of Beas, whose arrest was ordered by the tribunal of Murcia, April 5, 1656. When the warrants reached Beas, April 12, they were found to have departed secretly about the end of February. Five of them were traced to Málaga and four were reported to have gone to Pietrabuena, but all efforts to capture them failed and, on July 27th, the fiscal asked for edicts of citation. The regular process in contumacy followed leisurely, ending in a sentence of relaxation if the culprits should be found and if not, that their effigies should be burnt. This was confirmed by the Suprema and was pronounced December 5, 1659, and executed April 13, 1660, in an auto de fe at Seville. Nearly twenty years later two of the fugitives, Ana Enríquez and her husband Diego Rodríguez Silva, were arrested at Daimiel. They were tried anew; the previous records were brought from Murcia and used, as well as evidence concerning their career during the interval. There was no thought of executing the former sentence; the consulta de fe voted for reconciliation with two years of prison and sanbenito, which the Suprema changed to perpetual irremissible, and it was duly published in an auto de fe of December 17, 1679.[238]

[Sidenote: _BURNING OF EFFIGIES_]

Dilatory as were the proceedings _in absentia_ in this case, they were speedy when compared with some others. The Valladolid tribunal issued a warrant of arrest against the Capitan Enrique Enríquez, June 6, 1650, but he eluded it. His trial for contumacy dragged on until July 30, 1659, when sentence was rendered, confirmed by the Suprema November 24th and sent to Seville, to be executed in the auto de fe of April 13, 1660.[239] It would appear that these delays did not please the Suprema for, in 1666, it called upon the tribunals to report the sentences agreed upon against the absent and dead and to push forward all unfinished trials. To this Barcelona replied that it had in hand three cases of absentees guilty of "propositions," two of bigamy, one of a fraile who was said to have fled to France in order to embrace Protestantism, and another of a dead Huguenot--all of which would indicate that these cases constituted a considerable portion of the diminishing business of the tribunals. The Suprema thereupon ordered that if, on examination, prosecution appeared to be called for, the cases should be followed up closely to a vote in the consulta de fe, which was to be submitted to it for decision.[240]

Effigies of the dead and absent continued to be one of the attractions of the autos de fe. In the great Madrid celebration of 1680, the procession was headed with thirty-four, of which all but two were burnt; they bore mitres with flames, on their breasts were placards with their names in large letters and some of them carried chests containing their bones.[241] At that of Granada, in 1721, there were no living persons burnt, but there were seven effigies, and the chronicler of the occasion assures us that the glory of Catholic zeal is acquired as much by carrying to the flames the dead as the living and, in this case, the inquisitors, the alguacil mayor and the secretaries bore them in the procession. Fired by this example, after the sentences were read, the ministers of the royal chancellería exultingly carried them from the staging to the brasero where they were burnt.[242] Even as late as 1752, at Llerena, there were six effigies of fugitives and one of a dead woman.[243]

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It will be seen from this presentation of facts from the records that the inquisitorial process, as developed in the Spanish Holy Office, so far from being the benignant and equitable procedure asserted by its representatives and re-echoed by modern apologists, was one which violated every principle of justice. The guilt of the accused was assumed in advance; the prosecution was favored in every way; the defence was so crippled as to be scarce more than a pretext, while the judge, who was in reality the prosecutor, was shielded, by impenetrable secrecy, from all responsibility except to the Suprema. Many cases cited above show that the arbitrary power thus conferred was not always abused, for the individuals were not necessarily as vicious as the system, but the power existed and its exercise for good or for evil depended on temperament and temptation.[244]