BIGAMY.
From an early period the Church assumed jurisdiction over marriage,
derived from the function of the priest for its due celebration, and
when, in the twelfth century, matrimony was erected into a sacrament,
its control became absolute. Monogamy was a distinguishing feature of
Christianity, and marriage was declared to be insoluble. The sacrament
could be enjoyed but once during the life of both spouses, and its
repetition was invalid, all of which naturally came within the province
of the episcopal courts. The infraction of the ecclesiastical law,
however, considered as an offence against society, was subject to
secular penal statutes and, under the Partidas, it was punishable with
relegation to an island for five years and confiscation for the benefit
of children, to which penalties Juan I, in the Córtes of Briviesca, in
1387, added branding in the face.[647] In 1532, the Córtes of Segovia
petitioned to have it made a capital offence, which Charles V refused,
but added half confiscation and, in 1548, the Córtes of Valladolid
substituted the galleys, the term for which Philip II, in 1566, defined
as ten years, with public vergüenza.[648]
[Sidenote: _RESISTANCE IN CATALONIA_]
Thus there was ample provision for the trial and punishment of the
offence by the spiritual and secular authorities, and there was no
necessity for the assumption of jurisdiction by the Inquisition.
Presumably it obtained a foothold through the laxity of the marriage tie
among Moors and Jews, so that bigamy, like abstinence from pork and wine
and change of linen on Saturday, created suspicion of heresy. This
showed itself first in Aragon. As early as 1486, the Saragossa tribunal
burnt in effigy the fugitive Dionis Ginot, a notary, for marrying a
second wife during the lifetime of the first, and a number of other
cases followed in which bigamy is conjoined with Judaic practices. For
simple bigamy the penalty seems to have been perpetual prison, the
punishment indicated for two culprits in the auto of February 10,
1488.[649] It also involved confiscation, for a letter of Ferdinand,
October 22, 1502, to his receiver at Saragossa, orders him to deliver to
certain parties ninety-four head of cattle confiscated on the bigamist
Dornan Morrell.[650] In some way bigamy was construed as heresy for, in
the Barcelona auto of February 3, 1503, Pere de Sentillana was required
to abjure for marrying two wives, and in that of July 2, of the same
year, Pere Ubach abjured for marrying in Rhodes and in Barcelona.[651]
This was one of the grievances of the Catalans, which they thought to
remove in the Concordia of 1512, where it was agreed that bigamists,
male and female, should be tried by the Ordinaries and not by the
Inquisition, but they unwarily allowed the insertion of a provision
"unless they believe erroneously as to the sacrament of matrimony or are
suspect in the faith."[652] As this practically left it to the
discretion of the inquisitors, Inquisitor-general Mercader, in his
Instructions of 1514, was safe in telling the tribunals that they were
not to try cases of bigamy unless there was presumption of erroneous
belief as to the sacrament, and this was the answer sent, in 1515, to
the Sicilians, when they made complaint of inquisitorial abuses.[653]
Leo X, when, in 1516, confirming the Concordia of 1512, in the bull
_Pastoralis officii_, was careful to make the same reservation,[654] but
in this, as in everything else ostensibly gained by the Concordia, the
subjects of the crown of Aragon found themselves deceived and when the
Córtes, about 1530, complained that the inquisitors assumed jurisdiction
over bigamy, the curt answer was that they observed the provisions of
the law.[655]
A case occurring in 1513 suggests ample justification for this struggle
to prevent the Inquisition from acquiring cognizance of bigamy. In 1477,
Don Jorje de Bardaxí betrothed himself by words _de præsenti_ to Leonor
Olzina but, learning that she was pregnant or had borne a child, he
never married her in the face of the Church or consummated the marriage.
He remained single, but she, in 1497, married Antonio Ferrer. In some
way the Saragossa tribunal got wind of the betrothal twenty years
previous and prosecuted her in 1513. In her defence she alleged that
Bardaxí had previously been married to Doña Juana de Luna, whereupon the
tribunal commenced proceedings against him for the betrothal in 1477 and
would have thrown him into the secret prison had he not been too infirm.
He was a man of consideration and appealed for protection to Ferdinand,
who ordered that he should not be arrested, that every care be taken to
eliminate perjured testimony and that, on conclusion of the case, the
papers be sent to Inquisitor-general Mercader.[656] The result is
unknown, but Bardaxí was at least exposed to the terrors of an
inquisitorial trial on a vague assertion of an indiscretion committed
thirty-six years before.
[Sidenote: _INFERENTIAL HERESY_]
Whether there was any formal opposition in Castile it would be
impossible to say. There was a decided assertion of episcopal
jurisdiction in the Council of Seville, held in 1512 by Archbishop Deza,
the former inquisitor-general, which imposed a fine of two thousand
maravedís on bigamists, in addition to the penalties provided by law;
long absence of a missing spouse was not to be accepted as an excuse,
and the death must be notorious or be duly proved before the Ordinary,
before he could permit a second marriage.[657] Still, there was no
special reclamation on the subject by the Córtes of Valladolid in 1518,
nor any provision in the reform attempted through the Chancellor Jean le
Sauvage. As in Aragon, the question turned theoretically upon the
presumable heresy of the bigamist. About 1534, Arnaldo Albertino devoted
an elaborate discussion to the matter,[658] but all this was academical
rather than practical. In 1537, Dr. Giron de Loaysa, in his inspection
of Toledo, reported that he had found everywhere many bigamists; they
were so numerous that the inquisitors prosecuted them without
distinction as to belief, and he suggested that special orders should
be accordingly issued as the offence was so evil and so frequent.[659]
This would have been superfluous. Simancas admits that, if the culprit
says that he knew that he could not have two wives and thus did not err
in the faith, it would seem that the Inquisition was estopped from
proceeding, but custom has prevailed, though it would appear wiser to
leave them to the episcopal courts. In a later work, however, he says
that the Inquisition prosecutes them as thinking wrongly of the
sacrament and impiously abusing it.[660] Thus it became settled, and
otherwise the Inquisition would have been obliged to abandon its
jurisdiction, for about 1640 an experienced inquisitor tells us that the
accused never admitted heresy, but always professed consciousness of
guilt. He was always asked whether he regarded a bigamous marriage as
lawful and, if he answered in the affirmative, he was to be punished as
a heretic.[661]
To keep up this fiction, the formal accusation by the fiscal asserted
heresy or at least suspicion, at first in a simple form but subsequently
with much amplification, stigmatizing the accused as an apostate
heretic, or at least gravely suspect in the faith, for "thinking ill of
the holy sacrament of matrimony and its institution and adopting the
error of the heretics against the prohibition of polygamy."[662] With
the same view he was always required to abjure for suspicion of heresy,
in the earlier time _de vehementi_, but later _de levi_.[663] The
flimsiness of the pretext, however, is exposed by the fact that, in the
Suprema, bigamy cases were always considered in the afternoon sessions,
at which assisted the two lay members of the Council of Castile, and
where public pleas and other secular matters were discussed.[664] Still,
when the jurisdiction once was acquired, it was asserted to be exclusive
and was defended with customary aggressiveness. The civil magistrates
were unwilling to surrender their immemorial cognizance of the crime,
and assumed that it was _mixti fori_, leading to frequent collisions.
The tenacity with which these contests were conducted is illustrated in
a Sardinia case, in 1658, where the royal court arrested Miquel Fiori
for bigamy. When the inquisitors heard of this, they demanded the
accused and the papers but, three hours after the demand was made, Fiori
was paraded through the streets of Cagliari, receiving two hundred
lashes, and was sent to the galleys. The indignant tribunal refused
conference and competencia, and promptly excommunicated the veguer and
his assessor. Then the quarrel was transferred to Madrid, where the
Suprema and the Council of Aragon alternately for two years pelted the
king with consultas, the former assuming that the crime was purely one
of faith and that the jurisdiction of the Inquisition was exclusive;
there could be no competencia, because the inquisitor-general was the
sole judge of what constituted cases of faith. In October, 1659, the
king ordered the excommunication of his judges to be lifted; the Suprema
replied that it had commanded this in the previous February, but the
inquisitors had given reasons for not obeying; it had repeated the order
in August and presumed that it had been complied with, but it had not
been and, in November the king reiterated his commands. He decided,
however, as usual, in favor of the Inquisition, and the judges were
summoned to surrender the prisoner and the papers, but they replied that
Fiori had escaped from the galleys and that the papers had been sent to
Spain. The Suprema regarded this as an evasion and the utmost it would
do was to suspend the excommunications for six months at a time,
especially as the offending judges refused to present themselves before
the tribunal and beg for absolution.[665]
[Sidenote: _PENALTIES_]
The time-honored episcopal jurisdiction over bigamy was treated with
similar imperiousness. In 1650 the Suprema ordered the Valencia tribunal
to demand from the Ordinary the case of Joana Arais, charged with
bigamy, because it was a matter of faith, pertaining exclusively to the
Inquisition. So, in 1658, when the Bishop of Salamanca arrested Domingo
Moreno on the same charge, as soon as the Valladolid inquisitors heard
of it, they claimed and obtained and tried him.[666] Yet,
notwithstanding this, the episcopal authority over the sacrament of
matrimony was acknowledged and, in all sentences, there was a clause
referring to the Ordinary the question as to the validity of the
marriages.
The Roman Inquisition was less aggressive than the Spanish for, while it
claimed jurisdiction, it was willing that bigamy should be regarded as
_mixti fori_ between the secular, the spiritual and the inquisitorial
tribunals. If the civil magistrate was the first to take action he could
carry a case to its conclusion, and punish the delinquent according to
the municipal law, but the episcopal Ordinary, or the inquisitor, ought
to demand the culprit for examination as to his belief in the sacrament
and then, after making him abjure and imposing appropriate penance,
return him to the secular court.[667] Offenders were treated with
somewhat greater severity than in Spain. The abjuration was always _de
vehementi_ and torture was freely employed for intention. The penalty
was the galleys--five years in ordinary cases and seven or more when
justified by circumstances.[668]
In Spain, as we have seen, the secular laws provided penalties, but
these were disregarded by the Inquisition, when it secured exclusive
jurisdiction, and in practice the tribunals exercised a wide discretion.
Ordinarily men were punished with one or two hundred lashes and from
three to five years of galleys at the oar, though those of gentle blood
were exempt from scourging and were sent to presidios or to military
service in the galleys.[669] The Seville auto of May 13, 1565, may be
taken as an example, where there were fourteen bigamists. Ten of them
were scourged with an aggregate of seventeen hundred lashes, and five,
in addition, were sent to the galleys, with an aggregate of twenty-nine
years. A woman had two hundred lashes, with prohibition to leave Seville
for ten years, and two others were paraded in vergüenza. The heaviest
punishment was that of the Bachiller Cristóbal de Ordaz, a physician,
who was fined in two hundred ducats, provided that this did not exceed
half his property, he suffered two hundred lashes and was sent to the
galleys for six years irremissibly, after which he was banished for
life, with a threat of perpetual galleys in case of infraction.[670]
Full allowance was made for extenuating circumstances. If husband or
wife had been absent for years and reasonable effort had been made to
ascertain their fate, or false news of death had been received, the
accused was acquitted or the penalty reduced.[671] This is illustrated
in the case of Anton de Cueba, a peasant of Cienpozuelos, before the
Toledo tribunal in 1606. Both his wives were of his native place. He
left it for awhile and on his return found his first wife absent. Then
news came of her death in the hospital of Anton Martin in Madrid. He
went there and verified it, returning with a certificate, on the
strength of which and of public notoriety, four years afterwards, a
licence for a second marriage was granted. Then the first wife returned
and he was placed on trial. All this was carefully verified and the case
was suspended.[672] There can, indeed, be little doubt that honestly
misguided bigamists fared better at the hands of the Inquisition than
they would have done in the secular courts, while the thorough
organization of the tribunals enabled it to collect evidence throughout
the land, whether for severity or mercy, in a manner impossible to
either the civil or episcopal authorities. Its unwearied perseverance
was sometimes severely taxed in the case of soldiers, removed from post
to post, and is fairly illustrated in that of Joseph Antonio Ferro, a
private in the regiment of Castile, accused, in 1763, to the Barcelona
tribunal. His corps shifted its quarters and he was transferred to the
regiment del Rey; his movements were followed up for years, the
tribunals of Barcelona, Seville and Valladolid were successively
employed on the case and, in 1769, that of Madrid was charged with its
conduct.[673]
[Sidenote: _JURISDICTION DISPUTED_]
Discretion could be used to sharpen as well as to mitigate penalties, as
may be seen in the case of the most accomplished bigamist in the
records, Antonio ----, who appeared in the Valladolid auto of October 4,
1579. He confessed promptly and freely that within ten years he had
married fifteen wives. It was the profession by which he earned a
livelihood, for he wandered through the land marrying and running away
with whatever he could secure. He must have been a most plausible
scamp, for his favorite device was to personate some one who had
disappeared, after gathering information sufficient to enable him to
maintain the deception. This plan he repeated eleven times, in some
cases establishing claims to considerable property. His sentence was to
appear in the auto with a mitre bearing the insignia of all the fifteen
marriages (usually the figure of a woman for each), two hundred lashes
and the galleys for life. In view of the latter clause it seemed
slightly superfluous to remit to the Ordinary, as usual, the question as
to which of the women he should live with.[674]
* * * * *
As the eighteenth century advanced, the inquisitorial claim to exclusive
jurisdiction was called in question. In the New Granadan case of Alberto
Maldonado, of Santafé de Bogotá, the alcalde resisted the interference
of the Inquisition with his prosecution of the culprit; the matter was
brought before the royal Audiencia, which decided in favor of the
tribunal, on grounds of expediency. Appeal was made to the home
government, resulting in a decree, February 18, 1754, to the effect that
bigamy was _mixti fori_ and that cognizance belonged to the jurisdiction
taking first action. Against this the Suprema presented a consulta,
March 18th, but to no purpose. The decree was enclosed to all viceroys
in a royal cédula, commanding that, in no case, should a competencia be
admitted, for no custom could prevail against the regalías, without the
royal consent. If the Inquisition desired to take action for the
suspicion of heresy involved, it could do so after the culprit had
served out the punishment imposed by the royal courts.[675]
The Inquisition was irrepressible and, in spite of these positive
commands, a competencia arose in New Granada, which induced Carlos III
to reconsider the questions. Consultas were called for and were
presented, by the Suprema in April, 1765, and by the Council of Indies
in April, 1766, resulting in a decree of July 21, 1766, by which Carlos
restored the exclusive jurisdiction of the Inquisition. This was sent to
the viceroys, September 8th and we find it ordered to be duly obeyed in
Mexico by the Marquis de Croix, February 26, 1767.[676] Carlos soon saw
reason to change his views. The Auditor de la Guerra had tried and
sentenced an invalid soldier, when the Inquisition interposed and
demanded the papers. This aroused him to a sense of the incongruity of
the position, and he ordered the Royal Council to consider the matter.
It presented a unanimous report, January 10, 1770, in conformity with
which he decreed, February 5th, that the case belonged exclusively to
the Auditoria de la Guerra. He utilized the occasion, moreover, by
adding that he had ordered the inquisitor-general to instruct
inquisitors that, in cases of this kind, they must observe the laws of
the kingdom and not embarrass the royal judges in matters appertaining
to them, but must limit the use of their faculties strictly to heresy
and apostasy and not dishonor the royal vassals by arrests without
manifest preliminary proof. All the royal tribunals were ordered to try
and punish bigamists, according to the laws and to be zealous in
preventing any contravention of the decree.[677]
This was a bitter rebuke, sullenly resented by the Inquisition. There
were many pending cases in the tribunals and they forthwith suspended
proceedings. This led to a royal letter of September 30, 1771, in which
authority was granted to proceed with all cases not on trial in the
royal courts, and all that might be denounced to the Inquisition, but
subject to the condition that, when the culprit was not _reo de fe_,
through belief that bigamy is lawful, sentence should not be rendered or
punishment be inflicted but that the case should then be handed over to
the courts having jurisdiction.[678]
[Sidenote: _JURISDICTION DIVIDED_]
Although this conceded only the power of trying without convicting, it
was an entering wedge, which the Suprema lost no time in turning to
advantage, by stimulating denunciations and making the people believe
that it still held jurisdiction. In the Edict of Faith for 1772,
therefore, bigamy was included, with the cautious formula "so that the
Holy Office may prevent the offences against God committed in this
crime."[679] The royal decree was sent around to the tribunals, with
instructions that, when denunciations were received, care was to be
taken to see that the accused was not on trial elsewhere. In that case
he was to be regularly tried and convicted and made to appear in an
_auto particular_, with the insignia of bigamy and double-knotted halter
indicating scourging; he was to be made to abjure and be remanded to
prison for two or three weeks of penance and then be handed over to the
secular court, so that his subsequent punishment might have the
appearance of being merely the execution of a sentence by the
tribunal.[680]
While these devices doubtless had the effect designed, the offensive
decree of 1770 remained in force and was a standing humiliation which
the Suprema strove earnestly to remove. In 1777 it presented a memorial
representing that the decree was printed and sold and published in the
journals, causing infinite prejudice to religion and giving immense
impulse to profligacy and infidelity. It debarred the Inquisition from
acting in any cases save those of heresy and apostasy, and even in these
it could make no arrests unless guilt was conclusively proved. Since
that year, it says, how many have abandoned themselves to solicitation,
sorcery and other crimes, believing themselves secure from the
Inquisition! How many have allowed themselves to utter propositions
impious or heretical, believing that, even when denounced, they could
not be arrested until their offences were fully proved--a thing which
could rarely or never happen! It is in vain that the Inquisition
publishes its yearly Edict of Faith; the impression produced by the
cédula is uneffaced and it ought to be called in and suppressed.[681]
This appeal led to a royal declaration of September 6, 1777, to the
effect that the cédula of 1770 did not impede the jurisdiction of the
Inquisition in cases of which cognizance was reserved to it. As to
bigamy, the offence was partitioned between three jurisdictions; the
deceit of the woman and the injury of offspring were subjected to the
secular courts; the validity or invalidity of the marriage, to the
episcopal courts; and heresy as to the sacrament, when it existed, to
the Inquisition. The three jurisdictions should coöperate, by each
imposing the penalties belonging to it and delivering the culprit from
one to another in order that his offences might be verified.[682] This
subdivision of a crime into three was too clumsily scientific to be
reduced to practice. In appearance it only defined the existing method,
but in a shape which enabled the Inquisition to encroach on the secular
jurisdiction. As early as 1781, we find that the bigamist, after trial,
was handed over to the royal court with a certificate designating him
not merely as a convict but expressing the punishment of exile and
presidio, thus showing that the tribunal presumed to sentence him to
temporal as well as to spiritual penance. In 1791 a case indicates that
it even went further, for the Toledo tribunal held an auto particular
for Gabriel Delgado, in which his sentence was read, prescribing not
only abjuration de levi and spiritual penance, but exile for eight years
from Toledo, Madrid and royal residences. The only difference between
this and the practice of a century earlier, was a clause that his person
was to be delivered to the secular justice.[683]
[Sidenote: _NUMBER OF CASES_]
Under the Restoration the Inquisition assumed full jurisdiction over
bigamy; the tribunal sentenced the culprit as of old, usually to
scourging and presidio or exile, and the Suprema, in confirming the
sentence, ordered the scourging omitted on some pretext. Nothing was
said about handing the culprit over to the secular courts. They might,
if they saw fit, exercise cumulative jurisdiction, and entertain cases
that came to them, but, after they rendered judgement, the Inquisition
tried the culprits over again and modified the sentence at its pleasure,
either to increase or diminish the penalties. Thus, in 1818, the Granada
criminal court sentenced Eusebio Reulin to six years of presidio of
which one was to be in Africa. Then the tribunal took hold of him,
adding spiritual penances and perpetual exile from certain places, and
increasing the presidio to ten years, but, when this went for
confirmation to the Suprema, it cut down the exile to eight years and
the presidio to two. The sentence of the criminal court was treated with
the utmost contempt. An exception to this seems to have been made when
the army was concerned. In 1817, Eladio de Aragon was tried by the
Madrid tribunal and convicted of having three wives; his sentence
comprised only abjuration and spiritual penances, after the performance
of which he was to be handed over to the captain-general with a copy of
his sentence and a recommendation to mercy, in view of his long
imprisonment, his confession and the hopes entertained of his
amendment.[684] Evidently, in dealing with the army, the Inquisition
felt constrained to obey the laws.
* * * * *
Bigamy formed a portion by no means inconsiderable of the current
business of the Inquisition. In the Toledo record, from 1575 to 1610,
the number of cases is fifty-four, ranking next to those of Moriscos. In
the same tribunal, from 1648 to 1794, there were sixty-two cases, being
next in number to solicitation. In the sixty-four autos held in Spain
from 1721 to 1727, there were thirty-four cases, the only crimes
exceeding this being Judaism and sorcery. In the later period, owing
doubtless to the interference of the secular jurisdiction and the
decadence of the Inquisition, the number falls off, the total in all
tribunals from 1780 to 1820 being one hundred and five.[685]