THE INQUISITORIAL PROCESS.
In considering the judicial functions of the Inquisition, we shall meet
with much that is abhorrent to our conceptions of justice. We shall see
that the accused was assumed to be guilty and that the object of the
tribunal was to induce or coerce him to confess his guilt; that, for
this purpose, he was substantially deprived of facilities for defence
and that the result, for the most part, depended on his powers of
endurance which the judges, at discretion, could test to the utmost. It
would not be easy to construct a system more repugnant to rational
methods for the ascertainment of truth.
At the same time, the vices of the inquisitorial process, at the period
under consideration, were not wholly confined to the Inquisition. It is
true that it was responsible for their origin, in the thirteenth
century, when the jurisprudence of Europe was undergoing reconstruction,
and the methods which it framed for the conviction of heresy offered
such advantages to the prosecution that they were adopted in the secular
courts of nearly all the lands where the Holy Office found a foothold,
and became an essential part of criminal codes. The judge, in place of
an impartial dispenser of justice, grew to be virtually a prosecutor,
with unlimited power of wringing confession from the accused; the latter
was practically compelled to prove his innocence, and the trained and
subtle intellects of the bench were engaged in conflict with the cunning
or stupidity of the miserable wretches brought before them. On the one
side was the pride, resolved not to be baffled, on the other the
desperate effort at self-preservation and, in the unequal struggle,
innocence was much more apt to suffer than guilt to escape. So
completely did this identification of judge and prosecutor dominate the
criminal jurisprudence of Latin Europe, that in France, until the law of
December 8, 1897, after the jury system had been in use for a century,
the judge, armed with the _sumaria_ or _dossier_ of incriminating
evidence, opened the trial by interrogating the accused and assuming
his guilt--an interrogation which was liable speedily to degenerate into
a duel between them, in which the judge endeavored to break down the
line of defence which the accused was obliged unskilfully to
reveal.[1358]
In this the kingdoms of Aragon were strikingly exceptional, for the
inquisitorial process, as we have seen, was prohibited. In Aragon itself
the interests of the accused were carefully guarded. There were
elaborate provisions against arbitrary arrest, although admission to
bail was limited. Accusers had to give security and were liable to
double costs and damages in case of failure to prove charges. Witnesses
were diligently cross-examined and, in cases involving serious
punishment, five disinterested jurists were associated with the judge in
passing sentence, against which there was right of appeal. There was no
public prosecutor, before the revision of procedure by the Córtes of
Monzon in 1510, and then it took many years to bring the office into
general use. The abuse existed of prosecutions _in absentia_ though, if
the accused subsequently appeared, he had the right to appeal, and still
worse was the custom of keeping the prisoner chained until his trial was
concluded.[1359] In Valencia, and probably elsewhere, there was a
peculiarly valuable privilege that no one, whether defendant or witness,
was compelled to answer questions that would criminate him.[1360] In
Biscay, the fueros, as revised in 1526 and in force until the
Revolution, were very emphatic in providing the accused with all
information necessary to his defence.[1361]
[Sidenote: _SECULAR PROCEDURE_]
In Castile the processes by accusation and by inquisition were both
employed. An accuser, however, was obliged to give security and was
subject to fines if it appeared that he acted through malice. If there
was no accuser, the judge, or alcalde, made inquisition and proceeded
summarily to try the case. When, under the impulse of Isabella and the
guidance of Alfonso Díaz de Montalvo, the Córtes of Toledo, in 1480,
revised the criminal jurisprudence of the land, their action served as a
basis for all subsequent legislation. It breathes the spirit of
justice--the rigorous punishment of guilt and avoidance of punishment of
innocence. The courts were enjoined to quick despatch, the accused was
to have all necessary opportunities for defence; if poor, counsel was
supplied at the public expense; he could recuse any judge for cause and
appeal from any decision, and he was always entitled to give bail.
Prosecution _in absentia_, however, was allowed; after three summonses
of nine days each, the accused could be prosecuted _in rebeldia_, as
contumacious and be condemned.[1362]
While thus in Castile legislation was dictated by a sincere desire for
justice, in practice the accused was subjected to unnecessary
disadvantages and hardships. We chance to have the proceedings in the
case of Francisco Fernández de Montemayor, of Seville, tried in Ciudad
Real in 1499, on a charge of petty thefts on fellow-lodgers in an inn,
in which the general course of procedure bears sufficient resemblance to
that of the Inquisition to show that the latter borrowed its forms from
the secular courts with modifications to facilitate conviction. When
Montemayor was arrested in his inn, September 10th, his effects were
sequestrated, locked in his chest and left in charge of the innkeeper.
When money was needed for his prison expenses, the judges, on his
application, sent the prison scrivener to take out a prescribed sum in
the presence of witnesses. The witnesses on both sides were examined on
a series of written interrogatories, a most imperfect method, and were
not cross-examined. Their names were not concealed, but the accused was
kept in gaol and was not present. His own examination was made by the
judges in an _audiencia de cárcel_. He was allowed to retain an
advocate, who presented a written defence. The charges were frivolous
and, on October 28th, the judges pronounced that the fiscal had not
proved his case, which acquitted the prisoner. His treatment in gaol had
been harsh; he was an hidalgo and, a few days after arrest, he asked to
be treated as a man of good lineage and not to be herded with criminals,
whereupon he was placed in a cell, with a heavy chain, under close
guard. On acquittal he begged to be released from his fetters, which was
done on his swearing not to leave the prison--for he was not discharged.
Unluckily, the testimony contained some heretical speeches, though the
witnesses believed them to have been uttered in jest, as he was always
striving to be jocular. The secular court could take no cognizance of
them but the Inquisition claimed him and he was delivered to it in
chains, November 9th. His trial had occupied six weeks; the Inquisition
kept him for two years and, on November 10, 1501, it penanced him and
made him abjure _de vehementi_. Doubtless the poor wretch was
ruined.[1363]
[Sidenote: _THE SPIRITUAL COURTS_]
If we find reason to believe that the tribunals of the Inquisition were
largely actuated by passion or greed, they were in this no worse than
the secular courts. The constantly reiterated complaints of the Córtes,
during the sixteenth century, assume that the whole judicial system of
Castile, from the highest to the lowest, was not so much an
instrumentality of justice as a venal organization to extort the largest
possible sums from pleaders and to oppress the poor for the benefit of
the rich.[1364] We might, perhaps, regard this as rhetorical
exaggeration if we had not the opportunity of seeing how a court of the
highest rank--the royal Audiencia of Seville--in 1598, disregarded all
law and justice when it sought to gratify its spite on the magistracy of
that city. We have seen (Vol. I, p. 362) the absurd quarrel raised with
the judges by the inquisitors on the occasion of the obsequies of Philip
II. The judges, unable to avenge themselves on the tribunal, discharged
their wrath upon the civic authorities, who had sought to mediate and
keep the peace. They arrested on the spot several of the highest
officials, including two members of the great house of Ponce de Leon
and, in spite of the indecency of sitting as judges in their own case,
they prosecuted their prisoners. They took the testimony of thirty-seven
witnesses on written interrogatories, containing leading questions, and
accepted hearsay evidence of the veriest gossip. The accused were
allowed to see the accusation framed by the fiscal, but not the
evidence, and no opportunity of making defence was permitted. Thereupon
their advocates recused the judges, but the recusation was not only
rejected on the day of its presentation, but the accused and their
advocates were all heavily fined for offering it and, the next day,
sentence was pronounced condemning the prisoners to various terms of
suspension from office, exile, fines and costs. Both they and the fiscal
appealed, and a second hearing was held, in which the defendants at
last were allowed to see the evidence. Both parties meanwhile had been
applying to the Council of Castile, which ordered that the sentence
should not be confirmed without being first submitted to it, but the
judges anticipated this and, the day before the order was received,
hastily assembled with closed doors and, in the absence of the accused
and their counsel, affirmed the decision and ordered its immediate
execution, with the exception of Ponce de Leon Almansa, who was of kin
to one of them. The sentences were carried out with cruel
vindictiveness. There was pestilence in the district to which the exiles
were sent and they were brought back sick to Seville, where the Alcalde
mayor, Juan Ponce de Leon, died and the others were treated with the
utmost harshness.[1365] When the royal courts permitted themselves such
arbitrary perversions of justice, we need not be surprised that the
Inquisition was reckless, shielded as it was from responsibility by
impenetrable secrecy. Between them, the Spanish people were sorely
vexed.
To this the spiritual courts offered a contrast in their customary
benignity towards clerical offenders, amounting almost to immunity. The
course of procedure was that, when a denunciation was made to the
provisor or vicar-general, he took testimony or sent an official to make
inquisition; the accused was summoned and was admitted to bail; the
trial took the shape of an action between him and the fiscal, who
presented an accusation to which the defence made reply. Witnesses for
the defence were examined, publication of evidence was made and, when
both parties had concluded, the judge named a day for pronouncing
sentence. From two cases of the sixteenth century, of which the papers
are before me, it would appear that there was little delay, that
formalities were loosely observed and that the proverbial leniency shown
to the cloth rendered the whole a matter of comparative indifference.
One of these illustrates the expiring episcopal jurisdiction over heresy
and its supplantation by the Inquisition. In 1551, Diego de Carcano, a
priest of Ciudad Real, was tried for heretical acts and speeches, which
he freely admitted, saying that they had been in jest and that he ought
not to have trifled with the things of God. The trial was concluded
within three weeks and Diego was confined for a few days in a parish
church with spiritual exercises, besides paying costs, amounting to
about thirty-two reales. Two years later, Inquisitor Valtodano, on a
visitation, chanced to hear of the affair; he treated the episcopal
trial as invalid and vindicated together the faith and the inquisitorial
jurisdiction by a second prosecution of the unlucky priest.[1366]
The laxity of the Church towards its erring members was still further
illustrated by the reforms adopted in the provincial synod of Toledo,
held in 1565 to receive the Council of Trent. The fiscal was ordered not
to denounce any one to the judge; no inquisition was to be made, unless
there was a legitimate general report against a culprit, and then the
judge was required to investigate carefully whether it arose from
malevolence or from reputable persons. If the fiscal desired to accuse
any one he was subjected to the laws concerning accusers and, if he
failed to prove the charges, he was liable for the costs and to
punishment at the discretion of the judge. All pecuniary penalties were
to be expended in pious uses, and not for the advantage of the bishop or
his vicar-general, and an official was to be deputed to receive them and
render a strict account.[1367]
* * * * *
The most marked distinction between the procedure of the Inquisition and
that of the other jurisdictions was the inviolable secrecy in which all
its operations were shrouded. There were, indeed, other evil
peculiarities, but this it was which inflicted the greatest wrong on its
victims and exposed the inquisitor to the strongest temptation to abuse
his power. It was an inheritance from the thirteenth century, when the
Inquisition early discovered the greater freedom of action and the
increased popular dread resulting from the mystery which emancipated it
from public opinion and veiled all its actions, until their outcome was
revealed in the solemnities of the auto de fe. The Roman Inquisition
retained it, but in a somewhat modified degree. All its officials were
sworn to silence as to everything that occurred in the Congregation but,
in 1629, this was explained as restricted only to matters that might
prejudice cases.[1368] Very different was the awful silence so enforced
in Spain that it formed an important factor in the power of the Holy
Office.
[Sidenote: _SECRECY_]
It is not a little remarkable that, when the institution was introduced
in Castile, so little was known of its practical working that its
procedure was public, like that of the secular and spiritual courts.
Thus, in 1483, the record of a trial in Ciudad Real speaks of the
inquisitors sitting in public audience; the notaries specify as present
at the hearing certain persons by name "and many others who were there
present;" the inquisitors were listening to all who came before them,
while the fiscal and notary were making reports.[1369] It was deemed
necessary that there should be spectators to bear witness to the
proceedings; sometimes these were connected with the tribunal, sometimes
they were citizens called in for the purpose, whose names were regularly
entered upon the record.[1370] Even the prison, subsequently guarded so
jealously, was not as yet known as the _cárceles secretas_, but as a
_cárcel publica_.[1371] In 1488, the Instructions order the records to
be kept "in a public place, where the inquisitors customarily perform
the duties of the Inquisition."[1372] The earliest indication of a
change in this respect occurs in the Instructions of 1498, where the
oath prescribed for inquisitors and other officials contains a pledge of
secrecy.[1373] This did not, as yet however, extend to a complete
exclusion of publicity, for some Toledo trials of 1501 describe the
fiscal as presenting his _clamosa_, or demand for prosecution, where the
inquisitors were sitting as customary in their public audience, but,
during the trial itself, they sat in the "audiencia de cárcel."[1374]
From the expressions used we may assume that as yet the inquisition
building and the prison were separate; that public audiences were held
in the former, and that the latter contained a room to which the accused
could be brought from his cell when on trial. The _secreto_, which
subsequently embraced the prison and everything beyond the
ante-chambers, as yet only designated a chest or a room in which the
records and registers were kept in safety.[1375]
Yet even during this early period there had commenced, in certain
portions of procedure, a practice of secrecy which markedly
differentiated the Inquisition from the ecclesiastical and secular
courts. The suppression of the names and identity of witnesses and the
strict seclusion of prisoners from the outside world are matters which
will be more fully discussed hereafter, but already they had become
distinctive features of the inquisitorial process, inflicting great
hardship on the accused, which was keenly felt. The tendency of all such
abuses to development, the facility with which the reasons alleged in
justification could be extended over all the acts of the Inquisition,
and the attraction of the arbitrary and irresponsible power thus gained,
readily explain the rapid evolutionary process which enveloped, with an
impenetrable veil of secrecy, everything connected with the tribunals,
from the preliminary inquest and the arrest of the accused, to his
discharge or appearance in an auto de fe.
[Sidenote: _SECRECY_]
The obligation of the oath of secrecy was rigidly construed when, in
1523, the vicar-general of Saragossa seems to have babbled about what he
had heard when called in to vote at a consulta de fe, and the Suprema
ordered the inquisitors to summon him and warn him not to reveal the
secrets of the Holy Office.[1376] In 1544, Mari Serrana, on trial at
Toledo, was charged with impeding the Inquisition, because she had
endeavored to ascertain whether a certain person had testified in
another case and what he had said--the mere attempt to learn what went
on within those mysterious walls was treated as a crime.[1377] In 1547,
when the tribunal of Granada was moved into new quarters, it found its
secrecy imperilled by the fact that it was overlooked by some windows in
the house of Francisco de Santa Cruz, and, on its complaint to Prince
Philip, he ordered the corregidor to have those windows closed
up--apparently without compensation to the owner.[1378] So impenetrable
was the shroud enveloping all that took place within the tribunal that,
when Philip II deemed it imperative to consult a distinguished surgeon
who had been arrested, Inquisitor-general Quiroga left two applications
unanswered and to a third replied that, if the person was there, he
could not be taken out, nor could it even be told whether he was or was
not a prisoner, whereupon the king desisted from his request. On this
the comment of an inquisitor is that to all inquiries the answer must
be that nothing is known.[1379] So when, in 1643, the Suprema argued
against the claim of the Justicia of Aragon to grant his _manifestacion_
or habeas corpus in secular cases, the chief reason alleged was that, if
a tribunal could be required to differentiate cases of faith from others
and to admit that it had a certain person in its prison, and the cause,
its secrecy would be violated.[1380] This was emphasized, in 1678, by a
declaration of the Suprema that an inquisitor admitting that any
individual was in the secret prison would incur excommunication
removable only by the pope.[1381] It is easy to understand why the
prison was habitually designated as the _cárceles secretas_ and why,
when a person was arrested, he disappeared as utterly as though the
earth had swallowed him.
At every step in the progress of a case minute precautions were taken to
insure absolute secrecy. It was not only all officials who were thus
sworn, but accuser and accused and their witnesses were subjected to the
same obligation. As early as 1531, a witness when dismissed was ordered
to observe silence as to all that he had said or heard, under pain of
excommunication and a thousand ducats, and of the other penalties of
those who violate the secrecy of the Holy Office.[1382] As late as 1817,
in a trifling case which was suspended, the informer was fined for not
having preserved secrecy.[1383] It was the same with the accused. At the
very first audience, the oath administered to tell the truth contained a
clause pledging him to silence, not only as to his own case but as to
all that he might see or hear. When he was dismissed, whether to
punishment or to freedom, he was required to sign a pledge under oath to
the same effect, to which was added a threat of punishment, occasionally
taking the shape of one or two hundred lashes.[1384] In the later years
of the Inquisition this was frequently reinforced by including in the
sentence a clause prohibiting the culprit from talking in any manner
about his case.[1385] The tribunal thus was relieved from responsibility
and could commit injustice without fear of unpleasant revelations, and
the Holy Office could boast, as it customarily did, of the exquisite
equity of its judgements, without danger of contradiction. To what
extent this was justified may be guessed from a remark of Peña, that no
inspection was allowed of the acts of the tribunals because they were
often in conflict with the common law and the universal opinion of the
doctors.[1386]
Nothing connected with the proceedings of the Inquisition was allowed to
remain outside of its walls. Every letter, or mandate, or instruction,
or warrant, sent out was invariably required to be returned with the
answer or endorsement of its execution. Even the Edicts of Faith and
Anathemas given out for publication in the churches were returned with
statements of the day on which they were publicly read.[1387] This
applied to the counsel entrusted with the defence of the accused. Not
only was he sworn to secrecy and to communicate with no one concerning
the cases, but the scanty papers entrusted to him were to be kept under
lock and key and be scrupulously returned to the tribunal, so that there
should be no trace or memory of them. The formal defence which he
prepared had to be written by his own hand and no rough draft of it be
preserved; no printer was allowed to print such a document nor, indeed,
any other paper relating to the Inquisition, without special licence
from the inquisitor-general or Suprema, under pain of excommunication
and a hundred ducats.[1388] This jealous reserve explains the form in
which the records of the Inquisition reach us--those of each process
rudely but firmly sewed together and never bound, for they could not be
given out to a binder nor could one be admitted into the sacred
precincts of the secreto. These injunctions of secrecy were not allowed
to be a dead letter. In the Edicts of Faith special clauses called for
the denunciation of all cases of violation, or of papers concerning its
acts being in the possession of any one.[1389]
[Sidenote: _SECRECY_]
Its procedure was guarded with the same anxious care from public
knowledge. In 1573, Leonardo Donato, the Venetian envoy, who regarded
the Inquisition as necessary to Spain, describes its action as so
secret that nothing was known of its victims and their cases until their
sentences were published in the autos de fe, but the fear entertained of
it was so universal that little was said concerning it through dread of
arousing suspicion. He had been able to learn nothing of its methods,
but was told that they were good and that the sentences were always
just.[1390] No one, in fact, was allowed to know what was its form of
procedure. The Instructions, it is true, were necessarily printed. There
was an edition of the _Antiguas_ in Seville, in 1536, reprinted in
Madrid in 1576. The _Nuevas_ of 1561 were printed in 1612 and the whole
were re-edited by Arguello, an official of the Suprema, in 1627 and
1630, but these were strictly reserved for use in the tribunals and
their details were constantly subject to modification by the _cartas
acordadas_ of the Suprema, which never saw the light. Experienced
inquisitors drew up manuals of practice, many of which are still
preserved in the MSS. of the archives and libraries, but this knowledge
of the _estilo_ or methods of procedure was strictly confined to
officials sworn to secrecy. It was apparently soon after the preparation
of the Instructions of 1561 that a Doctor Blasco de Alagona had the
audacity to ask for a copy of them, when the fiscal, to whom the
petition was referred, declared that the granting of such a request
would be unexampled, and he had no difficulty in proving that parties
before the tribunal had no business to inquire into its methods; the
Instructions were solely for its guidance and were to be known to others
only by their results in the administration of justice. If they came to
public knowledge, evil-intentioned men could debate whether the _estilo_
of the Inquisition was good or bad.[1391]
[Sidenote: _SECRECY_]
The extreme importance of the "seal" was fully recognized in assuring
freedom of irresponsible action and in creating the popular impression
of mysterious impeccability. Philip II, in his instructions to Manrique
de Lara, in 1595, dwelt on this and pointed out that "without it the
Holy Office could not preserve the untrammelled exercise of its
functions" wherefore any official violating it must be punished with the
utmost rigor.[1392] Apparently cases of infraction occurred, drawing
from the Suprema a carta acordada pointing out that all the power and
authority and reputation of those serving in the Holy Office rested upon
secrecy. The more secret its affairs were kept, the more they were
venerated by those from whom they were concealed. The neglect of this
had aroused in the Suprema the greatest resentment, as it was a matter
of so great moment to the estimation and respect in which the affairs
and the members of the Inquisition had always been held. Therefore it
had been resolved that the oath of secrecy, taken on admission to
office, should be so construed that its infraction should constitute
perjury and infidelity. Single witnesses should suffice for conviction;
on a first offence the culprit should be suspended irremissibly for a
year and pay fifty ducats, and on a repetition be perpetually dismissed.
Even if not convicted he should realize that, in the forum of
conscience, he could not draw his salary. This secrecy covered not only
matters of faith and depending thereon, but all votes, orders,
determinations, letters of the Suprema, informations of limpieza and all
other matters, no information concerning which was to be given to the
parties concerned or to any outside person, while even the public
utterances of the tribunals were not to be spoken of. Moreover, the
above penalties and major excommunication were incurred by all who,
knowing of infractions of secrecy, did not report them to the Suprema.
Finally, this carta was ordered to be filed with the Instructions, to be
read annually to the assembled officials.[1393]
The instructions to commissioners warned them that the existence and
preservation of the Inquisition depended chiefly on the absolute secrecy
to be observed as to all its affairs.[1394] This continued to the end. A
decree of the Suprema, December 7, 1814, speaks of the seal which is the
soul of the Inquisition.[1395] In fact, there was no hesitation in
assimilating it to the seal of confession and in employing the casuistry
which justified a confessor in denying under oath what he had learned in
the confessional. Similarly the official was told that no oath was
binding when the affairs of the Inquisition were concerned--he could
depose as to what he knew as an individual, but not what he knew as an
official entrusted with its secrets.[1396] We can understand the
significance of the popular saying _con el rey y la inquisicion,
chiton!_--keep silence as to the king and the Inquisition.
Even within the tribunals the same mystery was observed in investigating
cases of infraction. When an intimation was received that secrecy had
been violated, the junior inquisitor examined into it and wrote out the
"information" with his own hand, and without allowing any one to know of
it. This was then deposited in a separate chest, of which the senior
inquisitor held the key; the Suprema was advised of the matter and its
instructions were awaited.[1397]
Not the least important result of this secrecy was the fact that it
enabled the Inquisition to combine legislative and judicial functions
in a manner known to no other tribunal. It framed its own code and
administered it in darkness. It is true, as we shall have occasion to
see, that many of the regulations and limitations of the Instructions
were inspired by a sense of justice, but this mattered little when the
secrecy, so jealously preserved, practically left everything to the
discretion of the tribunal, until the Suprema absorbed and centralized
everything into itself. Shielded from responsibility--save to the more
or less perfunctory occasional visitation of an inspector--there was
scarce any injustice that could not be safely perpetrated, or any enmity
that a perjured witness could not gratify. The secrets of those dark
prison-houses will never be known, even by the records, for these were
framed by those whose acts they recount and they may be true or
falsified. What was the real administration of so-called justice can
only be guessed by occasional revelations such as we chance to have in
the trials of Archbishop Carranza, of the Nuns of San Placido, of
Gerónimo de Villanueva, of Fray Froilan Díaz and, when the principles of
justice were set at naught by the chiefs of the Inquisition in the cases
of those so prominent, it is not likely that the obscure were treated
with greater consideration by the tribunals. At its best, the
inquisitorial process left much to the temper and disposition of the
judge; as modified by the Inquisition, the fate of the accused was
virtually at the discretion of the tribunal, and that discretion was
relieved of the wholesome restraint of publicity. At a time when, as we
have seen, the secular courts, although open to the public, were little
better than instruments of oppression and extortion, it is not to be
imagined that the inquisitorial tribunals, shrouded in impenetrable
secrecy, and largely dependent for support on fines and confiscations,
were scrupulous in the administration of the cruel laws against heresy.
* * * * *
[Sidenote: _USE OF THE FISCAL_]
In the original medieval Inquisition the procedure was a pure
_inquisitio_, the inquisitor frankly acting as both prosecutor and
judge, collecting testimony, examining witnesses, seeking to make the
accused confess or convict himself, and passing sentence. As the
institution, in the fifteenth century, declined and became disorganized,
its duties were to some extent resumed by the bishops, in whose courts
the pressure of multifarious business had long rendered necessary a
prosecuting officer, known as the promotor fiscal, duly trained in the
civil and canon law. Cases of heresy inevitably followed the routine of
the court and consequently assumed the form of actions between the
fiscal and the accused, as plaintiff and defendant, with the bishop or
his Official as judge.[1398]
This, at least in appearance, removed one of the most repulsive features
of the pure inquisitorial process, as the judge was no longer a party to
the case and could affect a semblance of impartiality, even though he
were, in reality, the instigator of the prosecution. When the Holy
Office was established in Castile, it assumed to be merely the
continuance of the Old Inquisition; in its collections of privileges it
included papal thirteenth century bulls, along with the modern ones, and
the ferocious laws of Frederic II with the cédulas of the Catholic
kings.[1399] Yet it knew so little of the older formulas and procedure
that it adopted those of the secular and spiritual tribunals of the
period, and thus its practice assumed the external form of _accusatio_
rather than of _inquisitio_, with a fiscal, or public prosecutor, as an
accuser. While, on the surface, this was a step towards fairness and
justice, care was taken that the interests of the faith should not
suffer. It gave to the inquisitors the assistance of a trained lawyer,
whose business it was to prove his charges, who lost no opportunity of
exaggerating the offences imputed to the accused, who assumed that they
had been proved, who resisted all the efforts of the defence to disprove
them, and who was free from all the penalties and responsibilities of an
accuser. The form of sentence, adopted at the beginning and steadfastly
adhered to, asserts that the judges have been listening to a case
pending between the fiscal and the defendant, and they find that the
fiscal either has proved his charges completely or partially, or that he
has failed to do so.[1400] This was an assumption perfectly false and
intended to deceive the people when read in an auto de fe.
It was the inquisitors who gathered testimony. The Instructions of 1484
expressly order the examination of witnesses to be made personally by an
inquisitor and not to be committed to a notary, unless the witness is
too sick to appear and it should be indecent for the inquisitor to go
to him, when he could empower the ecclesiastical judge to perform the
duty with a notary.[1401] Business was too pressing, however, for the
inquisitors always to examine witnesses and they frequently deputized
persons to act for them, but those deputies were never the fiscal, and
the apologetic tone of the commission shows that it was irregular and
demanded an excuse.[1402] As time went on, the tendency to shirk the
labor increased; the notaries were allowed to examine, by the
Instructions of 1498, provided it was in presence of the inquisitor;
then this condition was neglected, in spite of vehement remonstrance by
the Suprema, and finally, in the later period, when there was little
serious work to be done, special commissions, as we have seen, were
common, apparently with no greater excuse than the indolence of the
inquisitors.[1403]
[Sidenote: _USE OF THE FISCAL_]
Still, the fiction was preserved that the witnesses were presented by
the fiscals, although the Suprema, in 1534, informed them that it was no
part of their duty to collect evidence, although if they obtained any,
they were to communicate it to the inquisitors.[1404] Their duties, in
fact, in addition to seeking the condemnation of the accused, were those
of a superior clerk of the court--to draw up accusations, to conduct
correspondence, to advise the inquisitors, to marshall the evidence, to
keep the records in order or to see that the secretaries did so, to
attend to the execution of sentences, and to exercise a general
supervision over the officials, besides attending the meetings of the
_junta de hacienda_ and looking after the financial interests of the
tribunal.[1405] The fiscal, moreover, served a useful purpose as a bogey
to frighten the accused, who were constantly threatened with what would
happen if they did not confess before he was admitted to present a
formal accusation, in which he customarily demanded torture and
relaxation for them--but, after all, his chief use was to preserve the
fiction that the prosecution was an action between parties. As Simancas
says, even when the culprit confesses, the fiscal must present an
accusation, in order that a judgement may be based on accuser, accused
and judge.[1406] In short, he was simply one of the officers of the
court who, as a trained lawyer, gave to the inquisitors, who were apt to
be theologians, the benefit of his legal knowledge. His only real
position as a party to an action was a distinct disadvantage to the
accused for, in case of acquittal or of a sentence which he deemed too
light, he had the right, not infrequently exercised, of appealing to the
Suprema, and consequently his assent to the decision was necessary. As
his dignity gradually increased, he was classed among the judges by the
Córtes of Aragon in 1646;[1407] we have seen how he finally came to be
known as "inquisitor-fiscal" and how his place was generally filled by
one of the inquisitors, who, however, abstained from the final vote on
the case. The fiscal, indeed, from an early period was admitted to the
consulta de fe, where he could state facts and advance arguments--a most
indecent privilege--though he was required to depart before the vote was
taken. In 1660 this was discontinued, not in consequence of its shocking
incongruity, but because there was a troublesome question of precedence
between him and the episcopal Ordinary, whose duty it was to be
present.[1408]
There was nothing in the function of the fiscal to prevent the
inquisitor from initiating proceedings on the strength of any rumors
that might reach him, or of compromising evidence gathered from the
confessions of others. He had not to wait for the fiscal's action, but
could order an inquest to be made and testimony to be taken and, when
this was done, it was given to the fiscal to be put into shape for the
formal prosecution. No matter how upright might be the inquisitor, the
mere fact that he had ordered an arrest and trial necessarily committed
him to belief in the guilt of the accused; he was unconsciously
prejudiced from the start and to acquit cost a greater effort than to
convict. Thus although externally the form of procedure was _accusatio_,
in reality it was _inquisitio_, and the injection of the fiscal as
accuser only diminished the chances of the defence, by giving the
inquisitors a skilled legal assistant in the conduct of a prosecution,
in which they were all prosecutors.
Yet, whatever we may think of the morality of the inquisitorial
process, there can be no doubt as to its efficacy. In studying the long
and minute records of the trials, where every detail is set forth in
writing, it is instructive to see how often the accused, who commences
by boldly asserting his orthodoxy, comes in successive audiences to make
some admission of which advantage is skilfully taken and gradually the
denial breaks down, or perhaps yields to the terrors of the accusation
and the publication of evidence, ending in complete confession and eager
implication of kindred and friends. The situation of the accused, in
fact, was helpless. Standing up alone before the stern admonitions of
the trained and pitiless judge; brooding in his cell, cut off from all
external communication, during weeks or months of interval between his
audiences; apparently forgotten, but living in the constant uncertainty
of being at any moment summoned to appear; torturing his mind as to the
impression which his utterances might have made, or the deductions drawn
from his admissions or denials; balancing between the chances of escape,
by persistent assertions of innocence, and those of condemnation as an
_impenitente negativo_, and urged by his so-called advocate to confess
and throw himself on the mercy of the tribunal--it required an
exceptionally resolute temperament to endure the prolonged strain, with
the knowledge that the opponent in the deadly game always had in reserve
the terrible resource of the torture-chamber. The whole course of the
procedure was based on the assumption that the accused was guilty; that
it was the province of the tribunal to induce or compel him to confess
his guilt and, in the great majority of instances the assumption was
correct. To those who regarded aberrations from the faith as the
greatest of crimes before God and man, and their punishment as the most
acceptable service that man could render to God, this presumption of
guilt served to justify the cruelty of the procedure and the denial of
all facilities for defence which, to those trained in the principles of
English justice, seem the imprescriptible right of the accused, whether
innocent or not.
[Sidenote: _THE INQUISITORIAL IDEAL_]
There can, indeed, be no doubt that, amid much greed and callous
indifference to justice, there were men engaged in the service who
deemed themselves to be doing the work of God and that their methods
were merciful. The Inquisition was not as other tribunals which only
punished the body; it asserted its high and holy mission to be the
saving of souls. As the inquisitors of Valencia said, in 1536, to Miguel
Mesquita, on his trial for Lutheranism, they required of him nothing
but the truth and, if he had fallen into error, they sought to disabuse
him and to cure his conscience so that his soul might not be lost.[1409]
The Instructions of 1561, which remained to the last the basis of
procedure, are emphatic in cautioning inquisitors not to be led astray,
either by the witnesses or by the confessions of the accused, but to
determine all cases according to truth and justice; they must preserve
strict impartiality for, if they lean to one side or to the other, they
can readily be deceived.[1410] If we may believe the veteran inquisitor
Páramo, the Holy Office was so conducted on this lofty plane as to be an
unmixed blessing to the land. Its holiness, he says, is so conspicuous
that there is no opening for hatred, favor, subornation, love,
intercession, or other human motive. Every act is performed with such
conscientiousness and regard for equity and justice; the inquisitors so
investigate everything, undisturbed by the multitude, that they inspire
all men with dread of the crimes which are brought before them and, in
the all-pervading silence, they act with incredible conscientiousness.
The evidence of witnesses is scrutinized in the light of their character
and quality and those who are found to bear false-witness are most
severely punished. The accused, while detained in the prisons, are
treated kindly and liberally, according to their condition; the poor and
the sick are abundantly furnished with food and medicines, at the
expense of the fisc, and are favored in every way. Not only are the
utterances of witnesses investigated with distrust but, as Time is the
revealer of truth, cases are not hurriedly finished but are prudently
prolonged, as is requisite when there is such peril of the life, fame
and property, not only of the accused but of his kindred. If his
innocence appears probable, every effort is made to prove it and, if it
is proved, to avert from him any loss of reputation, for which reason he
is carried on horseback, adorned with laurels and palms like a victor in
a triumph--a spectacle inspiring to the souls of the timid, depressed by
the severity with which the guilty are punished. Those who are restored
from such peril to their former condition never cease to thank God for
placing on earth a tribunal of which the chief care is to uphold the
honor of the innocent. When inquisitors punish heretics it is not with
the desire to destroy them, but that they shall be converted and live.
In judging and chastising, the Holy Office labors to amend him whom it
punishes, or to benefit others by his punishment, so that they may live
in security when the wicked are removed.[1411]
To what extent this idealization of inquisitorial methods was justified,
we have had some opportunity to see, and we shall have more.