ARREST AND SEQUESTRATION.
Although the power to arrest arbitrarily was inherent in the
inquisitorial functions, and all secular officials were bound to lend
assistance if necessary, still, in practice, it required justification
by sufficient evidence in hand. This was obtained in various ways. The
inquisitor might learn that public rumor designated a person as guilty
of heretical acts and might cause secret inquest to be made in
verification. In the prevalent forms of heresy, such as that of Jewish
and Moorish apostates, the most frequent source of incrimination was the
confessions of accomplices on trial or under Edicts of Grace. In other
matters, the initiative came largely from denunciations, which were
stimulated and favored in every way, especially by the secrecy which
relieved the informer from responsibility.
No duty was more strenuously inculcated on the people than that of
denouncing any utterance or act partaking of _calidad de oficio_--that
is, which came within the cognizance of the Holy Office. Divine law
required this under penalty of mortal sin, and ecclesiastical law under
that of excommunication.[1412] From this no ties of blood furnished
release. It is true that, under the imperial jurisprudence, accusations
of near relatives were forbidden; a mother could not accuse a son except
of offences against herself and even a man brought up in another's house
could not accuse his benefactor.[1413] But Simancas, while highly
approving of this, says that there are two cases in which a son must
accuse his father--one, when under examination by the Inquisition, the
other, when the father is a persistent heretic and, as the obligation of
the son to the father is of the highest, this includes all other
cases.[1414] The Instructions of 1484 offer mitigation of punishment to
minor children who spontaneously denounce their parents, and Alfonso de
Castro relates that he denied absolution to a young man, perfectly
orthodox in faith, who in confession, in response to interrogatories,
admitted that his father was a Judaizer, but refused to denounce him in
view of the consequences to himself of poverty and infamy.[1415]
The annual publication of the Edict of Faith, with its accompanying
anathemas, proclaimed this imperative obligation in the most solemn
manner and, at the same time, furnished a list of the offences to be
denounced, thus rendering every one a spy upon his neighbor. The
denunciation might be either verbal or written and, if written, either
anonymous or signed; it could be made to a tribunal or to any
commissioner, and it was expected to contain the names of witnesses to
be summoned in its support. These denunciations came in more frequently
after the publication of the Edict of Faith, and also about Easter, when
the faithful confessed in preparation for the indispensable paschal
communion, and the confessors enquired whether they had denounced
whatever they had heard, seen or understood that was, or appeared to be,
contrary to the faith or to the rights of the Inquisition, and
absolution was withheld from those refusing to do so. This denunciation
and the evidence of the witnesses summoned in its support, or the
testimony acquired by inquest, or by the confessions of those on trial,
constituted the _sumaria_--the _instruction préparatoire_ of French
practice.
The tribunal, however, was held not to act summarily in so grave a
matter as an arrest casting infamy on an entire lineage. After the first
tumultuous period, when no one was safe from arbitrary imprisonment, the
portions of the evidence which conveyed the nature of the charge,
without the name of the accused, underwent the process of
_calificacion_, or censorship, to determine whether they presented
_calidad de oficio_. We have seen, in the cases of Carranza, of
Villanueva and of Froilan Díaz, how important was the function of the
_calificadores_, or censors, and how much sometimes depended on the
manner in which the evidence was submitted to them. In the
rehabilitation of the Nuns of San Placido, they were careful to declare
that, if they had had to act upon the testimony laid before their
predecessors, they would have reached the same conclusion. Against such
garbling there could be no guarantee, in the profound secrecy enveloping
every act of the tribunals.
[Sidenote: _CALIFICACION_]
The calificadores were learned theologians, whose duties we have already
referred to (p. 263). Some were regular appointees, but any one could be
called upon, nor could he refuse to serve without pay. When there was
not unanimity, the inquisitors decided or submitted the case to others.
There seems to have been no settled or absolute rule. In 1634, in the
case of Jacques Garrigues, a wandering French beggar, professing
sanctity and curative powers and claiming to be a messenger of God, not
without indications of insanity, the two inquisitors joined with four
calificadores in considering the evidence before arrest, but this seems
to be exceptional.[1416] The resource of calling in successive
calificadores in obscure cases frequently led only to a hopeless
divergence of opinion, bewildering rather than assisting the
inquisitors. When, in 1640, the Bernardine Fray Tomas de Nieba defended
some subtle conclusions in scholastic theology, there were eleven
calificadores called into service, of whom some found nothing to
censure, others that the doctrine was a condemned one, others again that
it merely approached to error. In the same year, in the similar case of
the Franciscan Fray Juan Lazaro, one calificador pronounced his doctrine
to be obscure and perilous, if not formally, at least virtually,
heretical; another that to defend it was a most grave error, while two
others could find in it nothing objectionable. Yet Lazaro was put on
trial and, after the case had traversed its various stages for months,
it was suspended, though Lazaro was ordered in future to teach the
opposite opinion.[1417]
At length a carta acordada of October 8, 1708 sought to regulate the
system. In all cases requiring calificacion, a correct extract was to be
made from the evidence as to the acts and speeches charged, with all
circumstances contributory to a clear understanding. This was to be sent
to one of the calificadores, who was to keep it at least three days, and
return it with his opinion, not only as to the requisite censure but
also as to the defence that could be made. It was thus to pass from one
to another, after which the tribunal was to call them together to frame
a common opinion. Books and papers were to be treated in the same way
and there was no obligation of secrecy between the parties called
in.[1418]
All classes of charges were not subjected to calificacion, for there
were numerous and important groups of offenders who were deprived of
this safeguard, slender as it was at the best. Judaizers and Moriscos,
renegades, bigamists, those administering sacraments without being in
priestly orders and solicitors of women in the confessional were not
entitled to it.[1419] Thus taken as a whole, up to the middle of the
eighteenth century, the major portion of the business of the tribunals
was exempt from calificacion and practically it was limited to the
refinements of venturesome theologians, to the degree of heresy involved
in more or less picturesque blasphemy, the culpability of careless or
reckless talkers, and the implied pact with the demon in the
conjurations of wise-women and treasure-seekers. Like much else in the
Inquisition, designed for the protection of innocence, its working
effect was reduced to a minimum.
[Sidenote: _THE CLAMOSA AND THE CONSULTA_]
At what period calificacion was introduced it would be difficult to say
with precision. Llorente assures us that in 1550 it was not as yet in
use.[1420] This is incorrect for, in 1520, we find the Suprema ordering
that calificadores shall not be appointed without its consent and on the
simple petition of aspirants.[1421] By that time the custom was
evidently established and, in 1556, the Suprema explained it, not as a
protection of innocence but as a means of placating the Ordinaries and
showing them that inquisitors were not seeking to extend their
jurisdiction beyond heresy.[1422] The Instructions of 1561 merely
provide that, when there is sufficient testimony in a case pertaining to
the Inquisition, if it requires calificacion, theologians of approved
learning and character shall be consulted, thus inferring that this is
unnecessary when ceremonies known to be Jewish or Moorish are concerned,
or manifest heresy or fautorship.[1423] The Suprema felt it necessary,
in a carta acordada of July 11, 1569, to warn calificadores to confine
themselves to defining the nature of propositions submitted and not to
say whether or not there was _calidad de oficio_--a limitation which
they outgrew. Another carta of November 22, 1577, shows that it had
become by this time a recognized preliminary to arrest, by ordering
that, if an arrest should be necessary without it, there should at least
be calificacion before the formal accusation is presented, which
occurred in a later stage of the proceedings.[1424]
In the gradual absorption of all initiative by the Suprema, so that
eventually no arrest could be made without its order, the importance of
calificacion declined. Calificadores continued to be appointed, but they
seem to have been rather ornamental than useful members of the official
family, if we may judge from the variation in the number attached to the
different tribunals. The table in the appendix shows that, in 1746,
Madrid and Llerena had none, while Valencia rejoiced in forty. They
still had a function, however, in the censorship of the press, and
tribunals that were insufficiently supplied could always summon
theologians to their aid when necessity demanded their services.
* * * * *
As the sumaria was careful to recite that there was sufficient proof,
that all formalities had been observed, and that further investigation
was unnecessary, the calificacion completed the preliminaries. The next
step was the presentation by the fiscal of his _clamosa_ or demand for
the arrest of the accused. In the fully developed formula of this, he
presented and swore to the sumaria, and embodied the calificacion as
showing that the culprit merited the severest punishment, to which end
he asked for arrest and imprisonment, with sequestration or embargo of
property, promising in due time to present a formal accusation and
asking that meanwhile the registers of the other tribunals be examined
with the view of securing further evidence. Forms of this were provided
suited to the various classes of offences and to the cases of the absent
or dead.[1425]
It manifests a praiseworthy desire to avoid precipitate action that a
consulta de fe, or consultation of the inquisitors with the consultores
and Ordinary, was still technically required before issuing the warrant
of arrest. The existence of something of the kind is indicated, as early
as 1509, by an order of the Suprema that when there is not unanimity it
must be consulted before arrest is made.[1426] Yet, in 1521, a special
order requiring such a consulta de fe in the case of Moriscos would
infer that the rule was otherwise obsolete.[1427] That it was so is
shown by subsequent cases and, even as regards Moriscos, in a number of
prosecutions at Daimiel, between 1540 and 1550, the warrants are issued
immediately on presentation of the clamosas.[1428] The Instructions of
1561 revived the practice, but did not enjoin it as essential, leaving
it virtually to the discretion of the inquisitors.[1429] After this we
find it frequently observed and, in the case of Elvira del Campo,
accused of Jewish practices, in 1567, there is a consulta prior to the
clamosa and a second one afterwards before the warrant of arrest is
issued.[1430] When solicitation in the confessional was subjected to the
Inquisition, the desire to shroud the offence in obscurity led to a
regulation, in 1564, that only the vicar-general should be called into
consultation and, in 1600, even he was excluded; the inquisitors were to
consult only with each other and then await the orders of the
Suprema.[1431] As the rule became established that the Suprema was to be
consulted before arrest, these formal preliminaries became of less
importance and, in the eighteenth century, we are told that the consulta
was no longer held, the reason alleged being that the inquisitors then
were jurists.[1432]
[Sidenote: _ARBITRARY ARREST_]
Apart from these formalities, there was an evident desire on the part of
the chiefs of the Inquisition to prevent injustice arising from hasty
and inconsiderate action. In the reformatory Instructions of 1498,
inquisitors are ordered to be careful and to arrest no one on
insufficient evidence--an order the frequent repetition of which proves
how little it was regarded.[1433] It was thoroughly understood that the
mere fact of imprisonment inflicted indelible infamy and all the
authorities urge the utmost caution in the exercise of this tremendous
power.[1434] In theory, at least, stronger proof was therefore required
by inquisitors than by the judges of other courts; it ought to be as
strong as that which justified torture--what was known as
_semiplena_--but this merely consisted in the evidence of a single
unexceptionable witness; when there was apprehension of flight, less was
required and Sousa, a Portuguese authority, tells us that in heresy
flight is always to be apprehended.[1435] It is true that, in 1630, the
Suprema ordered that arrest on the testimony of a single witness should
not be made without its permission, but this exercised little restraint.
Such an arrest was made, in 1638, of Domingo de Mezquita, with a sort of
apologetic explanation that he was a Portuguese and had already been
tried on the same charge of Judaism.[1436]
One or two cases will show how little real benefit in practice the
accused derived from all this elaborate parade of preliminary
precautions. In Toledo, June 5, 1501, the fiscal informed the tribunal
that Isabel, daughter of Alvaro Ortolano, was defamed for heresy and
asked for her arrest. The inquisitors replied that they would order it
if sufficient evidence was presented, whereupon he offered the testimony
of a prisoner that she had heard Isabel say that she observed the Jewish
fasts and on this a warrant of arrest was promptly issued. Considering
that the accused was a child ten years of age her summary arrest on
evidence so flimsy shows how little impression the Instructions of 1498
had produced.[1437] The Toledan inquisitors did not grow more cautious
with time. September 16, 1541, two workmen on the cathedral appeared
before them and accused Juan García, a fellow-workman, of having
revelations from God in his dreams. A warrant was at once made out; the
portero was ordered to have him present that afternoon and, if he
demurred, to take him to the prison. He accordingly had his first
audience the same day.[1438]
In these arbitrary proceedings the function of the fiscal was purely
fictitious and he and the inquisitor, if they had any sense of humor,
must have smiled as they acted their parts in the tragi-comedy. In 1532,
before Fernando Loazes, the distinguished inquisitor of Barcelona, the
fiscal appears and states verbally that it has come to his knowledge
that, when the impenitent and relapsed heretic Joana, wife of Gil
Tacis, was to be arrested, her husband had sought to conceal her,
wherefore he should be arrested as a fautor of heresy and impeder of the
Inquisition and, in due time, the proper "information" would be
presented. The only evidence was that of Joana, taken by Loazes himself,
but he gravely demanded to be informed and he ordered the summoning of
all the witnesses whom the fiscal desired to produce. Then the fiscal,
to enlighten him, presents the evidence from the record; Loazes orders
it to be inserted in the acts of the case, pronounces it sufficient and
issues the warrant of arrest.[1439]
In the secrecy of the tribunals there was thus nothing to prevent the
exercise of discretional power to oppress the innocent as well as to
punish the guilty. That it was so abused appears from the remonstrance
of the Córtes of the kingdoms of Aragon, about 1530, complaining that
the inquisitors arrested people for the slightest causes and on mere
report, and then sometimes dismissed their prisoners without penance or
with very slight sentences, thus inflicting infamy on the parties, their
kindred and descendants, which was not effaced by the release. Arrests,
they urged, ought to be made only for grave offences and on sufficient
proof. To this the inquisitor-general disdainfully replied that the laws
had been observed; if the complainants thought otherwise, let them
produce instances.[1440] This spirit did not promise amendment and,
although the Instructions of 1561 prescribed caution and restraint,
matters must have grown worse through subordinates aping their masters,
for the Concordia of 1568 provides that familiars must not be allowed to
make arrests without orders from the inquisitors.[1441]
[Sidenote: _SEGREGATION OF ACCUSED_]
Even after the Suprema had required to be consulted prior to ordering
arrest, small respect was paid to formalities. In criticizing, August
25, 1695, the report of cases pending in Valencia, the Suprema expresses
astonishment that an arrest should have been made previous to the
calificacion of the charges. In this case the accused was thrown into
prison October 22, 1694, and the calificacion followed, February 9,
1695, but the Suprema contented itself with this rebuke and merely
ordered the prosecution to be pushed and not be allowed to become
immortal.[1442] The Suprema need not have been surprised at this
trifling informality in view of the atrocity of a group of cases
comprised in a Valladolid report of July, 1699. Francisco Hernández
Castañeda had been imprisoned August 30, 1697; his case is reported in
the same state as before, there being no testimony against him. Baltazar
González Cardozo, aged 14, was arrested August 15, 1698, and there is no
evidence against him. Ana Gutiérrez, aged 9, was arrested August 14,
1697, and there is nothing against her as yet. Leona de Paz was arrested
September 15, 1698, and there is no proof against her.[1443] Thus these
poor creatures had lain in gaol for one or two years without a scintilla
of evidence to justify their arrest, and the fact that the tribunal
coolly makes this report indicates that there was in it nothing unusual
or regarded as scandalous.
Among the reforms which Carlos III attempted to introduce towards the
close of the eighteenth century was that of requiring manifest proofs of
heresy as a necessary preliminary to arrest, but Llorente informs us
that his decrees were not obeyed.[1444] Still, in time there was an
improvement in this as in so many other directions, perhaps partially
influenced by the poverty of the Holy Office and its desire to avoid the
maintenance of poor prisoners. Thus, in the case, at Cuenca, of Juan
Francisco de la Landera, a _jubilado_ notary of confiscations,
prosecuted in 1816 on suspicion of being the author of a memorial to the
king and of other offences, he was allowed to be at large during nearly
the whole course of the trial and it was not until after the
presentation of the accusation and his reply that it was voted to
imprison him and embargo his property.[1445]
* * * * *
The reason commonly alleged, in deprecation of reckless arrest, was the
infamy cast on the accused and his kindred, but this was by no means the
only infliction peculiar to the Inquisition. There was special hardship
in the segregation at once imposed on the prisoner. From the moment of
his arrest, the utmost care was taken to prevent his exchanging a word
with any one. When it took place at a distance, the commissioner was
instructed to observe this with the utmost rigor, both in confining the
prisoner on the spot and in sending him to the tribunal. If two or more
were arrested simultaneously, they were strictly kept apart, both in
prison and on the road. Thus, in 1678, when several Judaizers were to be
seized at Pastrana, the instructions from Toledo were that they were at
once to be shut up, _incomunicado_, in houses of officials, and to be
sent to Toledo one by one, observing rigid precautions that they should
speak with no one. Each was to be under charge of a familiar and, if
there were not enough in Pastrana, those of the neighboring towns were
to be called upon.[1446] The misery caused to the prisoner and his
family by the arrest was intensified by this sudden inhibition of all
exchange of affection and all instruction and advice as to what they
were to do in their affliction.
[Sidenote: _IMPORTANCE OF SEQUESTRATION_]
Another feature, falling with especial severity on the poorer classes,
arose from the rule of the Inquisition to cast all expenses on its
prisoners. The officer who made the arrest was instructed to bring with
him a specified sum to be deposited with the alcaide of the prison for
the maintenance of the prisoner; also a bed for him to sleep on and
clothes for him to wear. If, as usually was the case, the required
amount was not found in cash among the effects of the culprit, enough of
his household goods was sold at auction to meet the demand. The working
of this is seen in the case of Benito Peñas, a poor ploughmaker of
Cobeña, near Alcalá de Henares--a half-crazed devotee, who created
scandal by denying that Christ had died on the cross. The order for his
arrest by the Toledo tribunal, January 25, 1641, required the familiar
to bring with him 30 ducats for expenses and a bed. The only coins found
in Benito's possession amounted to 19 cuartos vellon, equivalent to
about 2-1/2 reales: so on Sunday, February 10th, all his little
possessions of tools, furniture and clothing, except the garments on him
and two old shirts, were sold at auction. Even the rosary in his hands
was included, but the total proceeds, after deducting charges, amounted
to only 20 ducats. Of this about a half was absorbed by the expenses of
guards and conveyance to Toledo, and only 105-1/2 reales were delivered
with him at the carceles secretas, out of which the tribunal refused to
pay anything to the familiar for his time and labor. Benito's mental
unsoundness developed rapidly in his incarceration and, in August, he
was discharged as irresponsible. The authorities of Cobeña were obliged
to take him home at their own expense, and doubtless to support him
afterwards, as he had been deprived of all means of earning his
livelihood, while, with customary inquisitorial logic, in spite of his
insanity, he was condemned to wear a parti-colored garment of gray and
green, in penance for his heresy.[1447] In the case of a religious, if
his _peculium_ was insufficient to furnish the desired amount, the
superior of his convent was required to complete it.[1448]
* * * * *
Another feature of extreme severity which, however, was common to
secular and episcopal as well as to inquisitorial practice, was the
sequestration which accompanied arrest in all cases involving
confiscation. The losses and hardships incident to this were fully
recognized in secular proceedings and, in 1646, the Córtes of Aragon
endeavored to mitigate them and also to prevent the frauds which were
admitted to be frequent.[1449] On the other hand, to have the property
of the accused in the power of his family was to risk its dissipation
before the conclusion of the trial; it had to be preserved at all
hazards and the only way to do this was to make sure of it by seizure at
the moment of arrest. The importance attributed to this by the Holy
Office is seen in the details which form so prominent a portion of the
Instructions. It is true that the canon law strictly prohibited the
seizure of property, before a sentence of condemnation had been duly
rendered, but this had been framed at a time when the temporal lords
enjoyed the confiscations, and was disregarded when they enured to the
benefit of those who decreed them.[1450]
The alguazil executing a warrant of arrest was accompanied by the
_notario de secrestos_, or notary of sequestrations, who at once seized
all visible property and compiled a minute inventory. It was then placed
in the hands of a _sequestrador_ or _depositario_, who held it until the
case was decided, when, if confiscation was decreed, he handed it over
to the receiver; if not, it was returned, or what was left of it, to the
owner.
In the earliest instructions, the receiver and his scrivener accompanied
the notary of sequestrations, and two copies of the inventory were made.
Much conflicting legislation followed, directed to finding means for
preventing the receiver from appropriating portions of the
sequestrations, but the trouble was perennial and, in interrogatories
drawn up for inspectors on their visitations, there was one which
required all officials to declare whether the receiver had taken any
sequestrated property before the case of the owner was determined.[1451]
[Sidenote: _THE INVENTORY_]
Irregularities continued and, in 1633, some respect was paid to the
interest of the accused by a rule that a representative appointed by him
should be present, with the receiver and notary, when seizing the
property and making the inventory. In 1635, this was followed by
requiring the senior inquisitor to report promptly to the Suprema all
details as to kind and amount of property sequestrated, and whether any
collusion or secreting of goods had occurred--a mandate of which the
frequent repetition shows the difficulty of its enforcement.[1452]
Finally, in 1654, Philip IV assembled a junta to formulate regulations
by which, when farmers of the revenue were arrested, the interests of
the royal fisc, of all creditors, and of the owner if acquitted, might
be protected. These provided that the first duty, on making an arrest,
was to search the prisoner for papers and keys. He was then told to name
a representative to be present at the sequestration and inventory. If
the hour suited, this followed at once, otherwise it was postponed to
the next day, padlocks being meanwhile placed on everything, and one or
two guards being stationed. The inventory was made in the minutest
detail, room by room, specifying the contents of all desks, trunks,
chests and other receptacles. The keys were then delivered to the
depository selected, who receipted for the property and became
responsible for it. Then followed immediately the _audiencia de
hacienda_, in which the prisoner was made to give an account of all of
his possessions. If among the effects seized were some of a nature
requiring them to be sold, or if it was necessary to provide for the
food of the prisoner, they were disposed of at auction, after
appraisement made in the presence of his representative.[1453]
As the inventory was the basis of all further proceedings, from a very
early period rigid instructions were issued that it should be complete
to the minutest detail. Every paper found in the prisoner's possession
was to be enumerated; in 1607 the Suprema complained of negligence in
this respect and ordered that in future not only must every paper be set
down but also its nature and contents.[1454] Such inventories as I have
had an opportunity of examining show the laborious trifling entailed by
these instructions. In the case, for instance, of Margarita Altamira, in
1681, the list covers four closely written pages, consisting of entries
such as "an old pair of scissors," "a worn tow towel," "an old broom,"
"an old earthen pot," etc. She was the wife of an agricultural laborer,
apparently separated from her husband and owning nothing save her little
household plenishing and clothes.[1455] Official zeal sometimes outran
discretion, gravely affecting the interests of others, as when, in 1597,
the Suprema was obliged to issue instructions that, when heretic
ship-masters were arrested in the sea-ports, only their own effects were
to be seized and not the ships and cargoes.[1456] It was unavoidable
that the property of third parties, in the hands of the accused, should
be included in the sequestration and, as we have seen, from an early
period the orders were that such goods should be surrendered as soon as
owners should prove their rights. Such cases were of perpetual
occurrence, causing much damage or inconvenience, and were attended with
exasperating delays. The daughters of Brianda Royz, reconciled with
confiscation, presented, March 19, 1530, a claim for some seventy
articles of household furnishing, which were not adjudged to them until
July 7, 1531. The list included a pair of chickens which had doubtless
long before disappeared in the olla.[1457] The case of Margarita
Altamira affords some quaint illustrations of the annoyances inflicted
on those who chanced to have had dealings with the accused. She was
arrested in November, 1681 and, on April 8, 1682, the priest Francisco
Juan Sans presented a petition representing that, among the effects
sequestrated, was a lot of shirts and undergarments of which he
furnished a list--Margarita apparently having been his washer-woman. The
paper was endorsed to be filed away and its proof to be received in
proper time. The proper time was slow in coming for, in August, the good
padre again petitioned for his shirts, but whether he eventually
recovered them the documents fail to show. A year later, August 3, 1683,
Margarita Batlle made application for a cradle which she said that she
had lent to Altamira. The case was referred to the receiver who reported
that there was in the sequestration an old cradle, which if sold might
fetch two or three reales. Then, on August 25th, the inquisitors
resolved that, as it was of so little value, it might be surrendered to
her on her proving ownership under oath and, on October 6th, she was
duly sworn and examined; she described the cradle, told from whom it was
bought at the price of two reales, explained why she had lent it and why
she had not reclaimed it prior to Altamira's arrest, whereupon it was
ordered to be restored to her.[1458] Evidently there was no haste in
relieving the necessities of those who were caught in the sweep of
sequestration.
[Sidenote: _PROVISION FOR FAMILIES_]
It was very properly a cardinal principle, frequently reiterated, that
sequestrated property was sacred and was not to be diverted, however
great might be the necessity.[1459] It was easier, however, to enunciate
such a self-denying ordinance than to observe it, in an institution
practically secure from supervision. Ferdinand set the example by
selling or granting as favors numerous houses in Perpignan, abandoned by
fugitives before the Inquisition was in operation in Roussillon, and he
had no scruple in assuming the condemnation of the owners before their
prosecution had commenced.[1460] We have seen how, in 1644, the Suprema
admitted to Philip IV that, to satisfy his exigencies, it had sold
sequestrated property, for which the owners, who had been acquitted,
were clamoring.[1461] In fact, the use of such property became habitual
for, towards the end of the century, we find an official _depositario_
of the Suprema in charge of the sequestrations, who was accustomed to
meet, from the funds in his hands, the expenses of the Madrid tribunal,
subject of course to repayment. In one transaction of the kind, the
advance made July 3, 1680, was not refunded until November 17,
1681.[1462] The tribunal was thus exposed to the risk that its decisions
might be influenced by the condition of its account with the
depositario.
At first there would seem to have been no provision for the family of a
prisoner whose property was thus suddenly seized. They were cast adrift
and deprived of subsistence, regardless of the fact that confiscation
might not be decreed. In the early Instructions there is no arrangement
for their support during the trial, and any exceptions to this were
matters of favor, as when Ferdinand, July 11, 1486, wrote to the
receiver of Saragossa that, as the lands and personalty of Juan Navarro
had been sequestrated, as his children had no other support, and as one
of them had rendered him good service, all the rents and profits of the
estate should be paid to them during the pendency of the case.[1463]
Common humanity demanded that some attention be paid to the necessities
of the innocent and helpless, while confiscation was as yet uncertain,
and in time this severity was relaxed, though it cannot be positively
stated when this commenced. The earliest allusion to it, that I have
met, occurs in the memorial of Llerena, in 1506, which, while denouncing
the cruelty of turning the family into the streets at night, admits that
some allowance was made to them from the sequestrations. It complains,
however, that this was miserably insufficient and so irregularly paid
that sometimes months elapsed without anything being received. In one
case two little daughters of a rich prisoner perished of hunger, and
their elder sisters subsisted by beggary at night. A woman thus left
with ten souls dependent upon her was allowed twenty-five maravedís a
day, when two hundred and fifty were requisite, and even of this
pittance she had received nothing for three months.[1464]
The matter was one which called for regulation, and various experimental
instructions were issued from time to time. Absolute arrangements were
not easy to provide and, between 1538 and 1558, a number of utterances
show the difficulty of reaching a satisfactory result. The general
features of these are that the inquisitors are to consult with the
receiver and notary of sequestrations and assign an allowance
proportioned to the amount of the property and station of the
recipients, while consideration is to be given to the ability of
individuals to earn a living, provided it is not derogatory to their
rank.[1465] A definite policy was finally reached in the Instructions of
1561, which remained the standard. These provide that, if the wife or
children of a prisoner apply for support, he is to be consulted and, if
he so wishes, an allowance out of the sequestration is to be made to
them, proportioned to their station, but if there are some of an age to
work they must provide for themselves. This was a matter of grace and
not of right, for a subsequent regulation restricts the grant to a
limited time because the trial may be prolonged and it may be advisable
to discontinue the payments. In 1567 it was added that common clothes
and bedding could be given, but every article must be specified, as the
depositaries were apt to be too liberal unless restricted.[1466] It thus
became a settled principle that the family of a prisoner was to be cared
for out of the sequestration of its head, if he had property and, in the
printed form of a warrant of arrest, in 1696, this is specified as the
object of placing it in the hands of a depositary selected by the
prisoner.[1467]
[Sidenote: _THE SECRESTADOR_]
While recognizing the humanity of these provisions it may be questioned
how far they relieved the hardships of dependents, especially in the
later period, when the dilatory methods of the Inquisition prolonged the
trials inordinately. Unless an estate was unusually large, it was apt to
be speedily consumed by wasteful methods and the accumulation of
expenses. As we shall see hereafter, unless the accused was penniless,
the cost of his maintenance in prison was a first lien on his
sequestrated property and, if there was not ready money, his effects
were auctioned off to supply it. The strictness of the rule to pay all
expenses out of the sequestration is illustrated in the case of two
children of Antonio Enríquez Barrios, confined with their father in the
prison of the tribunal of Madrid. When they were discharged, 1423
reales, the cost of their clothing and food, were collected from the
sequestrated estate of their father, whose trial was unfinished.[1468]
It may be assumed, under such a system that, when the accused escaped
without confiscation, only a remnant of his property was restored to
him, especially as he had to accept on account from the depositario
whatever the tribunal had ordered to be paid out of the sequestration
and be content with the balance, while whatever he might owe for his
prison maintenance had to be paid before an order was issued to lift the
embargo. In this respect, a suspension of the case was equivalent to an
acquittal and entitled him to resume possession of what remained of his
property.[1469]
Of course nothing could compensate a man engaged in trade for thus
locking up during years all his business concerns. To such a one, arrest
with sequestration meant ruin, however clearly his innocence might be
demonstrated after the prolonged proceedings of the tribunal. A curious
inventory of a printing office thus seized shows the breaking up of a
business and the destruction of the means of livelihood. One item is "a
hundred and twenty reams of the third volume of Rodríguez, the book at
present in hand," which is highly suggestive of the loss inflicted,
without redress, on other parties concerned, as author or publisher, as
also of the sacrifice incurred by peremptory auction sales of such
material.[1470]
* * * * *
The office of secrestador or depositary would seem, in the earlier
period, to have been regarded as desirable, and it certainly offered
opportunities for the dishonest. That these were sometimes improved is
apparent from the case, in 1510, of Fernando de Mesa, a _jurado_ of
Córdova, who was secrestador of the estate of a certain Celamin. By the
time the latter was condemned, Mesa had died and the sequestrated
property was not forthcoming. He had placed four daughters as nuns in
the convent of Santa Ines and their share of the defalcation was thirty
thousand maravedís, but the convent pleaded inability to pay through
poverty and Ferdinand kindly forgave it the debt.[1471]
To the honest, however, the office was in every way undesirable. It
involved labor, anxiety and responsibility without payment but, when
selected and approved, the appointee was obliged to serve, under penalty
of excommunication and a fine of ten or twenty thousand maravedís. It
was recommended that, if possible, he should not be a kinsman of the
prisoner or a Converso, and he was always to be of good repute and
standing.[1472] If the accused was a householder, the house was locked
and the keys were given to the depositary; otherwise he was put to the
expense of storage; he was obliged to sign a paper subjecting himself to
the penalties imposed on him by the alguazil and pledging his person and
property to make good any deficiencies occurring through error or
negligence, for which he renounced his fuero and submitted himself
wholly to the Inquisition.[1473] The perplexities and tribulations to
which he was exposed are illustrated by those of Jaume Taxes, who served
as depositario in the case of Margarita Altamira. He appealed, April 26,
1682, to the inquisitors, representing that, when the sequestration was
made, he was given the key of the house, but he is now required to
surrender it to the owner and to have the goods stored safely; he has no
room for them in his own house and petitions to have them delivered to
some one else. No attention was paid to this and, on May 14th, the owner
of the house, a priest named Francisco Canudes, came forward with a
complaint; on March 26th he had obtained an order for the key, but Taxes
refuses to surrender it, wherefore he desires that he be forced to do so
and to pay him six months' rent.[1474] The documents fail to inform us
what was the solution of the complication which the tribunal had thus
created, but the affair illustrates the manner in which the Inquisition
was wont to call for gratuitous services and to pay little regard to the
convenience or interest of those on whom it imposed onerous duties.
[Sidenote: _LIMITATIONS_]
There were some limitations on the power of sequestration. It was
confined to property found in possession of the accused; whatever he
owned that was in the hands of third parties could not be sequestrated
and had to await sentence of confiscation before it could be
seized.[1475] An application of this principle led to the somewhat
remarkable rule that there could be no sequestration in prosecutions of
the dead, however convincing the proofs of guilt, because the
possessions of the offender had passed into the hands of third parties.
As early as 1537 this was prescribed by the Suprema, in a letter to the
tribunal of Barcelona, and it was embodied in the Instructions of
1561.[1476]
A more important limitation confined sequestration to arrest on charges
of formal heresy, and the fiscal was required in his clamosa to specify
whether or not he asked for it, though as late as 1575 the Suprema was
obliged to notify the tribunal of Valencia that heresy was a
prerequisite of sequestration.[1477] The definition of heresy, however,
was somewhat elastic and when, in 1573, a determined effort was made to
eradicate the general popular belief that fornication between the
unmarried was not a mortal sin, it was ordered to be prosecuted as
heresy with sequestration.[1478] When formal heresy was involved,
sequestration was to be decreed, whether the accused had property or not
and, in 1665, the Suprema rebuked the tribunal of Barcelona for omitting
it in the case of a galley-slave.[1479]
The Inquisition at length grew restive under the limitation of
sequestration to formal heresy, for, as heretics grew fewer, it exempted
a vast proportion of the cases which formed the current business of the
tribunals, consisting of blasphemy, sorcery, bigamy, solicitation,
marriage of clerics, propositions scandalous, audacious or ill-sounding,
the possession of prohibited books, and, in fact, as we are told, all
offences which did not in law import confiscation.[1480] In these cases
the warrant of arrest, during the sixteenth century, instructed the
alguazil to arrange so that the prisoner could leave his property in the
hands of any one whom he should select, to be used for the maintenance
of himself and his family, and an inventory was to be made to prevent
misappropriation.[1481] In time the Inquisition outgrew this
consideration for the innocent sufferers, which reduced it to sharing
with them in the use of what was apt to disappear in the course of the
protracted trials. To remedy this and without, so far as appears, any
warrant of law, the expedient was devised of substituting for the word
sequestration the euphemistic term of embargo, and ordering the property
of all prisoners not liable to confiscation to be embargoed. The words
had the same meaning and, in the earlier time, were used as identical,
often copulatively as "embargo y secresto"--a mere pleonasm of legal
phraseology, the context showing that sequestration was meant.[1482] The
slight shade of difference was that in embargo the prisoner selected the
depositary who was to hold the property and pay from it the expenses of
his maintenance in prison during his trial.[1483] Thus sequestration,
under the flimsy veil of calling it embargo, became a matter of course
in all arrests and the fiscal was instructed, when the calificacion was
of formal heresy, to ask for sequestration, in other cases for embargo
and, when frailes were the culprits, for embargo of their peculium and
papers. So universal was this that, in 1665, the Suprema required the
Barcelona tribunal to furnish reasons for not embargoing the property in
any case of arrest for minor offences.[1484] So it continued to the end.
In 1815 we find numerous cases of embargo in arrests on charges of
bigamy, solicitation, irreverence, propositions and the like, while the
Dominican Fray Tomas García, for celebrating mass without priests'
orders, had his peculium embargoed.[1485]
[Sidenote: _ILLUSTRATIVE CASE_]
In this illegal extension of sequestration there is something peculiarly
heartless. When the offence charged inferred confiscation, there was
some excuse for making sure that the property would not be secreted or
dissipated, but in minor cases to subject the offender and his family to
the hardship, and perhaps ruin, caused by seizing his property and
holding it during the leisurely progress of his trial, merely in order
to secure to the tribunal the reimbursement of his maintenance in
prison, shows how thoroughly hardened the Holy Office had become to
human suffering and how its selfish greed stifled all the promptings of
humanity.
* * * * *
A practical illustration of the process of arrest and sequestration is
furnished by the case of Ana de Torres, a woman of twenty-two, recently
married to Gaspar Agustin, a confectioner of Ciudad Real. Testimony of
Judaism had been gathered against her and, on May 9, 1680, the Toledo
tribunal ordered its familiar, Don Alvaro Muñoz de Figueroa, a Knight of
Santiago, to arrest her, sequestrate her property and send her to Toledo
with bed and clothing and 100 ducats. On May 17th Muñoz reported that,
after ascertaining her address, he had gone to her house at nine o'clock
that night, with a notary, familiar and servants, had carried her off to
his own, turning out the husband and placing two guards, so that the
sequestration could be made the next day. From what he could see, all
the contents of the house was not worth 100 ducats and he was told that
they belonged to the husband, for she had come to Ciudad Real in
September with nothing but her person. Moreover she was five or six
months gone with child. He asked for instructions, which were given in
apparent disregard of the husband's rights, for he was told to make the
sequestration and send her with her bed and clothes and whatever he
could get for her things. On May 24th he reported that he had started
her on her journey with 400 reales (about 36 ducats) which was all that
he had realized on the sale of the effects. Successive relays of
familiars carried her gratuitously and the next day the receiver of
Toledo acknowledged the receipt of the 400 reales to pay for her food.
Then, on July 6th, the alcaide reported that she was suffering from an
inflammation of the throat which, in her condition, threatened serious
complications. The _medico_ was called in, who prescribed bleeding and
gargles and removal from the confined air of the prison. She was taken
to the house of the alcaide, where she was duly bled and, on July 18th,
was sufficiently recovered to ask for an audience. In due time, on
September 13th, the alcaide reported her confinement and that he had
provided a midwife, when he was ordered to take care that she had
everything necessary for her recovery and comfort. On September 29th the
child was baptized and the mother brought back to the prison, when she
was placed in a cell with two other women and, in October, orders were
drawn for 146 reales to pay for the clothes and swaddling-bands of the
infant and for 14 reales to the chapel of the cathedral for its
baptism.[1486]
The redeeming features of these latter details afford a welcome relief
to the sordid eagerness of the Inquisition in grasping everything within
its reach in order to escape the costs of persecution, regardless of the
misery which it inflicted. In the present case we learn nothing as to
the husband, presumably innocent, thus turned out of his house and
stripped of his furniture. This was no concern of the Holy Office.