EVIDENCE.
In criminal procedure, the character of admissible evidence and the
methods employed to test its veracity are of such determining importance
that an investigation of the system followed by the Inquisition is
necessary if we are to estimate correctly its administration of justice.
In this, the fact must be borne in mind that the complicated rules of
evidence, peculiar to English law, have grown out of trial by jury,
where those who have to pass upon the facts are presumably untrained to
estimate testimony, so that it has to be carefully sifted before it is
allowed to reach them, while that which is admitted is subjected to the
searching process of cross-examination. All this had no place in the
systems which Continental Europe inherited from the civil law. The judge
was assumed to be a trained jurist, equipped to distinguish truth from
falsehood, so that the flimsiest evidence might be brought before him,
secure that its worthlessness would not affect his judgement, while it
might afford some clue leading to the truth. The defects of this were
greatly exaggerated in the Inquisition, where unlimited discretion was
allowed to judges, who were mostly theologians eager to prove and to
punish the slightest aberration from the faith, and where the secrecy
preserved as to the names and identity of the accusing witnesses
precluded all thought of cross-examination, although the story of
Susannah and the Elders might well have conveyed a warning as to the
danger of unjust judgement by an unassisted bench.
In the ancient Castilian law, both parties to an action saw the
witnesses sworn, but the judges examined them in secret, apparently as a
precaution against their being tampered with. Great care was taken as to
their character, and those were excluded who were of ill-repute or had
been imprisoned, or perjured, or were Jews, Moors, heretics, apostates,
or who were interested in the case, or dependents on one of the parties,
or were less than fourteen years of age, or very poor, unless proved to
be of good fame, while, in criminal cases, no witness was received who
was under twenty and no member of a religious Order.[1592] In Aragon,
the utmost care was prescribed as to the character of witnesses; if not
personally known to the judge, the fact was to be entered upon the
record and the judge was required to cross-examine them personally as to
all minute details that might lead to the exposure of fraudulent
testimony.[1593] Under the civil law, parents and children were not
admitted to testify against each other nor could a freedman be a witness
against his patron.[1594]
[Sidenote: _WITNESSES FOR PROSECUTION_]
All these precautions which the experience of ages had shown to be
necessary as guards against injustice under systems of procedure where
the judge was also in some sort a prosecutor, were cast aside by the
Inquisition in its zeal to preserve the purity of the faith. The
grossest partiality was shown in the distinction drawn as to eligibility
between witnesses for the prosecution and those for the defence. For the
former there was no disability save mortal enmity towards the accused.
From the earliest times the Church had prescribed fourteen as the
minimum age for witnesses[1595] and, in Spain, where majority was not
attained until the age of twenty-five, minors younger than that were not
admitted in criminal cases. Accordingly, in the records of the
Inquisition, witnesses are customarily described as _mayores_ or
_menores_, but no difference was made in accepting their testimony, and
Rojas tells us that formerly he thought that heresy could not be proved
by two witnesses under twenty-five, but the rule is that the fiscal is
not bound to prove that his witnesses are legal; everyone is presumed to
be so and his evidence must be received until objection is made, which,
considering that their identity was most carefully concealed from the
defence, is tantamount to saying that none could be rejected on that
score.[1596] Witnesses of the tenderest years were therefore admitted
without scruple. In the case of Juan Vazquez, tried in Toledo for
sorcery in 1605, one of the witnesses was a girl of twelve. In the same
tribunal, in 1579, a witness only eleven or twelve was heard against
Francisco del Espinar, for maltreating a cross, and the culprit, who
was only thirteen, was held to be responsible.[1597] Witnesses under
twelve were not sworn, because they were deemed incapable of
understanding the nature of the oath, but their evidence was received
and recorded without it, as appears in the report of a Valencia auto de
fe in 1607.[1598] In the Roman Inquisition the canon law was treated
with more respect, and the fiscal was not allowed to present a witness
below the age of fourteen.[1599]
There would seem to have been at first some discussion as to the
admissibility of the evidence of slaves against their masters, but it
was settled, in 1509, by a provision of the Suprema, declaring it to be
legal but as, in cases of heresy, they were working for their liberty in
convicting their masters, their testimony should be carefully
scrutinized and, if it appeared doubtful, it should be validated by
torturing them.[1600] There was also a question as to Jews, for laws of
the Fuero Juzgo (Lib. XII, Tit. ii, n. 9, 10) forbade them from
testifying against Christians, but they were received in the Old
Inquisition and the New was not more rigid.[1601] As regards kindred,
Simancas tells us that, although not allowed to testify for the
prosecution in other crimes, in heresy they are the best witnesses, as
being beyond suspicion of enmity and they must be compelled to give
evidence because religion is to be preferred to kinship.[1602] In fact,
a large portion of evidence was derived from them, for no confession was
accepted as complete that did not include denunciation of accomplices,
and those who confessed to save their lives were perforce obliged to
betray their families. The agonizing struggle, thus induced between
natural affection and self-preservation, is illustrated in the case of
María López, in 1646, at Valladolid. For nearly four months she
resolutely denied everything, but her endurance was at last exhausted
and, on April 25th and 27th, she confessed as to herself and others and
ratified it on May 7th. In her cell she brooded over this until June
25th, when the alcaide reported that she had attempted to strangle
herself with a strip of her chemise. The inquisitor hastened to her cell
and found the poor creature hiding under the bed. Interrogated as to
her motives, she said that a woman who had falsely accused her husband
and only daughter, as also her mother and an aunt, did not deserve to
live, whereupon she revoked her whole confession, both as to herself and
others. As a _revocante_, the pitiless rules of the Inquisition doomed
her to the stake; her fears triumphed and, on July 28th, she confirmed
her confession of April, except as regards her husband. On November 29th
she was condemned to reconciliation, confiscation and prison with the
sanbenito, and she appeared in the auto of June 23, 1647.[1603] The
Roman Inquisition was somewhat less inhuman and did not require husband
and wife to testify against each other.[1604]
It naturally followed from all this that, in the Spanish Inquisition,
the rule was observed that, where heresy was concerned, all witnesses
were admissible, no matter how infamous. Excommunicates were not
rejected and it would appear that even the insane were regarded as
competent for, in 1680, Thomas Castellanos, on trial in Toledo,
confessed to being a Lutheran, an atheist and to other heresies, for
which he was charitably sent, not to the stake, but to an asylum, yet he
was received as a witness against Angela Pérez, as to her utterances to
him while in prison. He was duly sworn by God and on the holy cross
although, if sane and an atheist, there could be no force in such an
oath.[1605] In short, the only incapacity of an accusing witness, was
mortal enmity. All other exceptions known to the secular law--minority,
heresy, perjury, infamy, complicity, conviction for crime--were
disregarded, although they might affect his credibility. Mortal enmity
was difficult of definition, but the doctors were liberal enough in
admitting to the benefit of the term any quarrel of a serious character,
but proof was rendered difficult by refusing to receive evidence
concerning it from any one within four degrees of kinship or affinity
with the accused.[1606]
[Sidenote: _WITNESSES FOR DEFENCE_]
It is true that some precautions were prescribed to guard against the
admission of worthless testimony, but their very enunciation proves how
unscrupulous was the current practice.
In 1516, the Suprema cautioned the tribunals that, when the veracity of
a witness was doubtful, his testimony must be verified and, in 1543, it
was ordered that the character of witnesses must be recorded so as to
serve as a gauge of the weight of their utterances.[1607] There was also
the formality used with all witnesses in commencing their examination by
interrogating them on what were called the _generales de la ley_, as to
their knowledge of the parties to the case and any enmity or other
matter that might prejudice their testimony, the answers to which were
always of course satisfactory. In the long run, however, all this, like
most other matters, was left to the discretion of the tribunals which,
in practice, admitted every body and used their evidence without
discrimination.
This applies solely to the witnesses for the prosecution. When we turn
to the defence, the contrast between the scandalous laxity of the rules
prescribed for the former, and the equally scandalous rigidity of those
applied to the latter, is the clearest proof that the object of the
Inquisition was not justice but punishment. Throughout the whole
judicial system the vital principle was that it were better that a
hundred innocent should suffer than that a single guilty one should
escape. Even the formula of the oaths administered to the two classes,
in 1484, shows how early the distinction was drawn between them. The
witnesses for the prosecution only received a solemn warning from the
inquisitor, while those for the defence were sworn under the most
terrible adjurations to God to visit, on their bodies in this world and
on their souls in the next, any deviation from the truth.[1608]
The rules as to witnesses admissible for the defence were carefully
drawn so as to exclude all who were likely to be serviceable to him, on
the ground that their evidence would be untrustworthy, the inquisitor
thus being sedulously guarded against misleading in favor of the
prisoner, while he was trusted to discriminate as to the adverse
testimony. Thus no kinsman to the fourth degree was allowed to testify
for the defence, even when the accused was blindly striving to prove
enmity on the part of those whom he conjectured to be the opposing
witnesses. No Jew or Morisco or New Christian could appear for him,
although they were welcomed for the prosecution, and the same
distinction applied to servants. As formulated in the Instructions of
1561, the accused was told that he must not name as his witnesses
kinsmen or servants, and that they must all be Old Christians, unless
his interrogatories be such as cannot otherwise be answered, and Pablo
García adds that, under such circumstances, he must name a number from
among whom the inquisitor may select those whom he deems most fit. It
became, indeed, a commonplace among the authorities that witnesses for
the defence must be zealots for the faith--_zelatores fidei_.[1609] Yet,
in fact, all this is of interest rather as a manifestation of the
pervading spirit of the Inquisition than from any practical influence
which it exercised on the outcome of the trials for, as we shall see,
the simulacrum of defence permitted to the accused was so limited that
in but very few cases did it matter whether he had or had not any
witnesses.
* * * * *
Prosecutions of course were not to be impeded by reluctant or
recalcitrant witnesses. The tribunals had full power to summon them and
to punish them for refusal. When they resided at a distance, it was
discretional either to have them examined by a commissioner, appointed
_ad hoc_, or to make them appear in person. In 1524 Cardinal Manrique
even decided that they could be brought from Aragon to Castile although,
as we have seen, this violated the fueros of Aragon, which forbade that
any one should be forced to leave the kingdom.[1610] The official
summons requires the witness to present himself before the tribunal,
within a specified number of days, under pain of ten thousand maravedís
and excommunication _latæ sententiæ_, this censure being pronounced in
advance with notice that, in case of disobedience, it would be published
and he would be proceeded against according to law. The summons was to
be served with the utmost secrecy and, like all other documents, was to
be returned to the tribunal with an endorsement of the date of
service.[1611]
[Sidenote: _EXAMINATION OF WITNESSES_]
Witnesses were compelled to give evidence and were liable to punishment
if suspected of withholding it. In Doctor Zurita's report of his
visitation of Gerona and Elne, in 1564, it appears that he arrested
Maestre Juan Fregola, canon of San Martin of Gerona, because he said
that he did not remember a matter at issue; his memory was thus
refreshed and he was released on giving the desired evidence.[1612] This
continued to the end. In 1816, the Suprema, in confirming the vote of
the tribunal of Cuenca to continue the case of Antonio Garcés, adds that
it must take the necessary steps against the witnesses who refuse to
testify.[1613]
* * * * *
The examination of witnesses for the prosecution was a duty of the
inquisitors. It was one, however, that they threw upon the notaries, who
were ordered by the Suprema, in 1498, not to take testimony except in
presence of the inquisitors, while Cardinal Adrian, in 1522, said that,
if the latter were too busy to be present, they must at least read the
testimony before the departure of the witness and make the necessary
re-examination.[1614] All this argues a very loose and slovenly system,
in a matter of such primary importance, inherited doubtless from the
early time, when the rush of prosecutions precluded all but the most
superficial conduct of business. In that period there had been devices
for the division of labor, for we hear of an official, in 1485, known as
the receiver of witnesses, and of payments made to clerics whose
presence was essential in the taking of testimony--devices which were
abandoned about the close of the century.[1615] As business declined,
the inquisitors seem to have taken a more active part in the examination
of accusing witnesses, except towards the end, when indolence led them
to issue commissions to conduct interrogations.
It was the rule that all examinations should take place in the
audience-chamber, except in extreme urgency, when the inquisitors might
hold them in their apartments or houses--a rule of which the Suprema had
to remind them, in 1538, and again in 1580.[1616] Witnesses were
sometimes sworn in groups, but were examined separately as a prudent
precaution against collusion.[1617] When the _estilo_ had been
perfected, there was a prescribed form for commencing the interrogatory,
by first asking the witness whether he knew or presumed the cause of his
summons; this was usually answered in the negative, when the next
question was whether he knew or had heard that any person had said or
done anything which was or appeared to be contrary to the faith, or to
the free exercise of the Inquisition. This had the appearance of careful
abstention from guiding him but, if he persisted in the negative, the
interrogatory rapidly assumed the aspect of letting him know for what he
was wanted and what was expected of him. Thus in the trial at Barcelona,
in 1698, of a woman named Ignacia, for sorcery, Jaime Guardiola asserted
that he knew little except that he had forbidden her his house, when
Inquisitor Valladares told him that the Inquisition had information of
his having employed her on several occasions which he described,
wherefore he adjured him, in the name of God and his Blessed Mother, to
examine his memory and tell the truth.[1618] Sometimes the inquisitor
went further and openly threatened a witness, warning him, by the
reverence due to God, to tell the truth and not to make the prisoner's
case his own.[1619] The Suprema might well restrain the excessive zeal
of its subordinates by instructing them not to intimidate witnesses or
to treat them as if they were the accused parties.[1620]
[Sidenote: _EXAMINATION OF WITNESSES_]
While thus with unwilling witnesses the inquisitor acted as counsel for
the prosecution, with those who were willing he made no attempt to
ascertain the truth of their stories. He asked leading questions without
reserve and abstained from any cross-examination that might confuse the
story and expose mendacity. When, in the trial of Juan de la Caballería,
at Saragossa, in 1489, his procurator asked that certain interrogatories
which he presented should be put to the witnesses, the inquisitors
roughly refused, saying that it was their official duty to find out the
truth for the discharge of their consciences.[1621] So long as witnesses
incriminated the accused, as a rule there was no effort to test their
accuracy or to obtain details of place and time or other points which
would facilitate defence against false charges. In the case of Simon
Nocheau, at Valladolid, in 1642, he succeeded in getting a series of
interrogatories put to the witnesses which exposed discrepancies that it
was the duty of the inquisitors to have discovered.[1622] Even the
Suprema recognized the injustice of this, in the case of a priest whom
the tribunal of Barcelona, in 1665, sentenced to imprisonment for
"propositions," and ordered it to recall the witnesses and cross-examine
them so as to verify their testimony and also to investigate whether
they were actuated by enmity.[1623]
To estimate the conscious unfairness of this it is only necessary to
contrast it with the treatment of evidence presented by the defence. The
handling of this was likewise wholly with the inquisitor. All that was
allowed to the accused was to offer a list of witnesses and a series of
interrogatories to be put to them. It was the duty of the inquisitor to
summon the witnesses and put the questions, or to forward the
interrogatories to commissioners for the same purpose, but he had full
discretional power to omit what he pleased, both as to witnesses and
questions. In fact, he received the interrogatories only _salvo jure
impertinentium et non admittendorum_, and he exercised this power
without supervision and without informing the accused or his advocate as
to what he threw out. In 1572, Luis de Leon on his trial presented six
series of interrogatories to be put to his witnesses of which three were
calmly thrown out as "impertinent."[1624] Not only was all knowledge of
this concealed from the accused but also the answers of the witnesses to
such questions as were permitted. It is true that, in 1531, even the
Suprema revolted at this and ordered the evidence in favor of the
accused to be submitted to him and to his advocate, so that it might not
be said that he was deprived of defence, but injustice prevailed and the
Instructions of 1561, in prescribing the suppression to the accused,
gave as a reason for it that the accused might thus be prevented from
identifying the adverse witnesses--thus showing how one denial of
justice led to another.[1625] The witnesses for the defence were
further subject to cross-examination which, at least in the earlier
period, could be conducted by the fiscal--an indecency almost incredible
in view of the crippling restrictions placed on the defence.[1626] In
fact the distinction recognized in the treatment of evidence for the
prosecution and for the defence is epitomized in the instructions sent
by Toledo, in 1550, to its commissioner at Daimiel, about taking
testimony in the cases of some Moriscos of that place. He is not told to
investigate the credibility of the mass of idle gossip and hearsay
evidence gathered for the prosecution but, when examining witnesses for
the defence, he is to cross-examine them strictly to ascertain what are
the grounds for their assertions.[1627]
* * * * *
There was one formality, not peculiar to the Spanish Inquisition,
designed to protect the accused from random or false accusations--the
ratification which was required of witnesses after an interval had
elapsed since their original depositions. This was occasionally of
service and, if preserved in its original form, would have been a
considerable safeguard in detecting perjury. It was conducted in
presence of two frailes, known as _honestas personas_, and the fiscal
was not allowed to be present, a prohibition which Manrique was obliged
to repeat in 1529.[1628] In the earliest period, ratification was
frequently omitted, doubtless owing to the haste with which the
Inquisition worked,[1629] but subsequently it was regarded as absolutely
essential. Its importance was shown by making it an imperative duty of
the inquisitor himself to take the ratification, either summoning the
witnesses or going to them, but this was difficult of enforcement.
Cardinal Adrian, in 1517, declared that ratification before a
commissioner nullified the whole proceedings, yet orders were required
in 1527 and again in 1532 to make inquisitors perform the duty, and
finally the attempt was abandoned and commissioners were everywhere
employed.[1630]
[Sidenote: _RATIFICATION_]
As a rule, no evidence could be used that was not ratified, and I have
met with not a few cases--one as late as 1628--which were suspended and
the accused were discharged because the witnesses were not to be found
when wanted for that purpose.[1631] This arose from the fact that in
strictness ratification was not to be made till immediately before the
so-called "publication of evidence" which was the concluding step of the
prosecution, involving a considerable interval during which the
witnesses might die or disappear.[1632] To avert this, relaxations of
the requirement of ratification were gradually introduced. In 1533, 1543
and 1554 the Suprema inferentially admitted that when witnesses were
absent or dead their testimony could be used if the fact was noted on
the record.[1633] There were authorities who held this to be the case in
Aragon and it was so practised, but elsewhere opinions varied.[1634]
Finally a successful device was invented of two forms of ratification,
one "_ad perpetuam rei memoriam_" and the other "_en juicio plenario_."
They were virtually the same except that in the former the witness was
told that the fiscal would use his evidence in a prosecution to be
brought hereafter, and in the latter that it was for a case on trial. It
became customary always to obtain the ratification when the testimony
was given and then, if a witness was accessible during the trial, the
ratification _en juicio plenario_ was superadded. At what time this
expedient was adopted it would be difficult to say, but it was probably
about the middle of the seventeenth century; the earliest use of it that
I have met occurs in 1650, in Mexico, where it seems already to be
customary.[1635]
While this ostensibly retained for the accused the protection of
ratification, it destroyed whatever value there was in a prolonged
interval between the original deposition and its confirmation. At first
a delay of four days was ordered for the form _ad perpetuam_, which
seems to have been considered sufficient to excite the conscientious
scruples of a possible perjurer.[1636] Even this was subject to the
exigencies of the prosecution. An elaborate series of instructions to
commissioners, about 1770, informs them that there should be four days'
interval if possible, but if a witness is dying or about to absent
himself, ratification may be immediate.[1637] In a case in 1758
ratification is ordered to be taken after waiting three hours; in
others, in 1781 and 1795, after twenty-four hours; in another, in 1783,
it is recorded that twenty-eight hours were allowed to elapse, all of
which shows how purely formal was the whole business.[1638]
[Sidenote: _RATIFICATION_]
In truth it was the baldest formality, for the process habitually
followed deprived ratification of whatever value it might have had
originally. In place of testing the memory and veracity of the witness
by making him repeat his testimony, it was merely read over to him. In
1519 and again in 1546, the Suprema sought to set some limit to this
abuse by ordering that, after preliminary inquiries, the witness should
be made substantially to repeat his testimony and, only after this, was
the record to be read to him, but even this was soon afterwards
abandoned and the Instructions of 1561 merely provide that the witness
is to be told to repeat his testimony; if his memory fails, questions
are to be put leading him to recall it and, if he asks to have the
record read, it is to be read to him. Of course the witness always
availed himself of the privilege and Pablo García says nothing about his
repeating his evidence and directs the reading of the record as a matter
of course.[1639] So perfectly was the whole business a matter of routine
that tribunals kept printed blanks, to be filled in with names and
dates, of the customary attestation that the witness declared it to be
his testimony, that it was properly set forth, that he had no change to
make in it, for it was the truth which he ratified and if necessary he
repeated it, not through hatred but for the discharge of his
conscience.[1640] In fact, although the witness was free to make what
additions, alterations or omissions that he pleased, it was dangerous
for him to diminish the record substantially, for any revocation exposed
him to punishment for false-witness and both depositions were duly set
forth in the publication.[1641]
Bishop Simancas tells us that, when there was suspicion of perjury, it
was customary to examine the witness again, but that this was not done
in other cases, so as not to lead him to commit perjury[1642]--a
tenderness to the witness which had better have been displayed to his
victim; but Simancas wrote before the Instructions of 1561 were issued
and Rojas, whose work was subsequent, is very free-spoken in his
denunciation of the customary practice. Some doctors, he says, argue
that ratification supplies the place of letting the accused know the
names of the witnesses, but this is a hallucination, for experience
shows that this ceremony, with its two religious persons, is of no
value, for it is a trait of humanity to persist in an assertion, whether
true or false, especially where there is risk of perjury, and he urges
that the witness should not be allowed to see his testimony, but should
be examined anew and the two statements be compared so that, from their
variations, his credibility could be determined and lying witnesses be
detected.[1643] Few inquisitors could be expected to perform this
conscientious duty, but one who wrote about 1640 indicates how fruitful
it might prove. He tells us that, in suspicious cases, he had found the
advantage of this plan and had brought to light perjuries which could
have been proved in no other way; when witnesses betrayed their falsity
by varying in important details, he confined them in solitary cells,
where conscience did its work, and they confessed their frauds. He had
also seen many ancient processes in which commissioners and notaries
were convicted, deprived of office and punished in public autos de fe,
which suggests unpleasantly how little reliance was to be placed on the
officials who took down evidence.[1644]
Before the invention of the formula _ad perpetuam_, there was a
hardship inflicted by ratification, in the excessive delays which it
frequently caused. Thus Francisco Alonso, a Portuguese of Zamora,
accused of bigamy, was thrown into the secret prison of Valladolid, July
10, 1627. As the alleged marriages had taken place in Coimbra, the
evidence of their celebration had to be obtained from there, and it was
a year before he had his first audience. When the time came for
ratification, the depositions were sent for that purpose to Coimbra,
September 28, 1628 but, in spite of repeated urgency, they were not
received back until December 18, 1629. Then the case dragged on until
the poor wretch died, June 10, 1630, after three years of incarceration,
when it was perforce suspended.[1645]
* * * * *
[Sidenote: _SUPPRESSION OF WITNESSES' NAMES_]
Of all the devices for encouraging informers and crippling the defence
of the accused, the most effective was the suppression of the names of
the witnesses for the prosecution. This infamy was an inheritance from
the Old Inquisition. In 1298, under the pretext that those who gave
evidence in cases of heresy were liable to vengeance from other
heretics, Boniface VIII provided that, where such danger was threatened,
inquisitors were at liberty to conceal the names of the witnesses, but
he expressly ordered that, in the absence of such danger, the names were
to be published as in other tribunals. That he construed this literally
is evident, for, when the Jews of Rome complained that in their case the
names were habitually concealed, he decided that, as they were few and
powerless, there was no danger and the names must be revealed.[1646]
Permission to commit injustice is apt practically to assume the aspect
of a counsel and then of a command and, in spite of Boniface's
reservation, concealment became the universal practice of the
Inquisition. So it was in Spain. At first it was a discretionary power
for the inquisitor to use in exceptional cases, as when the inquisitor
of Ciudad Real, in the trials of Sancho de Ciudad and his wife, ordered,
January 7, 1484, that the witnesses' names be suppressed, it was an
exception which he explained by the fact that Sancho was regidor of the
city, with powerful friends, and that the witnesses had been
threatened.[1647] Similarly, in the Instructions of November, 1484, the
suppression of witnesses' names was permissive, not mandatory. Allusion
was made to the danger of testifying against heretics; it was asserted
that some witnesses had been murdered or wounded for that cause,
wherefore inquisitors could suppress their names and all circumstances
that would lead to their identification.[1648] All that was needed was
permission, and suppression speedily became the rule.
Of course there was occasional danger and of course there were efforts,
by threats or otherwise, to deter informers and witnesses, but this is
common in all criminal justice, though there was no thought of applying
concealment to the secular courts. It was a privilege exclusively in
favor of the faith. Considering the provocation and the number of the
victims, attacks on witnesses would appear to be singularly few and
wholly inadequate to justify their protection by such means, although
the Inquisition never ceased to proclaim it as an ever-present danger.
In August, 1500, Ferdinand and Isabella asked of Manoel of Portugal the
extradition of Juan de Zafra and his son-in-law for seeking to kill Juan
López of Badajoz, who had testified against Zafra and, not finding him,
had beaten to death his pregnant wife and stabbed his young son and had
escaped to Portugal. They were surrendered, but there seem to have been
no precedents for their prosecution and, in January, 1501, we find
Ferdinand writing to the tribunal of Seville to hold a consultation as
to the procedure in the case. Again, in January 1502, when a witness in
Calatayud was threatened, Ferdinand ordered the inquisitor, if the
report was true, to take such action as comported with the honor of the
Holy Office and the protection of witnesses.[1649] Evidently cases had
been so rare that no method of dealing with them had been formulated.
Still, apprehension was lively and when, in 1507, at Llerena, some
Conversos living near the Inquisition were suspected of watching to see
what witnesses went there, Ferdinand empowered the inquisitors to remove
six of them summarily and replace them with persons beyond
suspicion.[1650]
The suppression of the names of witnesses was necessarily felt as an
extreme hardship by the Conversos, not only as impeding defence but as
stimulating false accusations, which there was no opportunity of
disproving. The Jaen memorial of 1506 does not hesitate to accuse the
officials of the tribunal of thus piling up fictitious charges, and
Lucero's career at Córdova shows how successfully this could be done
when witnesses need not be either named or produced. That efforts should
be made to purchase relief was natural. When, in 1512, Ferdinand was
lacking in funds for the conquest of Navarre, an offer of 600,000 ducats
was made to him, if he would remove the seal of secrecy from the names
of informers and witnesses, but we are told that he preferred his God
and his faith and the preservation of religion. Soon after his death an
attempt was made to tempt the young Charles V with a bribe of 800,000
crowns. His greedy advisers favored the petition, but Ximenes interposed
with a strong remonstrance, reciting Ferdinand's refusal and predicting
the ruin of the Holy Office. Recently he added at Talavera la Reina, a
Judaizing Converso, punished by it, obtained knowledge of the informer,
lay in wait for him and slew him, and such is the infamy inflicted by
the Inquisition and such the hatred engendered by it that, if the names
of the witnesses were published, they would be slain, not only in
solitudes but in the streets and even in the churches; no one would be
able to denounce heretics, save at the peril of his life, so that the
Inquisition would be ruined and God would have no defender. Charles was
convinced and the dazzling bribe was rejected.[1651]
[Sidenote: _SUPPRESSION OF WITNESSES' NAMES_]
Thus the policy of the Inquisition was settled, and so completely was it
embodied in the _estilo_ that it was frequently enforced in cases where
its ostensible reason was inapplicable. When Juan Franco was burnt for
Protestantism at Toledo, in 1570, the only witness against him was
another Frenchman, Jean de Provins, who had confessed to being a
Protestant dogmatizer and as such was undoubtedly burnt. His only
evidence had been some idle talk between them, eight years previously;
he was eminently safe from vengeance and yet his name was carefully
suppressed in the publication of evidence.[1652] For all this, when the
rule was applied to the inquisitors, as it was in the visitations, when
the inspector was interrogating the officials about each other, they
fully recognized its injustice. Thus, in 1574, during an inspection of
the Canary tribunal, when the inquisitor Ortiz de Funes was inculpated,
he complained bitterly that it rendered it impossible for him to verify
or invalidate the testimony of the witnesses--a scruple which he had
never felt when administrating justice in this fashion.[1653]
The fiction was persistently maintained that the usefulness of the
Inquisition depended wholly on the suppression of the names of
witnesses. In the struggle over the evocation to Rome of the case of
Villanueva, the main argument, repeatedly advanced by the Suprema, was
that if appeals to Rome were permitted they would destroy its efficiency
in the suppression of heresy, for no one would denounce heretics or
testify against them, if there was risk that their names would become
known in Rome by the papers being carried thither.[1654]
The idleness of this talk is indicated by the rarity of cases of injury
or threats to witnesses and the moderation with which they were
customarily punished. The most serious case that I have met was that
which followed the condemnation to lifelong reclusion in a monastery of
Luis Pallas, Lord of Cortes, by the tribunal of Valencia, in 1571, for
protecting his Morisco vassals from the Inquisition. Suspicion of having
informed on him fell upon Francisco González and the Pallas family
ordered his murder, for which, in 1577, four of the Pallas retainers
were relaxed to the captain-general for execution. So unusual was the
case that the latter had scruples as to his duty, which Philip II told
him were superfluous and had unnecessarily delayed the punishment.[1655]
Like any other murder, this involved the death-penalty, but as a rule
offences of minor degree were leniently treated. In 1631, Francisca
Muñoz of Segovia wounded Juan Martínez in the face, after asking why he
had put her mother-in-law in the Inquisition, for which she was only
reprimanded in the audience-chamber and banished for two years from
Segovia.[1656] In various other cases of threatening witnesses, the
severest punishment I have met is a hundred lashes, coupled with more or
less exile and this, considering the liberality with which scourging was
administered, implies that the offence was not regarded as requiring
severe repression.[1657] Although thus the penalties were not greatly
deterrent, the cases would appear to be singularly few. In the Toledo
record, from 1648 to 1794, the only one occurred in 1650, when Pedro de
Vega, alcalde of Mombeltran, after trial for a proposition without
conviction, had threatened and insulted the witnesses; for this he was
prosecuted and escaped with a severe reprimand and warning.[1658]
[Sidenote: _CONFRONTATION_]
To appreciate fully the hardship which the suppression of witnesses'
names inflicted on the accused, it must be borne in mind that his only
opportunity of knowing what was the evidence against him was in the
so-called publication. This will be considered more in detail hereafter,
and it suffices here to point out how the effort to mislead the prisoner
as to the identity of his accusers led to the garbling of the evidence
in a manner necessarily adding impediments to the exceedingly limited
opportunities allowed him for defence. Yet we occasionally meet with
cases which suggest that inquisitors were less solicitous about the
safety of their witnesses than to create the belief in safety that would
encourage denunciation. Thus, in the trial of Hans of Antwerp in Toledo
for Lutheranism, in 1561, there was no scruple in setting forth the
evidence in such wise that he could not fail to identify the
witness.[1659] This could scarce be avoided in the very fruitful source
of evidence volunteered by cell-companions. Thus in the Toledo case of
Pedro Flamenco, in 1570, the testimony of two fellow-prisoners as to his
talk and conduct in prison is so set forth as to render their
identification inevitable and, as it included their opinions that he was
a scoundrel and villain, there must have been lively times in that cell
on his return from his audience.[1660] In cases of solicitation, the
attempt to prevent identification was futile, for the confessor could
not fail, from the incidents freely detailed, to recognize the women
whom he had seduced or attempted to seduce.
In secular procedure there was occasional recourse to
"confrontation"--bringing the accused face to face with the accuser or
the witnesses and letting them debate the questions that had puzzled the
judges, but it was regarded as a doubtful expedient, to be resorted to
only when all else had failed.[1661] In 1491, in the case of the Santo
Niño de la Guardia, where the accused were witnesses against each other
and their confessions under torture were irreconcilable, confrontation
was tried with dubious success.[1662] This indicates that under supreme
pressure the veil of secrecy might be withdrawn, and probably the
example was occasionally followed, for Valdés, in the Instructions of
1561, felt it necessary to say that, although confrontation was
practised in other jurisdictions, it was not customary in the
Inquisition for, besides the violation of secrecy, experience had shown
that when tried it was disadvantageous.[1663] This did not wholly put an
end to it for, in 1568, the Suprema sharply rebuked the tribunal of
Barcelona for various irregularities, among which was the frequent
recourse to confrontation.[1664] The latest allusion to the practice
that I have met with in Spain occurs in the Valladolid case, in 1620, of
the priest Juan de Gabana and his accomplice Gerónima González, when the
consulta de fe proposed to confront them, but referred the matter to the
Suprema. Its decision would doubtless have been in the negative, but was
never rendered as Gabana died before it replied.[1665] In the Roman
Inquisition confrontation was sparingly admitted, and only when both
parties were of low estate--never between those of higher station or of
different classes.[1666]
While sedulous care was taken to prevent the accused from identifying
the witnesses, it often was necessary for the witnesses to identify the
accused, to prevent mistakes liable to occur in the arbitrary methods of
the Inquisition. This was so managed as to accomplish both objects. The
somewhat crude plan adopted, in 1528, in the trial at Toledo of Diego de
Uceda, was to conceal the witnesses in the torture chamber, while he
was walked up and down for a quarter of an hour, until they fully
identified him.[1667] Subsequently it was found expedient to furnish the
audience-chamber with a _celosia_--a jalousy or lattice-work, through
which the witness could peer without being discovered. Its utility was
strikingly demonstrated in 1649, in a Valladolid case of alleged bigamy,
when one of the wives, Ana Roman, was brought to inspect the accused
through the lattice and declared that he was not the Juan González whom
she had married, as he differed in age, in size, and in features,
whereupon he was discharged.[1668]
* * * * *
In view of the temptation offered for the gratification of malice by
shielding informers and witnesses, special care was advisable for the
detection and punishment of false-witness. This was the more necessary
as perjury was a popular failing and the sanction of an oath was lightly
esteemed. In 1555 the Córtes of Valladolid asked that, in cases
involving death or mutilation, oaths should be abolished, as they merely
led to perjury and, in 1560, the Córtes of Toledo complained of the
prevalence of false-witness as a matter so customary that there were
provinces in which it was as abundant as any other merchandise, and it
was openly said that for money a man could get as many witnesses as he
desired.[1669]
[Sidenote: _FALSE-WITNESS_]
We have seen how, in 1488, at Toledo, eight Jews were torn with hot
pincers and lapidated for bearing false-witness against good Christians
with the object of rendering the Inquisition odious.[1670] This savage
penalty compares strangely with the leniency shown to exculpatory
perjury in the case of Mossen Pedro de Santangel, Prior of Daroca, who
had sought, by the employment of several false-witnesses, to save his
brother Luis de Santangel, burnt for complicity in the murder of San
Pedro Arbués. He escaped with the simple penance of holding a lighted
candle before the high altar and they were treated as benignantly.[1671]
It was probably to secure greater uniformity that, in the Instructions
of 1498, inquisitors were told to inflict public punishment, according
to law, on those whom they detected in testifying falsely.[1672] The
matter was one which might well excite solicitude for it is evident that
perjury on both sides was rife and the tribunals might reasonably
hesitate to believe any witness.
In 1500 and 1501 we find Ferdinand repeatedly interposing to shield
those whom he favored and whom he declared to be persecuted by
perjurers,[1673] and the career of Lucero shows how readily and
unscrupulously they could be employed in the secrecy of the tribunals.
The Jaen memorial of 1506 speaks of a certain Diego de Algecira, whom
Lucero kept for five years to testify against all whom he desired to
destroy and whom the inquisitors of Jaen borrowed for the same purpose,
besides other adepts of the kind whom they employed and rewarded. When a
raid was made on Arjona, the notary Barzena brought with him Luis de
Vilches who, by changing his name and garments, testified repeatedly in
different characters.[1674] One of the petitions of the Córtes of
Monzon, in 1512, bears eloquent testimony to the same state of affairs
in Catalonia, for it asks that, when a man was burnt through fraudulent
testimony, the inquisitors should not prevent the king from punishing
the false witnesses.[1675] Such a system necessarily produced
professional perjurers who did for gain what others might do through
malice. That the accused should resort to the same means was inevitable.
In Segovia, in 1504, there appears to have been a perfect carnival of
false-witness. On July 10th and 11th there were punished two accusing
perjurers and twenty-two who had sworn falsely on the side of the
defence; there were others who had died before sentence and still more
who had confessed and were awaiting punishment, which consisted mostly
in scourging and exile.[1676]
Thus far there seems to have been uncertainty as to jurisdiction. In the
Catalan efforts for relief, the bull _Pastoralis officii_ was procured
from Leo X, August 1, 1576, which rendered perjury committed in the
Inquisition justiciable by the inquisitors and ecclesiastical judges in
conjunction but not severally.[1677] The result was naturally
discouraging and papal intervention was again sought. In a brief of
December 14, 1518, addressed to Cardinal Adrian, Leo deplored the
condition under which, through false-witness, the guilty escaped and
the innocent suffered, but the only remedy provided was in conferring
full jurisdiction on inquisitors with faculties to punish, even by
relaxation to the secular arm, without incurring "irregularity."[1678]
The crime was thus placed wholly in the hands of the Inquisition, which
was no more likely than before to exert itself in checking perjured
accusations. This proved to be the case and, in 1523, the Córtes of
Valladolid asked that it should inflict on false witnesses the penalties
provided by the Laws of Toro in 1502, which decreed the _talio_ for
perjury committed in criminal cases.[1679] Charles contented himself
with replying that he had asked the pope to appoint as
inquisitor-general Archbishop Manrique, whom he would charge to see
justice done. That this remedy proved futile may be gathered from the
memorial of Granada, in 1526, in which one of the arguments against the
suppression of the names of witnesses is the number of souls condemned
to hell for perjury, through the facilities offered by the secret system
tempting them to destroy their enemies or to swear falsely through
bribery, a thing which happens every day.[1680]
[Sidenote: _FALSE-WITNESS_]
In fact the procedure of the Inquisition was such as to encourage the
crime and to render its detection exceedingly difficult, at least when
committed for the benefit of the prosecution. When every precaution was
taken to prevent the accused from identifying his accusers, it was
expecting too much of the average inquisitor that he should depart from
the routine work of his office to discover, without assistance from
those interested, whether the witnesses, mechanically examined by him or
his commissioner, were telling the truth or not. Had there been any zeal
in this direction, the Suprema would not have felt obliged, in 1531, to
instruct the tribunals that perjurers should be punished as a warning to
others, giving due consideration as to whether they were actuated by
malice or ignorance. Possibly this may have stimulated some tribunal to
inconvenient activity for, in 1536, it saw occasion to moderate zeal by
ordering that the rigor of the brief of Leo X should not be observed,
unless some one had been condemned through false evidence, and even in
such case the Suprema was to be consulted before action.[1681] The
infallibility of the Inquisition was too important to be rashly
compromised.
Moderation thus remained the rule. Simancas tells us that, under Leo's
brief, perjurers should be burnt, with confiscation, but this should
only be done when the accused has suffered severely; in most cases the
injury is but slight, for which such penalties suffice as appearing in
an auto with a defamatory mitre and scourging, galleys or exile; even
when burnt there are no disabilities on descendants; the _talio_ has
become virtually obsolete and should be used only in extreme cases;
subornation of perjury is even worse than false-witness and incurs the
same punishment.[1682]
Theoretically this reflects the ordinary practice. I have met with but
one case in which a perjurer was burnt and this was in Sardinia, in
1562, but about 1640 an experienced inquisitor states that he has seen
records of such cases in Logroño and it is possible that they occurred
occasionally.[1683] So also we sometimes find scourging and the galleys
in aggravated cases, while priests were let off with fines and exile.
Still, the tendency was to extreme moderation. In Valladolid, Juan Gomez
Rubio suffered imprisonment for nearly two years, from 1636 to 1638, on
a charge of blasphemous propositions, when his case was suspended and he
was dismissed with a reprimand and the corresponding infamy. His accuser
was Pedro de la Cruz who had testified twice against him under
fictitious names and had suborned others to appear against him, for
which he escaped with parading in _vergüenza_ and exile.[1684]
A still more significant case was that of Jean de la Barre, a Fleming,
long settled in Madrid, where he was deputy alcalde of the royal palace
of the Pardo. He was a man of somewhat excessive devoutness. He had a
mass celebrated daily in the royal chapel by a chaplain of his own,
until the regular chaplain, a Dr. Robles, who was also commissioner of
the Inquisition, forbade it and forced him to the church of the
Trinitarians. He endeavored to form a cofradia for celebrating masses,
but Robles demanded to be the head of it and to handle the funds without
accountability, when la Barre abandoned the project, although he had
spent five hundred ducats on a silver lamp for the chapel. They
naturally quarrelled and, when Robles sought a reconciliation, his
overtures were rejected. He revenged himself, in January, 1656, by
denouncing la Barre for various heretical speeches, for neglecting mass
and confession and, what was perhaps more serious than all, for saying
that inquisitors were robbers who seized rich men to strip them of their
property. La Barre had discharged several workmen for theft and
idleness, and they were readily induced to appear as corroborating
witnesses. He easily identified his accusers and in defence presented
twenty-five witnesses in his favor, among them five Trinitarian frailes
and some officials of high rank, who testified emphatically to his
unusual devotion; his rosary was never out of his hands, he heard mass
daily and spent three reales a day for it. They also told of the mortal
enmity and threats of Robles and the discharged workmen and showed the
reasons. There could be no clearer case of a foul conspiracy to ruin an
innocent man, but he was sentenced to reprimand and exile and was
threatened with a hundred lashes if he dared to speak of his treatment.
That his case was suspended and he was not required to abjure even _de
levi_ show that there was no suspicion of heresy proved and that the
sentence, with its consequences of infamy on him and his posterity, was
a mere wanton exercise of arbitrary power, while the false witnesses
were not troubled, for there are no marginal notes on the record showing
that extracts were taken from the evidence for their prosecution.[1685]
[Sidenote: _FALSE-WITNESS_]
It was still admitted that the legal punishment was the _talio_, but
that it should only be inflicted when the perjurer had encompassed the
conviction of his victim, thus weighing the crime, not by its
criminality but by its result.[1686] How lightly, indeed, false swearing
was regarded _per se_ is indicated by a curious case occurring in
Valladolid, in 1630. A student named Luis Sánchez denounced certain
Portuguese of Zamora of endeavoring to convert him. The receiver and an
alguazil were sent thither, but could find no trace of the accused nor
even of the street in which they were described as residing. Sánchez was
sent for, was made to ratify his deposition, and was then accused of the
fraud and mockery of the tribunal. He admitted it and explained that he
had been thrown into gaol in a suit over a mare and had devised this
expedient for getting out, in hopes of escaping to the asylum of a
church. His trial went through all the regular stages; the vote of the
consulta de fe was sent to the Suprema, which contented itself with
sentencing him to a reprimand, six years' exile from Valladolid and a
fine of two hundred ducats, with the charitable alternative that, if he
was too poor, he should swear to pay it if he should ever be able.[1687]
While thus the Inquisition was benignantly disposed towards perjury, the
secular law did not relax its severity. In Aragon the Córtes of Monzon,
in 1564, decreed the _talio_ in criminal cases for accusing false
witnesses and for those produced by the defence, in addition to the
penalties prescribed by the fueros--scourging and perpetual
banishment--besides making good all expenses incurred by the other
party. In Castile, a pragmática of Philip II, in 1566, confirmed by
Philip III, in 1603, when the case was not capital, substituted, for the
talio, scourging and the galleys for life.[1688] The tenderness of the
Inquisition for such offences was not derived from any softening of the
law of the land.
With the development of limpieza there sprang up a new and fruitful
source of perjury. Those who were endeavoring to prove immaculate
descent had no scruple in filling any genealogical gaps by purchasing
witnesses to supply deficiencies, and those who, through envy or malice,
desired the defeat of an aspirant, found ready means of putting forward
witnesses to swear as to public repute, or that they had seen sanbenitos
of ancestors. As early as 1560, and again in 1574, the Suprema found it
necessary to issue instructions to meet these cases.[1689] Bigamy trials
also brought to light a contingent of perjurers, mostly employed by the
guilty party desiring remarriage, to swear that he or she was
single.[1690]
Notwithstanding these accessions and of the fact that in most cases
there were several accomplices, the number in the records is
surprisingly few. Partly this is explicable by the extreme difficulty of
detection, owing to the suppression of witnesses' names and the
impediments thrown in the way of the defence, and partly by the
indifference of the tribunals, which do not seem to have regarded it as
their duty to prosecute perjurers--at least those for the prosecution.
When, in 1640, Agustin Gómez de la Peña, cura of Perdigon, was tried in
Valladolid for carrying unconsecrated forms in the procession of Corpus
Christi, and the case was suspended on the ground that the testimony was
perjured, the Suprema, in approving the vote, felt it necessary to order
that the fiscal should prosecute the accuser and his witnesses, showing
that this was by no means a matter of course.[1691] Be this as it may,
in Toledo a record, extending from 1575 to 1610, and embracing 1172
trials, only contains eight cases of false-witness, and a further record
of the same tribunal, from 1648 to 1794, has not a single one in its
aggregate of 1205 cases.[1692] In Valladolid, out of 667 trials
occurring between 1622 and 1662, there are but seven cases of false
witness.[1693] In Madrid, the records, from 1703 to 1751, present but a
single trial for false-witness, and this arose out of a marriage
case.[1694]
Unfortunately these slender returns do not prove that perjury was
uncommon. Philip V, among his other attempted reforms, in a decree of
July 26, 1705, called attention to the facility afforded to the
execrable wickedness of false denunciations and false-witness, imposing
on many innocent persons the difficult task of protecting honor,
property and life, to the perversion and scandal of justice. These
enormous and pernicious abuses he attributed to the non-enforcement of
the penalties prescribed by the laws, because the moderate punishments,
so rarely inflicted, encouraged rather than repressed the audacity of
the evil-minded. He therefore ordered the Suprema to see that the legal
penalties were rigorously imposed, and the Suprema obediently
transmitted this to the tribunals with instructions to conform to it
strictly.[1695]
[Sidenote: _FALSE-WITNESS_]
This seems to have had some effect, but not much. In a collection of all
the autos held in Spain, from 1721 to 1727, out of 962 sentences, there
are but seventeen for false-witness and these represent only about half
that number of cases, for in one there were five accomplices and, in two
others, three each. The punishments remain as of old, scourging, galleys
and exile, and there is no difference made between offenders in
marriage-cases and those involving the death-penalty by accusations of
Judaism. One of these latter excited considerable interest at the time.
Three penitents from Cadiz, undergoing punishments for Judaism, accused
fourteen persons of practising Jewish rites, but they had not studied
their parts well, their stories did not accord and, on being arrested,
they confessed. Their intended victims were honored with a special auto
de fe in Seville, November 30, 1722, to which they were conveyed by
familiars in the handsomest coaches of the city; in the church of San
Pablo they were seated near to the inquisitors, the evidence was
publicly read, their innocence was proclaimed, and they were carried
home in the coaches. This was followed, June 6, 1723, by the auto in
which the perjurers were sentenced to two hundred lashes apiece and the
two of them, who were men, to seven years in the galleys. Somewhat
similar was a case in Santiago, in 1724, when five culprits were
concerned, of whom the leader, Pedro García Rodríguez, was punished with
two hundred lashes and five years of galleys, while his accomplices had
the lashes and eight years of exile.[1696]
The moderation shown towards perjury increased in the latest period. In
1817, the deacon Manuel González Ribadeneyra was prosecuted for it by
the tribunal of Santiago but, when the _sumaria_ was submitted to the
Suprema, it sent a commission to the Benedictine Abbot of Monforte to
warn the offender that in future he must conform his depositions to the
truth, as becomes a minister in holy Orders, for otherwise he would not
be treated with the benignity which now imposed on him only eight days
of spiritual exercises in the monastery. Apparently even this was
expected to excite resistance, for a further provision threatened him,
in case of refusal, with prosecution according to law.[1697]
* * * * *
Theoretically there was laudable care as to the sufficiency of evidence
for condemnation. The ancient Glossator on the Decretum says that two
witnesses are sufficient to convict a pope, but the authorities, both of
the Old and the New Inquisition, hold that, although this is good in
ordinary law, yet, in a crime entailing such consequences as heresy,
especially as the defence is crippled by the suppression of the
witnesses' names, there should be much hesitation in convicting a man on
the evidence of only two witnesses.[1698] Still, two were reckoned
sufficient, unless they were accomplices, when three were required and
these supported by other indications.[1699] Yet as one witness was
sufficient to justify torture, these scruples did not save the accused
but only exposed him to the risk of convicting himself if his endurance
did not exhaust the resources of the torture-chamber. In fact, in the
secrecy of the tribunal, the discretion of the judges was the only rule,
and they could construe the laws of evidence as they saw fit, as when a
visitation of Barcelona led the Suprema, in 1568, to rebuke the
inquisitors because, on the evidence of a single witness they prosecuted
Guillen Contada, tortured him twice and, without convicting him,
abandoned him to the secular arm for burning; nor was he the only victim
of the kind, for they did the same with Juan del Payen.[1700] How much
of this occurred elsewhere the world will never know.
The theory that it required two witnesses to prove a fact was developed
into the rule that they must be _contestes_--that is, witnesses to the
same individual act of heresy--before it could be accepted as proved. It
is often found urged in the arguments for the defence that the witnesses
are _singulares_ and not _contestes_, but in practice such a defence was
usually disregarded or, at most, only led to the unfailing resource of
torture. Thus, in a case referred to the Suprema for decision, the
tribunal reported that there were many witnesses to prove that the
accused was a Jewess, but they were not contestes, for none of them
cited the others, but each one named somebody else who could attest the
fact: they deposed to the same time and place, but varied as to the
years. In the consulta de fe some members voted for relaxation and
others for torture; the matter was sent up to the Suprema and, whatever
its decision may have been, the accused suffered.[1701]
[Sidenote: _CHARACTER OF EVIDENCE_]
Even in the seventeenth century, Escobar affirms the rule absolutely; if
one witness swears that he heard Pedro say in the market-place that God
is not a Trinity and another that he heard him say so in a house, it
does not convict him for neither fact is legally proved.[1702] Such a
definition, however, threw too many obstacles in the way of the
prosecution not to be eluded and, in fact, there were classes of cases,
such as solicitation in the confessional, in which it was impossible to
have more than one witness to each individual act. So, in prosecutions
for Judaism, in which the evidence frequently covered a long series of
years and turned on infinitesimal incidents in daily life, concurrent
witnesses to any single one could scarce be had. Yet the claims of the
Inquisition to extreme benignity required this to be understood as
Escobar expresses it, while in practice it was disregarded. It was
discovered that witnesses could be _contestes in genere_ when they
testified to different acts of heresy, and thus make full proof. It is
true that Rojas, after citing authorities on both sides, concludes that
the rule requiring two concurrent witnesses to a fact must be observed,
but one of his authorities asserts that the contrary is the rule in
practice, and the Suprema affirmed this, July 27, 1590, by ordering
that, where formal heresy is concerned, depositions as to different
ceremonies and points of faith are to be held as _contestes_.[1703] This
was inevitable and it was only sanctioning what had long been the custom
in the tribunals.
* * * * *
There was much laxity in the character of the evidence accepted. In the
secular courts, hearsay testimony was not admitted as proof unless a
witness had heard a matter from so many persons as to constitute public
fame, in which case it was allowed a certain weight.[1704] In the
Inquisition the same rule was nominally followed, but in practice
hearsay evidence was welcomed and was utilized. All the gossip and
tattle of a village was eagerly accepted and recorded, to be reproduced
in the publication of evidence furnished to the accused, and it
unquestionably had its weight when laid before the consulta de fe which
voted the sentence. Witnesses were often brought in to swear that they
had heard the direct witness assert that the accused was guilty of the
heresy charged, and this was regarded as cumulative evidence. Sometimes
it happened that these secondary witnesses made a much stronger
statement than their principal and, in such case, the fiscal was
directed to insert both in the accusation, with the reserve that the
direct testimony would be considered when sentencing, the object being
to terrify and mislead the prisoner.[1705] The kind of evidence that was
gravely accepted and recorded is seen in the trial of the Licentiate
Luis de Guevara, who was reconciled in the Toledo auto de fe of 1594. In
an abstract of the more important testimony it is stated that the fourth
witness had heard a man say that a certain Morisca was a great bitch,
for she coupled with other dogs, meaning the said Luis de Guevara.[1706]
Such hearsay gossip was laboriously accumulated to an incredible degree,
and it is easy to appreciate its effect on the defendant, when cunningly
mingled with the direct evidence in the publication of witnesses, which
he was required to answer on the spot, item by item, tending to confuse
him and leading him to entrap himself. In the trial at Valladolid, in
1641, of Sebastian de los Rios, cura of Tombrio, there were fourteen
witnesses _de visu_, or direct, and twenty _de oidas_, or hearsay, and,
in 1659, Guiomar Antunes was thrown into the secret prison, with
sequestration on the testimony of one witness _de visu_ and eleven _de
oidas_. Latitudinarianism as to evidence could scarce go further than in
the case of Fray Alonso Capera, tried in 1643, as a _curandero_ for
treating disease by conjurations, against whom there testified twenty
witnesses, "men and women, minors and adults, some direct, others
hearsay and others on suspicion."[1707] When it is remembered that no
witness, however infamous or unfit, was rejected, we can conceive the
quality of the evidence on which depended the fate of the accused.
* * * * *
[Sidenote: _CHARACTER OF EVIDENCE_]
While the Inquisition claimed jurisdiction over all heresy, internal and
mental, as well as external and formal, it could only prosecute when
heresy was manifested or inferable by external acts or words, and these
had to be investigated with the utmost minuteness. The land was filled
with those whose external conformity might be but the cloak for secret
dissidence. The New Christian was regarded with suspicion, as a possible
or even a probable apostate, whose baptism only served to render him
guilty and to subject him to the jurisdiction of the Inquisition. He
might be regular in religious observance, be liberal to church and
friar, be a constant purchaser of the Cruzada indulgences, and yet be
secretly a believer in the Law of Moses or of Mahomet. It was the
business of the Inquisition to detect and punish these apostates; it was
rarely that they betrayed their infidelity by imprudent avowals or hasty
speeches, except to so-called accomplices or to cell-companions, and, in
the absence of such witnesses, for the most part, the only proof against
them arose from their adherence, in the privacy of their homes, to the
rites and usages which, through long succession of generations, had
become a second nature. It was on this, then, that prosecutions largely
depended, and the simplest acts that savored of Judaism or of Islam were
regarded as incontrovertible proofs of apostasy, requiring
reconciliation to the Church, with all that it implied and, if
subsequently persisted in, proving relapse with its penalty of the
stake.
Familiarity with the practices of the condemned religions was therefore
part of the necessary training of the inquisitor, and long descriptive
catalogues were compiled for their information. In order also that the
people might be duly instructed, and be on the watch to denounce their
neighbors, these were incorporated in the Edicts of Faith annually
published in all the churches. Much of the evidence recorded in the
trials and, for the most part, accepted as conclusive, consists of acts
in themselves perfectly innocent and appearing to us wholly indifferent
and unworthy of consideration. Observing the Ramadan or the fast of
Queen Esther of course would admit of no extenuation, but there were a
host of trivial observances which seem to the modern mind altogether
inadequate to the prominence accorded to them in the trials. This
extreme minuteness with which such observances were held to prove
apostasy was an innovation. Of old, the Church recognized the
impossibility of changing abruptly customs so imbedded in the routine of
daily life, and, while such practices were to be repressed, they were
not treated as heresy. The great council of Lateran, in 1215, alludes to
their frequency, but contents itself with ordering prelates to force
converts to abandon all remnants of their old faith.[1708] It was
otherwise in Spain and the evidence on which prosecutions were based
and punishments inflicted would often appear to us to be of the
flimsiest character.
Changing the body-linen or table-linen on Saturday, lighting candles on
Friday and similar observances were proofs of a most damaging character;
even eating _amin_--a broth liked by Jews--is enumerated among the
offences entailing appearance in an auto de fe.[1709] When Brianda de
Bardaxí was on trial at Saragossa, in 1491, she admitted that, when a
child, she had eaten a few mouthfuls of Passover bread given to her by a
playmate, and this was gravely detailed in her sentence as one of the
proofs of "vehement suspicion" for which she was severely
punished.[1710] Circumcision, in the later period, was an evidence
almost decisive and, with male defendants, an inspection by the surgeon
of the tribunal was customary but, in the earlier time, before the
expulsion and forced conversion of the Jews, it was merely an indication
that a man was a New and not an Old Christian, yet in an auto de fe at
Saragossa, in 1486, Pedro and Luis de Almazan, on this evidence alone,
were sentenced to perform penance with lighted candles and to ten years
of exile.[1711] Among the Moriscos, staining the nails with henna was
held to justify suspicion; refusing to eat the flesh of animals that had
died of natural causes was highly damaging; a propensity to cleanliness
by washing one's self was an indication of apostasy and, in the trial of
Mari Gómez at Toledo, in 1550, as a relapsed impenitent, one of the
charges was that, in her former trial, she had not confessed that, some
fifteen years before, a kid had been killed in her house by cutting its
throat.[1712]
[Sidenote: _CHARACTER OF EVIDENCE_]
How slender was the evidence requisite for prosecution is manifested in
the trials of a whole family, in Valladolid, from 1622 to 1624. When Dr.
Jorje Enrriquez, physician to the Duke of Alva, died, the body was
soiled, requiring washing, followed by a clean shirt. A number of
witnesses thereupon deposed that it was prepared for sepulture according
to Jewish rites. The consulta de fe on the arrest was not unanimous, and
it was referred to the Suprema, which ordered the arrest of all
concerned, with sequestration. The whole family, widow, children and
servants, with some cousins, were thrown into the secret prison and the
eldest son, a youth of twenty, died from the effects of torture. After
nearly two years of this, the evidence was so weak that the consulta de
fe voted _in discordia_ and the Suprema ordered the prisoners to be
acquitted. So, in 1625, Manuel de Azevedo, a shoemaker of Salamanca, was
denounced because he had removed the lump of fat from a leg of mutton
which he took to a baker to be roasted. The consulta voted to dismiss
the case but the fiscal appealed to the Suprema, which ordered arrest
with sequestration. The trial went on through all the forms and when at
length Azevedo learned from the accusation what was the charge, he said
that he was ignorant of this being a Jewish custom, but had been told
that a leg of mutton roasted better when the fat was cut out. When the
defence was reached he proved that he was an Old Christian on all sides;
he was not acquitted but the case was suspended. Had he been a New
Christian he would have been tortured and penanced, whether he overcame
the torture or not. In another case, in 1646, one of the charges was
that the accused, in slicing bread, held the knife with the edge turned
away and not towards his breast, as was customary with Christians.
Trivial as all this may seem, one occasionally meets a case showing that
the Inquisition did not always spend its energies in vain in following
up the slenderest evidence, however great were the sufferings frequently
inflicted on the innocent. In several Jewish cases in Valladolid, in
1642, the chief evidence was that the meat before cooking was soaked in
water to remove the blood and grease. This led to the discovery and
punishment as Judaizers of a group of some fifteen or twenty in
Benavente, who appeared in the auto de fe of 1644. As soon as one was
brought to confess, he implicated others, and the net was spread which
captured them all. The fact, however, that torture was freely used casts
an unpleasant doubt over the justice of the result.[1713]
Suspicion might be aroused by negative as well as by positive
indications and, in the Spain of the Inquisition, it behooved every man
to be scrupulously exact in the performance of what were regarded as
evidences of orthodoxy, as well as in the avoidance of what created
doubt, for everywhere around him were zealous spies, eager to serve the
faith. In 1635, Manuel Mardes, travelling with his wife and two other
women, passed two men laboring in a field without saluting them. One of
them asked him why he did not say "Praised be Jesus Christ" or "Praised
be the most Blessed Sacrament," to which he imprudently replied that
God was not known in his own land. The laborers promptly denounced him
to the nearest commissioner of the Inquisition, who arrested him. The
calificadores voted that this was manifest Judaism and he was thrown
into the secret prison of Valladolid, with sequestration. Then there
came additional evidence from a cell-companion that he washed his hands
on rising and before eating. He denied all intention until he was
smartly tortured, when he confessed all that was desired.[1714]
Naturally this negative evidence was habitually sought by the tribunals.
In the trials for Judaism and Mahometanism, the accused was always
interrogated as to his training in Christian formulas. He was asked to
recite the credo and the customary prayers of the Paternoster, the Ave
Maria and the Salve Regina, and was made to cross himself, to see
whether or not he did it in a manner to show that it was habitual. In
Spain there were two forms of this--_santiguarse_ and _signarse_--the
former consisting in making the sign of the cross, with the thumb and
forefinger joined, passing them from forehead to cheek and from the left
to the right shoulder; the latter in touching the forehead, mouth and
chest with the thumb and forefinger of the right hand, or with the thumb
alone. This was often a crucial test. Of Mari Gómez it is recorded, July
15, 1550, "She repeated the Ave Maria; she was imperfect in the
Paternoster and the creed and said she did not know the Salve Regina.
She performed the signo ill but the santiguada well."[1715]
* * * * *
It has seemed worth while to enter thus minutely into the details of
inquisitorial treatment of evidence, as it was so largely a determining
factor in the fate of the accused. From this examination it is
impossible to resist the conclusion that the system of procedure was
framed rather to secure conviction than to ascertain the truth. Guilt
was presumed in the fact of arrest and the business of the tribunal was
to prove it.