TORTURE
To the modern mind the judicial use of torture, as a means of
ascertaining truth, is so repellant and illogical that we are apt to
forget that it has, from the most ancient times, been practised by
nearly all civilized nations. With us the device of the jury has
relieved the judge of the responsibility resting upon him in other
systems of jurisprudence. That responsibility had to be met; a decision
had to be reached, even in the most doubtful cases and, where evidence
was defective and conflicting, the use of torture as an expedient to
obtain a confession, or, by its endurance, to indicate innocence, has
seemed, until modern times, after the disuse of compurgation and the
judgements of God, to be the only means of relieving the judicial
conscience. It was admitted to be dangerous and fallacious, to be
employed only with circumspection, but there was nothing to take its
place.[1]
That it should be used by the Inquisition was a matter of course, for
the crime of heresy was often one peculiarly difficult to prove;
confession was sought in all cases and, from the middle of the
thirteenth century, the habitual employment of torture by the Holy
Office had been the most efficient factor in spreading its use
throughout Christendom, at the expense of the obsolescent Barbarian
customs. It is true that Spain was loath to admit the innovation. In
Castile, which rejected the Inquisition, Alfonso X, notwithstanding his
admiration of the Roman law, required that confession must be voluntary
and insisted that, if obtained by torture, it must subsequently be
freely ratified, without threats or pressure.[2] In the kingdoms of
Aragon, which admitted the Inquisition, torture remained illegal, and it
was only by the positive commands of Clement V that it was employed, in
1311, on the Templars.[3] By the time that the Spanish Inquisition was
organized, however, torture in Castile was in daily use by the criminal
courts, and there could be no question as to the propriety of its
employment by the Holy Office. In Aragon, Peña tells us that, although
it was forbidden in secular jurisprudence, it was freely permitted in
matters of faith. Yet its use was jealously watched, for when the aid of
torture was sought in the case of a prisoner accused of the murder of a
familiar, the Córtes of 1646 complained of it as an unprecedented
innovation, which was only prevented by the active intervention of the
diputados and viceroy.[4] Valencia had been less rigid in excluding
torture from its courts, but so limited its use that, in 1684, the
tribunal reported that, in cases of unnatural crime (of which it had
cognizance, subject to the condition of trial by secular process), it no
longer used torture, because the methods permitted by the fueros were so
light that the accused felt no fear of them, and they were useless in
extracting confession.[5]
[Sidenote: _MORE MODERATE THAN IN ROME_]
We shall see that occasionally tribunals abused the use of torture, but
the popular impression that the inquisitorial torture-chamber was the
scene of exceptional refinement in cruelty, of specially ingenious modes
of inflicting agony, and of peculiar persistence in extorting
confessions, is an error due to sensational writers who have exploited
credulity. The system was evil in conception and in execution, but the
Spanish Inquisition, at least, was not responsible for its introduction
and, as a rule, was less cruel than the secular courts in its
application, and confined itself more strictly to a few well-known
methods. In fact, we may reasonably assume that its use of torture was
less frequent, for its scientific system of breaking down resistance, in
its long-drawn procedure, was more effective than the ruder and speedier
practice of the secular courts where, as we are told by Archbishop
Pedro de Castro of Granada, it was notorious that no one confessed
except when overcome by torture.[6]
In this respect, the comparison between the Spanish and the Roman
Inquisition is also eminently in favor of the former. We shall have
occasion presently to see the limitations which it placed on the use of
torture, while in Rome it was the rule that all who confessed or were
convicted in matters of faith were tortured for the further discovery of
the truth and the revelation of accomplices. In addition to this there
were many classes of cases in which torture was employed by Rome to
extort confession and in which it was forbidden in Spain--those
involving mere presumption of heresy, such as solicitation, sorcery,
blasphemy etc. Moreover in Rome the _in arbitrio judicum_ applied not
only to the kind and duration of the torture but also to its
repetition.[7] Spanish writers on practice, therefore, were justified in
claiming for their own tribunals a sparing use of torture unknown in
Italy, while, as regards its severity, the frequency with which in the
trials we find that the accused overcame the torture would indicate that
habitually it was not carried to extremity, as it so frequently was in
the secular courts. No torture-chamber in the Inquisition possessed the
resources of the corregidor who labored for three hours, in 1612, to
obtain from Diego Duke of Estrada confession of a homicide--the water
torture, the mancuerda, the potro, hot irons for the feet, hot bricks
for the stomach and buttocks, garrotillos known as bone-breakers, the
trampa to tear the legs and the bostezo to distend the mouth--and all
this was an every-day matter of criminal justice.[8]
The indirect torture of especially harsh imprisonment was not unknown to
the Inquisition, and was occasionally employed for the purpose of
breaking down obstinacy. It was not, as in the medieval Inquisition,
prescribed as an ordinary resource, but it was at the discretion of the
tribunal and could at any time be brought into play, as in the case of a
pertinacious heretic, in 1512, who was consigned to the most noisome
part of the prison, and afflicted in various ways, in the hope of
enlightening his understanding.[9] In the later period of leisurely
action, protracted imprisonment was frequently resorted to, in the hope
of inducing repentance and conversion, when wearing anxiety and despair
weakened the will as effectually as the sharper agonies of the pulley
and rack. There was also the ingenious device, frequently effective, by
which the fiscal concluded his formal accusation with a demand that, if
necessary, the accused should be tortured until he confessed. This was
unknown in the earlier period, but the Instructions of 1561 recommend
it, giving as a reason its good results, and also that torture requires
a demand from the prosecutor and a notification to the defendant, who is
unprepared for it at this stage of the trial.[10] After this it became
the universal custom in all cases admitting of torture, and the profound
impression produced on the unfortunate prisoner can be readily
conceived.
[Sidenote: _PRELIMINARIES_]
Torture itself, however, was regarded as too serious to be left to the
arbitrary temper of a baffled or angry inquisitor, and was preceded by
formalities designed to prevent its abuse. It was the last resort when
the result of a trial left doubts to be satisfied. After the prosecution
and defence had closed, and the consulta de fe had assembled to consider
the sentence, if the evidence was too weak for condemnation while the
innocence of the accused was not clear, it could adopt a vote to torture
and postpone the decision to await the outcome. Even in the ferocity of
the early period this deliberateness was frequently observed, although
in the reckless haste of procedure it was often omitted. Thus, in the
case of Diego García, a priest accused of having said twenty years
before, when a boy, that the sacrament was bread, the consulta held two
meetings, January 18 and 19, 1490, and finally voted torture. There was
no haste however and it was not until February 11th that García was
exposed to the very moderate water-torture of about a quart of water. No
confession was obtained and he was untied, with the protest that he had
not been sufficiently tortured, but it was not repeated and, on February
26th, he was acquitted and restored to his fame and honor, though, with
the curiously perverse inquisitorial logic, he was made to abjure _de
vehementi_ and forbidden to celebrate mass for six months.[11] The vote
of the consulta however was not universal and, in 1518, the Suprema
ordered it to be always observed, but a clause in the Instructions of
1561, reminding inquisitors that they must not inflict torture until
after hearing the defence shows how difficult it was to restrain their
arbitrary action.[12] Even in the early eighteenth century, in reviewing
a summary of cases of Valencia, from 1705 to 1726, the Suprema rebuked
the tribunal for torturing Sebastian Antonio Rodríguez without previous
consultation, but at this period the consulta de fe was becoming
obsolete and everything was centering in the Suprema.[13]
The vote of the consulta was still only preliminary. After it, the
accused was brought into the audience-chamber, where all the inquisitors
and the episcopal Ordinary were required to be present. He was notified
of the decision of the consulta; if he was a _diminuto_, the points in
which his confession had failed to satisfy the evidence were pointed
out; if a _negativo_, no explanations were necessary; if it was on
intention or in _caput alienum_ he was made to understand it. He was
adjured, in the name of God and the Blessed Virgin, to confess fully,
without false evidence as to himself or others and, if this failed to
move him, a formal sentence of torture was signed by all the judges and
read to him. It recited that, in view of the suspicions arising against
him from the evidence, they condemned him to be tortured for such length
of time as they should see fit, in order that he might tell the truth of
what had been testified against him, protesting that, if in the torture
he should die or suffer effusion of blood or mutilation, it should not
be attributed to them, but to him for not telling the truth. If the
torture was to discover accomplices, care was taken to make no allusion
to him and to give him no chance of clearing himself, for he was
assumed to be already convicted.[14]
Even this sentence was not necessarily a finality for, if the accused
offered a new defence, it had to be considered and acted upon before
proceeding further.[15] Moreover he had theoretically a right to appeal
to the inquisitor-general from this, as from all other interlocutory
sentences. This right varied at different times. A ruling by the
Suprema, in 1538, appears to indicate that it was granted as a matter of
right, but the Instructions of 1561 tell inquisitors that, if they feel
scruple, they should grant it, but if satisfied that the sentence is
justified they should refuse the appeal as frivolous and dilatory.[16]
Still the right to ask it was so fully recognized that, if the accused
was not twenty-five years of age and thus a minor, his _curador_ or
guardian was required to be present, in order to interject an appeal if
he saw fit, and I have met with an instance of this in the case of
Angela Pérez, a Morisco slave, before the Toledo tribunal in 1575, where
it was as usual unsuccessful, for the Suprema confirmed the
sentence.[17] Tribunals seem not infrequently to have allowed appeals,
but, with the growing centralization in the Suprema, they became
superfluous and a formula, drawn up in 1690, directs that no attention
be paid to them.[18]
[Sidenote: _CONDITIONS_]
When the indications of guilt were too slender to justify torture, the
consulta de fe sometimes voted to threaten torture.[19] Then the
sentence was formally drawn up and read to the accused, he was taken to
the torture-chamber, stripped and perhaps tied on the _potro_ or
_escalera_, without proceeding further. A curious case of this was that
of Leonor Pérez who, at the age of seventy, was sentenced, May 3, 1634,
in Valladolid, to be placed _in conspectu tormentorum_. When stripped,
on May 10th, the executioner reported marks of previous torture; the
proceedings were suspended and, on May 13th, she admitted that, twenty
years before, she had been tortured in Coimbra. On June 14th the
sentence was again executed, but, before being stripped, she confessed
to some Jewish beliefs and then fainted. A postponement was necessary
and two days later she revoked her confession. The case dragged on and
it was not until August 1, 1637 that she was condemned to abjure _de
vehementi_, to six years of exile, a fine of two hundred ducats, and to
be paraded in _vergüenza_, but we still hear of her as in prison, early
in 1639.[20] It required strong nerves to endure this threat of torture,
with its terrifying formalities and adjurations, and it was frequently
effective.
* * * * *
The conditions held to justify torture were that the offence charged was
of sufficient gravity, and that the evidence, while not wholly decisive,
was such that the accused should have the opportunity of "purging" it,
by endurance proportionate to its strength. From the inquisitor's point
of view, it was a favor to the accused, as it gave him a chance which
was denied to those whose condemnation was resolved upon. This is
illustrated by a highly significant case in the Toledo tribunal in 1488.
Juan del Rio had lived long in Rome, where he was present in the jubilee
of 1475; by the arts of the courtier he won the favor of Sixtus IV and
returned to Spain about 1483, loaded with benefices--among them a
prebend in the Toledo cathedral--which excited cupidity and enmity. He
was an Old Christian, of pure Biscayan descent, who could not be
suspected of Judaism, but he was a loose and inconsiderate chatterer; in
the Spain which he had left there was much licence, in the Rome where he
had so long sojourned there was more; he could not, on his return,
accommodate himself to the new order of things, and his reckless talk
gave the opportunity of making vacancies of his numerous preferments.
The evidence against him was of the flimsiest; the most serious charge
was that, when a tenant had been unable to pay rent on account of the
Inquisition, he had petulantly wished it at the devil. At a later period
he would have had a chance to purge the evidence by the water-torture,
but this was not permitted him; he was hurried to the stake as a
pertinacious _negativo_, leaving his spoils to those who could grasp
them.[21]
It was a well-accepted maxim of the civil law that torture should not be
employed when the penalty of the crime charged was less severe than the
infliction of torture--an equation of suffering which afforded to the
doctors ample opportunity of defining the unknown quantity. This was
fully accepted by the Inquisition and we are told that torture is not
indicated for propositions merely offensive, rash, scandalous or
blasphemous, or for the assertion that simple fornication is not a
mortal sin, or for heretical blasphemy, or sorcery, or for propositions
arising from ignorance, or for bigamy or solicitation in the
confessional, or for lying under excommunication for a year, or for
other matters which infer only light suspicion of heresy, even though
for some of these offences the punishment was scourging and the galleys.
Torture is freely alluded to as an irreparable injury the use of which
would be unjustifiable in such matters.[22]
[Sidenote: _CONDITIONS_]
This, however, was, like everything else in this nebulous region, open
to considerable laxity in application. When Francisco de Tornamira, a
boy of eighteen and page of the Duke of Pastrana, was tried in 1592, on
the charge of having said that Jews and Moors could be saved if they had
faith in their respective beliefs, he denied and was tortured till he
confessed, and then the triviality of his offence was admitted by
subjecting him only to abjuration _de levi_, to hearing a mass as a
penitent in the audience-chamber, and to a reprimand. The same tribunal
in 1579, tried Stefano Grillen, an Italian, who, in a discussion with
some chance fellow-travellers, maintained that the miracles at the
shrines of Our Lady of Atocha and of la Caridad were wrought by the
Virgin herself and not by her images. He freely confessed but was
tortured--apparently on intention--and was dismissed with the same
trivial punishment as Tornamira.[23] Even more suggestive is the case of
Juan Pereira, a boy of fifteen, tried, in 1646, for Judaism at
Valladolid. The proceedings were dilatory and he gradually became
demented; nothing could be done with him and opinions were divided as to
the reality of his insanity. The Suprema was applied to and sagely
ordered torture to find out. It was administered, April 22, 1648, but
the method of diagnosis was not as successful as its ingenuity deserved
and, in August, he was sent to a hospital for six months, with
instructions to observe him carefully. As his name after this disappears
from the records, he probably died in the hospital.[24] It is evident
that the Inquisition did not take to heart the warning issued by the
Suprema, in 1533, that torture was a very delicate matter.[25]
When we come to inquire as to the character of evidence requiring
torture for its elucidation, we find how illusory were all the attempts
of the legists to lay down absolute rules, and how it all ended in
leaving the matter to the discretion of the tribunal. As confession,
though desired, was not essential to conviction, the _negativo_ who was
convicted on sufficient evidence was not to be tortured, but was to be
relaxed. Even this rule, however, could be set aside at the caprice of
the judge, though he was warned, in such cases, to put on record a
protest that he did not direct the torture against the matters that had
been proved, for the very good reason that endurance of torture might
purge them and nullify the proof.[26] It was impossible to reduce to a
logical formula that which in its essence was illogical, or to frame an
accurate definition of evidence that was insufficient for conviction yet
sufficient for torture. It was easy to say that _semiplena_ evidence
suffices, but what was semiplena? One authority will tell us that a
single witness, even an accomplice, justifies torture, another that
three accomplice witnesses are requisite. One impartial and
unexceptionable witness, again, is sometimes held to require public fame
as an adjuvant, but the records are full of cases in which torture was
employed on the unsupported testimony of a single witness. The weight of
other more or less confirmatory evidence was also keenly debated,
without reaching substantial agreement--whether flight before arrest, or
breaking gaol, or vacillation and equivocation when examined, or even
pallor, was sufficient justification.[27] It is not surprising,
therefore, that, as a practical result, we are told that all these
questions must be left to the discretion of the judge, to be decided in
each individual case.[28] Under such conditions it would be useless to
expect consistency of practice in all tribunals and at all periods. We
have seen above that cases were sometimes suspended because evidence had
not been ratified, yet the Toledo tribunal, in 1584, tortured Lope el
Gordo for that very reason, because the chief witness against him had
not ratified his testimony, and it is satisfactory to add that Lope
endured the torments and thus earned suspension of his case.[29]
The _diminuto_, whose confession did not cover all the adverse evidence,
was, according to rule, to be tortured in order to account for the
deficiency. If he endured without further admission, he was to be
punished on the basis of what he had confessed, but if he did not thus
purge the evidence, he was to be sent to the galleys. This was sometimes
done in mere surplusage, apparently to gratify the curiosity of the
tribunal, as in the Toledo case of Antonio de Andrada, in 1585, who
confessed what was amply sufficient for his punishment, but, as there
were some omissions, was tortured to elucidate them. In the seventeenth
century, however, we are assured that there was much caution used in
torturing diminutos, and that it was not done unless the omitted matters
were such as to call for relaxation. If they concerned accomplices,
however, whom the culprit was suspected of shielding, he was tortured
_in caput alienum_. Retraction or vacillation of confession necessarily
required torture to reconcile the contradiction; this occurred chiefly
with timid persons, frightened by the demand of the fiscal for torture,
and thus led to make admissions which they subsequently recalled, thus
bringing upon themselves what they had sought to avoid.[30] The question
of intention, in the performance of acts in themselves indifferent, was,
as we have seen, the frequent occasion of torture, as there was no other
means known to the jurisprudence of the period, which was bent on
ascertaining the secrets of the offender's mind.
[Sidenote: _WITNESSES_]
Yet it is possible that in some cases, when torture appears to be pure
surplusage, there may have been the kindly intention of contributing to
the salvation of the sufferer, by inducing or confirming his conversion;
for habitual persecution for the greater glory of God induced a state of
mind precluding all rational intellectual processes, where the faith was
concerned. Thus Rojas tells us that there should be no hesitation in the
use of torture, when the salvation of the culprit's soul was involved,
so that he might be reconciled to the Church and undergo penance through
which he might be saved.[31] This reasoning was urged in the case of
Réné Perrault, in 1624, by some of the consultores of the tribunal of
Toledo. His crime of maltreating the Host was public and unquestionable,
but he had varied in his statements as to his faith; the consulta de fe
was unanimous in ordering torture to discover possible accomplices, but
some of the members desired a special additional torture in order to
confirm him in the faith and save his soul.[32]
* * * * *
That witnesses should be tortured, in order to obtain or confirm their
testimony, is an abuse which, repulsive as it may seem to us, has been,
with more or less disguise, a practice wherever torture has been used.
It is true that the Roman law prohibited that one who had admitted his
own guilt should be examined as to that of another, and this principle,
adopted in the False Decretals, became a part of the early canon
law.[33] The Inquisition, however, regarded the conviction of a heretic
as only the preliminary to forcing him to denounce his associates; the
earliest papal utterance, in 1252, authorizing its use of torture,
prescribed the employment of this means to discover accomplices and
finally Paul IV and Pius V decreed that all who were convicted and
confessed should, at the discretion of the inquisitors, be tortured for
this purpose.[34] The _question préalable_ or _définitive_, in which the
convict was tortured to make him reveal his associates, became, through
the influence of the Inquisition, a part of the criminal jurisprudence
of all lands in which torture was employed. It was, in reality, the
torture of witnesses, for the criminal's fate had been decided, and he
was thus used only to give testimony against others.
The Spanish Inquisition was, therefore, only following a general
practice when it tortured, _in caput alienum_, those who had confessed
their guilt. No confession was accepted as complete unless it revealed
the names of those whom the penitent knew to be guilty of heretical
acts, if there was reason to suspect that he was not fully discharging
his conscience in this respect, torture was the natural resort. Even the
impenitent or the relapsed, who was doomed to relaxation, was thus to be
tortured and was to be given clearly to understand that it was as a
witness and not as a party, and that his endurance of torture would not
save him from the stake. The Instructions of 1561, however, warn
inquisitors that in these cases much consideration should be exercised
and torture _in caput alienum_ was rather the exception in Spain, than
the rule as in Rome.[35] In the case of the _negativo_, against whom
conclusive evidence was had, and who thus was to be condemned without
torture, the device of torturing him against his presumable accomplices
afforded an opportunity of endeavoring to secure his own confession and
conversion. We have seen this fail, in 1596, in the Mexican case of
Manuel Diaz, nor was it more successful in Lima, in 1639, with Enrique
de Paz y Mello, although the final outcome was different. He
persistently denied through five successive publications of evidence, as
testimony against him accumulated in the trials of his associates. He
was sentenced to relaxation and torture _in caput alienum_; it was
administered with great severity without overcoming his fortitude, and
he persisted through five other publications as fresh evidence was
gathered. Yet at midnight before the auto de fe, in which he was to be
burnt, he weakened. He confessed as to himself and others and his
sentence was modified to reconciliation and the galleys, while good use
was made of his revelations against thirty of his accomplices.[36]
[Sidenote: _NO EXEMPTIONS_]
The torture of witnesses who were not themselves under trial was
permitted when they varied or retracted, or so contradicted other
witnesses that it was deemed necessary thus to ascertain the truth; but
whether clerical witnesses could be so treated was a subject of debate.
As a rule torture in such cases was directed to be moderate, neither
light nor excessive, but when testimony was revoked it could be repeated
up to three inflictions.[37] As we have seen above (Vol. II, p. 537)
slaves testifying in the cases of their masters could always be tortured
if necessary to confirm their evidence. In the prosecution of Juan de la
Caballería, in 1488, as accessory to the murder of San Pedro Arbués, his
slave-girl Lucía gave compromising evidence which she was persuaded to
retract, with the result that she was twice tortured and confirmed
it.[38]
* * * * *
Like _majestas_, in heresy there were no privileged classes exempt from
torture. Nobles were subject to it and so were ecclesiastics of all
ranks, but the latter were to be tortured less severely than laymen,
unless the case was very grave, and they were entitled to a clerical
torturer if one could be found to perform the office. As in their
arrest, so in torture the sentence, by a carta acordada of 1633, had to
be submitted to the Suprema for confirmation.[39]
As regards age, there seems to have been none that conferred exemption.
Llorente, indeed, in describing a case in which a woman of ninety was
tortured at Cuenca, says that this was contrary to the orders of the
Suprema which prescribed that the aged should only be placed _in
conspectu tormentorum_,[40] but I have never met with such a rule. In
1540 the Suprema ordered that consideration should be given to the
quality and age of the accused and, if advisable, the torture should be
very moderate, while the Instructions of 1561, which are very full,
impose no limit of age and leave everything to the discretion of the
tribunal.[41] Cases are by no means infrequent in which age combined
with infirmity is given as a reason for omitting torture or inflicting
it with moderation, but age alone offered no exemption. At a Toledo auto
de fe we find Isabel Canese, aged seventy-eight, who promptly confessed
before the torture had proceeded very far, and Isabel de Jaen, aged
eighty who, at the fifth turn of the cords fainted and was revived with
difficulty.[42] In 1607, at Valencia, Jaime Chuleyla, aged seventy-six,
after confessing certain matters, was accused by a new witness of being
an alfaquí; this he denied and was duly tortured.[43]
Not much more respect was paid to youth. In 1607, at Valencia, Isabel
Madalena, a girl of thirteen, who was vaguely accused of Moorish
practices, was tortured, overcame the torture and was penanced with a
hundred lashes. In the same year that tribunal showed more consideration
for Joan de Heredia, a boy of ten or eleven, whom a lying witness
accused of going to a house where Moorish doctrines were taught. On his
steadfast denial, he was sentenced to be placed _in conspectu
tormentorum_, which was carried out in spite of an appeal by his
procurator, but he persisted in asserting his innocence and the case was
suspended.[44] Mental incapacity, short of insanity, was not often
allowed exemption and it is creditable to the Valencia tribunal that
when, about 1710, the Suprema ordered the torture of Joseph Felix, for
intention with regard to certain propositions, it remonstrated and
represented that he was too ignorant to comprehend the object of the
torture.[45]
* * * * *
[Sidenote: _CONDITION OF PATIENT_]
It was a universal law that torture should not endanger life or limb
and, although this was often disregarded when the work was under way, it
called for a certain amount of preliminary caution to see that the
patient was in condition promising endurance--caution admitted in theory
but not always observed in practice. When there was doubt, the physician
of the Inquisition was sometimes called in, as in the case of Rodrigo
Pérez, at Toledo, in 1600, who was sick and weak, and the medical
certificate that torture would endanger health and life sufficed to save
him, but the Suprema was not so considerate when, in 1636, it ordered
the Valencia tribunal to torture Joseph Pujal before transferring him to
the hospital, as was done afterwards on account of his illness.[46]
Pregnancy has always been deemed a sufficient reason for at least
postponing the infliction, but the Madrid tribunal, in instructions of
1690, only makes the concession of placing pregnant women on a seat, in
place of binding them on the rack, while applying the exceedingly severe
torture of the _garrote_--sharp cords, two on each arm and two on each
leg, bound around the limb and twisted with a short lever.[47] Hernia
was regarded, at least in the earlier time, as precluding torture, and I
have met with several cases in which it served to exempt the patient
but, in 1662, the official instructions of the Suprema order that no
exceptions be made on that account, save the omission of the _trampazo
vigoroso_, which causes downward strain; in the other tortures a good
strong truss suffices to avert danger and it should always be kept on
hand in readiness for such subjects.[48] In accordance with this the
Madrid tribunal in 1690, orders for hernia cases the use of the seat
provided for pregnant women. As regards women who were suckling, there
seems to have been no established rule. In 1575, when the Valencia
tribunal proposed to torture María Gilo, the physician who was called in
reported that it would expose the child to imminent risk and the purpose
was abandoned. In 1608, however, at Toledo, when the same question arose
in the case of Luisa de Narvaez, the consulta voted in discordia and the
Suprema ordered her to be tortured.[49]
Besides these generalities, there were occasional special cases in which
torture was abandoned in consequence of the condition of the
patient--heart disease, excessive debility, repeated faintings during
the administration and other causes. The physician and the surgeon were
always called in, when the prisoner was stripped, to examine him and
they were kept at hand to be summoned in case of accident. The tribunals
seem to have been more tender-hearted than the Suprema which, in its
instructions of 1662, reproved inquisitors who avoid sentencing to
torture on account of weakness or of a broken arm. This, it says, is not
proper, because it forfeits the opportunity of obtaining confession in
the various preliminaries of reading the sentence, carrying to the
torture-chamber, stripping him and tying him to the trestle; besides,
after commencing, the torture is always to be stopped when the physician
so orders.[50] There was another salutary precaution--that there should
be a proper interval between the last meal and the torture. About 1560,
Inquisitor Cervantes says that the patient is not to have food or drink
on the evening before or on the morning of the infliction and, in 1722,
a writer specifies eight hours for the preliminary fasting.[51]
* * * * *
[Sidenote: _THE EXECUTIONER_]
In the administration of torture, all the inquisitors and the episcopal
representative were required to be present, with a notary or secretary
to record the proceedings. No one else save the executioner was allowed
to be present, except when the physician or surgeon was called in. In
the earlier period, there was some trouble in providing an official to
perform the repulsive work. An effort seems to have been made to compel
the minor employees to do it but with doubtful success. Ferdinand, in a
letter of July 22, 1486, to Torquemada, complains that the inquisitors
of Saragossa had employed a torturer because the messengers had refused
to do the work, and he suggests that a messenger be discharged and the
torturer serve in his place without increase of salary; if this cannot
be done the salary should be reduced. No salaried torturer appears in
the pay-rolls; the duties were not constant and doubtless when wanted
proper functionaries were called in and paid--but there is
suggestiveness in a letter of Ferdinand, in 1498, ordering the
restoration of a certain Pedro de Moros, who had been dropped, to serve
as messenger and "for such other duties as the inquisitors might order"
at five hundred sueldos a year.[52] At one time the alcaide of the
prison seems to have been the official torturer for, in 1536, the
Suprema writes to the inquisitors of Navarre that, if their alcaide is
not skilled in the business, they must find some one who is, and not
work the implements themselves, as they seem to have done, for it is not
befitting the dignity of their persons or office.[53] In 1587, at
Valencia, we hear that the messenger and portero served as assistants
and the Suprema ordered the work to be entrusted to a confidential
familiar.[54] Eventually however the tribunals employed the public
executioner of the town, who was skilled in his vocation. When, in 1646,
at Valladolid, Isabel López was ordered to be tortured on November 23d,
the alcaide reported that the public functionary was absent and the time
of his return was uncertain; the torture was necessarily postponed and,
on the 27th, Isabel took it into her head to confess and thus escaped
the infliction.[55] In Madrid, from March to August, 1681, Alonso de
Alcalá, the city executioner, was paid by the tribunal forty-four
ducats, for eleven torturings, at four ducats apiece.[56] It seems
strange that objection should be made to the torturer being disguised
but, in 1524, the Suprema forbade him to wear a mask or to be wrapped in
a sheet; subsequently he was permitted to wear a hood and to change his
garments and, in the seventeenth century, a mask and other disguise were
permissible, if it were thought best that he should not be
recognized.[57]
At every stage in the preliminaries, after reading the sentence, taking
the prisoner down to the torture-chamber, calling in the executioner,
stripping the prisoner and tying him to the trestle, there was a pause
in which he was solemnly adjured to tell the truth for the love of God,
as the inquisitors did not desire to see him suffer.[58] The exposure of
stripping was not a mere wanton aggravation but was necessary, for the
cords around the thighs and arms, the belt at the waist with cords
passing from it over the shoulders from front to back, required access
to every portion of the body and, at the end of the torture, there was
little of the surface that had not had its due share of agony. Women as
well as men were subjected to this, the slight concession to decency
being the _zaragüelles_ or _paños de la vergüenza_, a kind of
abbreviated bathing-trunks, but the denudation seems to have been
complete before these were put on.[59] The patient was admonished not
to tell falsehoods about himself or others and, during the torture, the
only words to be addressed to him were "Tell the truth." No questions
were to be put and no names mentioned to him, for the reason, as we are
told, that the sufferers in their agonies were ready to say anything
that was in any way suggested, and to bear false-witness against
themselves and others. The executioner was not to speak to the patient,
or make faces at him, or threaten him, and the inquisitors should see
that he so arranged the cords and other devices as not to cause
permanent crippling or breaking of the bones. The work was to proceed
slowly with due intervals between each turn of the _garrotes_ or hoist
in the _garrucha_, or otherwise the effect was lost, and the patient was
apt to overcome the torture.
It was a universal rule that torture could be applied only once, unless
new evidence supervened which required purging, but this restriction was
easily evaded. Though torture could not be repeated, it could be
continued and, when it was over, the patient was told that the
inquisitors were not satisfied, but were obliged to suspend it for the
present, and that it would be resumed at another time, if he did not
tell the whole truth. Thus it could be repeated from time to time as
often as the consulta de fe might deem expedient.[60] The secretary
faithfully recorded all that passed, even to the shrieks of the victim,
his despairing ejaculations and his piteous appeals for mercy or to be
put to death, nor would it be easy to conceive anything more fitted to
excite the deepest compassion than these cold-blooded, matter-of-fact
reports.
* * * * *
As for the varieties of torture currently employed, it must be borne in
mind that the Inquisition largely depended on the public executioners,
and its methods thus were necessarily identical with those of the
secular courts; while even when its own officials performed the duty,
they would naturally follow the customary routine. The Inquisition thus
had no special refinements of torture and indeed, so far as I have had
opportunity of investigation, it confined itself to a few methods out of
the abundant repertory of the public functionaries.
[Sidenote: _VARIETIES_]
In the earlier period only two tortures were generally in vogue--the
_garrucha_ or pulleys and the water-torture. These are the only ones
alluded to by Pablo García and both of them were old and
well-established forms.[61] The former, known in Italy as the
_strappado_, consisted in tying the patient's hands behind his back and
then, with a cord around his wrists, hoisting him from the floor, with
or without weights to his feet, keeping him suspended as long as was
desired and perhaps occasionally letting him fall a short distance with
a jerk. About 1620 a writer prescribes that the elevating movement
should be slow, for if it is rapid the pain is not lasting; for a time
the patient should be kept at tiptoe, so that his feet scarce touch the
floor; when hoisted he should be held there while the psalm Miserere is
thrice repeated slowly in silence, and he is to be repeatedly admonished
to tell the truth. If this fail he is to be lowered, one of the weights
is to be attached to his feet and he is to be hoisted for the space of
two Misereres, the process being repeated with increasing weights as
often and as long as may be judged expedient.[62]
The water-torture was more complicated. The patient was placed on an
_escalera_ or _potro_--a kind of trestle, with sharp-edged rungs across
it like a ladder. It slanted so that the head was lower than the feet
and, at the lower end was a depression in which the head sank, while an
iron band around the forehead or throat kept it immovable. Sharp cords,
called _cordeles_, which cut into the flesh, attached the arms and legs
to the side of the trestle and others, known as _garrotes_, from sticks
thrust in them and twisted around like a tourniquet till the cords cut
more or less deeply into the flesh, were twined around the upper and
lower arms, the thighs and the calves; a _bostezo_, or iron prong,
distended the mouth, a _toca_, or strip of linen, was thrust down the
throat to conduct water trickling slowly from a _jarra_ or jar, holding
usually a little more than a quart. The patient strangled and gasped and
suffocated and, at intervals, the toca was withdrawn and he was adjured
to tell the truth. The severity of the infliction was measured by the
number of jars consumed, sometimes reaching to six or eight. In 1490, in
the case of the priest Diego García, a single quart satisfied the
inquisitors and he was acquitted.[63] In the Mexican case of Manuel
Díaz, in 1596, the cordeles were applied; then seven garrotes were
twisted around arms and legs, the toca was thrust down his throat and
twelve jarras of a pint each were allowed to drip through it, the toca
being drawn up four times during the operation. In the Toledo case of
Marí Rodríguez, in 1592, the operation was divided, the cordeles being
applied while she was seated on the _banquillo_, and were given eight
turns; she was then transferred to the trestle, and the garrotes were
used, followed by the water; at the second jarra she vomited profusely;
she was untied and fell to the floor. The executioner lifted her up and
put on her chemise; she was told that if she would not tell the truth
the torture would be continued; she protested that she had told the
truth and it was suspended. For nine months she was left in her cell,
then the consulta de fe voted to suspend the case and she was told to be
gone in God's name.[64]
It was probably not long after this that these forms of torture
gradually fell into disuse and were replaced by others which apparently
were regarded as more merciful. In 1646 the Suprema applied to the
tribunal of Córdova for information concerning the garrucha and silla
and for a description of the _trampa_ and _trampazo_ which it used, with
an estimate of their severity. The tribunal replied that the silla had
been abandoned because it could scarce be called a torture and the
garrucha on account of the danger of causing dislocations. For more than
thirty years the tribunal, as well as the secular courts, had
discontinued its use as also the brazier of coals, heated plates of
metal, hot bricks, the toca with seven pints of water, the
_depiñoncillo_, _escarabajo_, _tablillas_, _sueño_ and others. The
methods in use were the cordeles and garrotes, of which there were three
kinds, the _vuelta de trampa_, the _mancuerda_ and stretching the
accused in the _potro_ or rack.
[Sidenote: _VARIETIES_]
The letter proceeds to describe at great length and in much detail these
somewhat complicated processes. In abandoning the pulleys and the
water-jar, the patient gained little. He was adjusted for torment by a
belt or girdle with which he was swung from the ground; his arms were
tied together across his breast and were attached by cords to rings in
the wall. For the trampa or trampazo the ladder in the potro had one of
its rungs removed so as to enable the legs to pass through; another bar
with a sharp edge was set below it and through this narrow opening the
legs were forcibly pulled by means of a cord fastened around the toes
with a turn around the ankle. Each _vuelta_, or turn given to the cord,
gained about three inches; five vueltas were reckoned a most rigorous
torture, and three were the ordinary practice, even with the most
robust. Leaving him stretched in this position, the next step was the
mancuerda, in which a cord was passed around the arms, which the
executioner wound around himself and threw himself backward, casting his
whole weight and pushing with his foot against the potro. The cord, we
are told, would cut through skin and muscle to the bone, while the body
of the patient was stretched as in a rack, between it and the cords at
the feet. The belt or girdle at the waist, subjected to these alternate
forces was forced back and forth and contributed further to the
suffering. This was repeated six or eight times with the mancuerda, on
different parts of the arms, and the patients usually fainted,
especially if they were women.
After this the potro came in play. The patient was released from the
trampa and mancuerda and placed on the eleven sharp rungs of the potro,
his ankles rigidly tied to the sides and his head sinking into a
depression where it was held immovable by a cord across the forehead.
The belt was loosened so that it would slip around. Three cords were
passed around each upper arm, the ends being carried into rings on the
sides of the potro and furnished with garrotes or sticks to twist them
tight; two similar ones were put on each thigh and one on each calf,
making twelve in all. The ends were carried to a _maestra garrote_ by
which the executioner could control all at once. These worked not only
by compression but by travelling around the limbs, carrying away skin
and flesh. Each half round was reckoned a _vuelta_ or turn, six or seven
of which was the maximum, but it was usual not to exceed five, even with
strong men. Formerly the same was done with the cord around the
forehead, but this was abandoned as it was apt to start the eyes from
their sockets. All this, the Cordova tribunal concludes, is very
violent, but it is less so and less dangerous than the abandoned
methods.
These remained practically the tortures in use. In 1662 the Suprema, in
ordering the tribunal of Galicia to "continue" the torture of Antonio
Méndez, called upon it to report as to its manner of administering
torture. Its answer of May 13th shows that it was using the mancuerda
and potro, though after a somewhat primitive fashion. To this, by order
of the Suprema, Gonzalo Bravo replied, May 22d with elaborate
instructions, especially as to the trampazo, indicating that
substantially the methods described by Córdova were recognized
officially. Galicia appears to have puzzled over this until September
19th, when it apologized for its lack of experience and asked for
detailed plans and drawings of the form of potro required. It is fairly
presumable from all this that thenceforward these new methods were
adopted in all the tribunals.[65]
* * * * *
[Sidenote: _SEVERITY_]
There was and could be no absolute limitation on the severity of
torture. The Instructions of 1561 say that the law recognizes it as
uncertain and dangerous in view of the difference in bodily and mental
strength among men, wherefore no certain rule can be given, but it must
be left to the discretion of judges, to be governed by law, reason and
conscience.[66] All that Gonzalo Bravo can say, in the Instructions of
1662, is that its proper regulation determines the just decision of
cases, and the verification of truth; the discretion and prudence of the
judges must look to this, tempered by the customary compassion of the
Holy Office, in such way that it shall neither exceed nor fall short.
How this discretion was exercised depended wholly on the temper of the
tribunal. One authority tells us that torture should never be prolonged
more than half an hour, but the cases are numerous in which it lasted
for two and even three hours. In that of Antonio López, at Valladolid,
in 1648, it commenced at eight o'clock and continued until eleven,
leaving him with a crippled arm; in a fortnight he endeavored to
strangle himself, and he died within a month.[67] Such cases were by no
means rare. Gabriel Rodríguez, at Valencia, about 1710, was tortured
thrice and condemned to the galleys, but this was commuted on finding
that he was crippled "por la violencia de la tortura."[68] Nor was death
by any means unknown. In 1623, Diego Enríquez, at Valladolid, was
tortured December 13th. In the process an "accident" occurred and he was
carried to his cell. On the 15th the physician reported that he should
be removed to a hospital, which was done with the greatest secrecy and
he died there. There is something hideously suggestive in such a matter
of fact record as that of Blanca Rodríguez Matos, at Valladolid, which
simply says that she was voted to torture, May 21, 1655, and it having
been executed she died the same day; the case was continued against her
fame and memory and, in due course, was suspended, November 19th.[69]
The very large number of cases recorded in which the accused overcame
the torture without confession would argue that it was frequently light.
This is doubtless true to a great extent, but the surprising endurance
sometimes displayed shows that this was not always the case. Thus Tomás
de Leon, at Valladolid, November 5, 1638, was subjected to all the
successive varieties and overcame them, although at the end it was found
that his left arm was broken. So, in 1643, in the same tribunal,
Engracia Rodríguez, a woman sixty years of age, had a toe wrenched off
while in the _balestilla_. Nevertheless the torture proceeded until, in
the first turn of the mancuerda, an arm was broken. It then was stopped
without having extorted a confession, but her fortitude availed her
little, for fresh evidence supervened against her and, some ten months
later, she confessed to Jewish practices. Another of the same group,
Florencia de Leon, endured the balestilla, three turns of the mancuerda
and the potro without confessing, but she did not escape without
reconciliation and prison.[70]
The process and its effects on the patient can best be understood from
the passionless business-like reports of the secretary, in which the
incidents are recorded to enable the consulta de fe to vote
intelligently. They are of various degrees of horror and I select one
which omits the screams and cries of the victim that are usually set
forth. It is a very moderate case of water-torture, carried only to a
single jarra, administered in 1568 by the tribunal of Toledo to Elvira
del Campo, accused of not eating pork and of putting on clean linen on
Saturdays. She admitted the acts but denied heretical intent and was
tortured on intention. On April 6th she was brought before the
inquisitors and episcopal vicar and, after some preliminaries, was told
that it was determined to torture her, and in view of this peril she
should tell the truth, to which she replied that she had done so. The
sentence of torture was then read, when she fell on her knees and begged
to know what they wanted her to say. The report proceeds:
[Sidenote: _REPORTS_]
She was carried to the torture-chamber and told to tell the truth,
when she said that she had nothing to say. She was ordered to be
stripped and again admonished, but was silent. When stripped, she
said "Señores, I have done all that is said of me and I bear
false-witness against myself, for I do not want to see myself in
such trouble; please God, I have done nothing." She was told not to
bring false testimony against herself but to tell the truth. The
tying of the arms was commenced; she said "I have told the truth;
what have I to tell?" She was told to tell the truth and replied "I
have told the truth and have nothing to tell." One cord was applied
to the arms and twisted and she was admonished to tell the truth
but said she had nothing to tell. Then she screamed and said "I
have done all they say." Told to tell in detail what she had done
she replied "I have already told the truth." Then she screamed and
said "Tell me what you want for I don't know what to say." She was
told to tell what she had done, for she was tortured because she
had not done so, and another turn of the cord was ordered. She
cried "Loosen me, Señores and tell me what I have to say: I do not
know what I have done, O Lord have mercy on me, a sinner!" Another
turn was given and she said "Loosen me a little that I may remember
what I have to tell; I don't know what I have done; I did not eat
pork for it made me sick; I have done everything; loosen me and I
will tell the truth." Another turn of the cord was ordered, when
she said "Loosen me and I will tell the truth; I don't know what I
have to tell--loosen me for the sake of God--tell me what I have to
say--I did it, I did it--they hurt me Señor--loosen me, loosen me
and I will tell it." She was told to tell it and said "I don't know
what I have to tell--Señor I did it--I have nothing to tell--Oh my
arms! release me and I will tell it." She was asked to tell what
she did and said "I don't know, I did not eat because I did not
wish to." She was asked why she did not wish to and replied "Ay!
loosen me, loosen me--take me from here and I will tell it when I
am taken away--I say that I did not eat it." She was told to speak
and said "I did not eat it, I don't know why." Another turn was
ordered and she said "Señor I did not eat it because I did not wish
to--release me and I will tell it." She was told to tell what she
had done contrary to our holy Catholic faith. She said "Take me
from here and tell me what I have to say--they hurt me--Oh my arms,
my arms!" which she repeated many times and went on "I don't
remember--tell me what I have to say--O wretched me!--I will tell
all that is wanted, Señores--they are breaking my arms--loosen me a
little--I did everything that is said of me." She was told to tell
in detail truly what she did. She said "What am I wanted to tell? I
did everything--loosen me for I don't remember what I have to
tell--don't you see what a weak woman I am?--Oh! Oh! my arms are
breaking." More turns were ordered and as they were given she cried
"Oh! Oh! loosen me for I don't know what I have to say--Oh my
arms!--I don't know what I have to say--if I did I would tell it."
The cords were ordered to be tightened when she said "Señores have
you no pity on a sinful woman?" She was told, yes, if she would
tell the truth. She said, "Señor tell me, tell me it." The cords
were tightened again, and she said "I have already said that I did
it." She was ordered to tell it in detail, to which she said "I
don't know how to tell it señor, I don't know." Then the cords were
separated and counted, and there were sixteen turns, and in giving
the last turn the cord broke.
She was then ordered to be placed on the potro. She said "Señores,
why will you not tell me what I have to say? Señor, put me on the
ground--have I not said that I did it all?" She was told to tell
it. She said "I don't remember--take me away--I did what the
witnesses say." She was told to tell in detail what the witnesses
said. She said "Señor, as I have told you, I do not know for
certain. I have said that I did all that the witnesses say. Señores
release me, for I do not remember it." She was told to tell it. She
said "I do not know it. Oh! Oh! they are tearing me to pieces--I
have said that I did it--let me go." She was told to tell it. She
said "Señores, it does not help me to say that I did it and I have
admitted that what I have done has brought me to this
suffering--Señor, you know the truth--Señores, for God's sake have
mercy on me. Oh Señor, take these things from my arms--Señor
release me, they are killing me." She was tied on the potro with
the cords, she was admonished to tell the truth and the garrotes
were ordered to be tightened. She said "Señor do you not see how
these people are killing me? Señor, I did it--for God's sake let me
go." She was told to tell it. She said "Señor, remind me of what I
did not know--Señores have mercy upon me--let me go for God's
sake--they have no pity on me--I did it--take me from here and I
will remember what I cannot here." She was told to tell the truth,
or the cords would be tightened. She said "Remind me of what I have
to say for I don't know it--I said that I did not want to eat it--I
know only that I did not want to eat it," and this she repeated
many times. She was told to tell why she did not want to eat it.
She said, "For the reason that the witnesses say--I don't know how
to tell it--miserable that I am that I don't know how to tell it--I
say I did it and my God how can I tell it?" Then she said that, as
she did not do it, how could she tell it--"They will not listen to
me--these people want to kill me--release me and I will tell the
truth." She was again admonished to tell the truth. She said, "I
did it, I don't know how I did it--I did it for what the witnesses
say--let me go--I have lost my senses and I don't know how to tell
it--loosen me and I will tell the truth." Then she said "Señor, I
did it, I don't know how I have to tell it, but I tell it as the
witnesses say--I wish to tell it--take me from here--Señor as the
witnesses say, so I say and confess it." She was told to declare
it. She said "I don't know how to say it--I have no memory--Lord,
you are witness that if I knew how to say anything else I would say
it. I know nothing more to say than that I did it and God knows
it." She said many times, "Señores, Señores, nothing helps me. You,
Lord, hear that I tell the truth and can say no more--they are
tearing out my soul--order them to loosen me." Then she said, "I do
not say that I did it--I said no more." Then she said, "Señor, I
did it to observe that Law." She was asked what Law. She said, "The
Law that the witnesses say--I declare it all Señor, and don't
remember what Law it was--O, wretched was the mother that bore me."
She was asked what was the Law she meant and what was the Law that
she said the witnesses say. This was asked repeatedly, but she was
silent and at last said that she did not know. She was told to tell
the truth or the garrotes would be tightened but she did not
answer. Another turn was ordered on the garrotes and she was
admonished to say what Law it was. She said "If I knew what to say
I would say it. Oh Señor, I don't know what I have to say--Oh! Oh!
they are killing me--if they would tell me what--Oh, Señores! Oh,
my heart!" Then she asked why they wished her to tell what she
could not tell and cried repeatedly "O, miserable me!" Then she
said "Lord bear witness that they are killing me without my being
able to confess." She was told that if she wished to tell the truth
before the water was poured she should do so and discharge her
conscience. She said that she could not speak and that she was a
sinner. Then the linen toca was placed [in her throat] and she said
"Take it away, I am strangling and am sick in the stomach." A jar
of water was then poured down, after which she was told to tell the
truth. She clamored for confession, saying that she was dying. She
was told that the torture would be continued till she told the
truth and was admonished to tell it, but though she was questioned
repeatedly she remained silent. Then the inquisitor, seeing her
exhausted by the torture, ordered it to be suspended.
It is scarce worth while to continue this pitiful detail. Four days were
allowed to elapse, for experience showed that an interval, by stiffening
the limbs, rendered repetition more painful. She was again brought to
the torture-chamber but she broke down when stripped and piteously
begged to have her nakedness covered. The interrogatory went on, when
her replies under torture were more rambling and incoherent than before,
but her limit of endurance was reached and the inquisitors finally had
the satisfaction of eliciting a confession of Judaism and a prayer for
mercy and penance.[71]
[Sidenote: _RATIFICATION OF CONFESSION_]
It is impossible to read these melancholy records without amazement that
the incoherent and contradictory admissions through which the victim,
in his increasing agonies, sought to devise some statement in
satisfaction of the monotonous command to tell the truth, should have
been regarded by statesmen and lawgivers as possessed of intrinsic
value. The result was a test of endurance and not of veracity. In one
case we find a man of such fibres and nerves that all the efforts of the
torturer fail to elicit aught but denial--the cords may rasp through the
flesh to the bone and limbs be wrenched to the breaking without
affecting his constancy. In another, when a few turns of the garrote
have twisted a single cord into his arm--or even at the mere aspect of
the torture-chamber, with its grimly suggestive machinery--he will yield
and confess all that is wanted as to himself and all the comrades whose
names he can recall in the dizziness of his suffering. Yet, with full
knowledge of this, for centuries the secular and ecclesiastical courts
of the greater part of Christendom persisted in the use of a system
which, in the name of justice, perpetrated an infinite series of
atrocities.
* * * * *
Yet, as though still more effectually to deprive the system of all
excuse, the confession obtained at such cost was practically admitted to
be in itself worthless. To legalize it, a ratification was required,
after an interval of at least twenty-four hours, to be freely made,
without threats and apart from the torture-chamber. This was essential
in all jurisdictions, and the formula in the Inquisition was to bring
the prisoner into the audience-chamber, where his confession was read to
him as it had been written down. He was asked whether it was true or
whether he had anything to add or to omit and, under his oath, he was
expected to declare that it was properly recorded, that he had no change
to make and that he ratified it, not through fear of torture, or from
any other cause, but solely because it was the truth. Such ratification
was required even when the confession was made on hearing the sentence
of torture read or when placed _in conspectu tormentorum_.[72] This was
customarily done on the afternoon of the next day, to allow the full
twenty-four hours to expire, but there was sometimes a longer interval.
Thus, in the case of Catalina Hernández, at Toledo, who confessed on
being stripped, July 13, 1541, it was not until the 27th that her
ratification was taken, the inquisitors explaining that press of
business had prevented it earlier.[73]
The declaration in the ratification, that it was not made through fear
of torture was a falsehood, for, in all jurisdictions, a retraction of
the confession called for a repetition of torment, and in fact we
sometimes find that when the confession was made the prisoner was warned
not to retract for, if he did so, the torture would be "continued."[74]
This was possibly to evade a singularly humane provision in the
Instructions of 1484, to the effect that, if the confession is ratified,
the accused is to be duly punished, but if he retracts, in view of the
infamy resulting from the trial, he is to abjure publicly the heresy of
which he is suspect and be subjected to such penance as the inquisitors
may compassionately assign. The mercy of this, however, is considerably
modified by a succeeding clause that it is not to deprive them of the
right to repeat the torture in cases where by law they can and ought to
do so.[75] Still, it was probably the first portion of the provision
that guided the Toledo tribunal, in 1528, in the case of Diego de Uceda,
on trial for Lutheranism. At the sight of the torture-chamber he broke
down and admitted all that the witnesses had testified, but could not
remember what it was. As this was evidently inspired by fear, the
torture went on when, at the first turn of the garrote, he inculpated
himself so eagerly that he was warned not to bear false-witness against
himself. He declared it to be the truth and was untied. Before he was
called upon to ratify, he asked for an audience in which he ascribed his
confession to fear and declared himself ready to die for the faith of
the Church, and a week later he ratified this revocation, saying that he
was out of his senses under the torture. He was not tortured again and
his sentence, some months later, was in accordance with the Instructions
of 1484--to appear in an auto de fe, to abjure _de vehementi_ and to be
fined at the discretion of the inquisitors.[76]
[Sidenote: _REPETITION_]
Such cases, however, were exceptional and the regular practice was to
repeat the torture, when a confession followed by another revocation,
subjected the victim to a third torture.[77] Whether the process could
be carried on indefinitely was a doubtful question which some legists
answered in the negative on the general philosophic assumption that
nature and justice abhorred infinity, but this reasoning, however,
academically conclusive, was not respected in practice when a conviction
was desired. There was one dissuasive from revocation, which was brought
to bear when culprits gave unreasonable trouble, which was the penalty
incurred by _revocantes_. This is illustrated, as also the troublesome
questions which sometimes perplexed the tribunals, by the case of Miguel
de Castro, tried for Judaism, at Valladolid, in 1644. As a negativo, he
was tortured and confessed, after which he ratified, revoked and
ratified again. A process was commenced against him for revoking; he was
tortured again, until an arm was dislocated and he lost two fingers,
during which he confessed and then revoked the confession. He would have
been tortured a third time had not the physician and surgeon declared
him to be unable to endure it. The Suprema ordered him to be relaxed to
the secular arm, if he could not be induced to repent and return to the
Church, when, under the persuasion of two calificadores, he begged for
mercy and confessed as to himself and others. Finally he was sentenced
to reconciliation and irremissible prison and sanbenito, with a hundred
lashes as a special punishment for revocation, which was executed
January 21, 1646.[78]
Some culprits, we are told, cunningly took advantage of the opportunity
of retraction, by confessing at once, as soon as subjected to torture,
then recanting and repeating this process indefinitely, to the no small
disgust of the inquisitors. A writer of the close of the seventeenth
century, who mentions this, shows that the subject was then in an
indeterminate condition, by suggesting as a remedy that they should be
subjected to extraordinary penalties.[79] A case at Cuenca, in 1725, in
which these tactics were successful, indicates that by that time a third
torture was not recognized as lawful. Dr. Diego Matheo López Zapata, as
soon as the torturer was ready to begin, exclaimed that he was ready to
confess, and made a detailed confession of Judaic practices followed for
nearly fifty years. The next day he revoked and, when the torture was
resumed, he repeated his confession, only to revoke it as before. The
tribunal appears to have been powerless and contented itself with making
him appear in an auto de fe as a penitent, with a sanbenito to be
immediately removed, abjuration _de vehementi_ and twenty years' exile
from Cuenca, Murcia and Madrid.[80] At an earlier period he would scarce
have escaped without scourging, galleys and irremissible prison.
* * * * *
When torture was administered, without eliciting a confession, the
logical conclusion, if torture proved anything, was that the accused was
innocent. In legal phrase, he had purged the evidence and was entitled
to acquittal.[81] Such, indeed, was the law, but there was a natural
repugnance to being baffled, or to admit that innocence had been so
cruelly persecuted, and excuses were readily found to evade the law. On
such a subject there could be no definite line of practice prescribed,
and the situation is reflected by the Instructions of 1561, which tell
the inquisitor that, in such cases, he must consider the nature of the
evidence, the degree of torture employed, and the age and disposition of
the accused; if it appears that he has fully purged the evidence, he
should be fully acquitted, but if it seems that he has not been
sufficiently tortured he can be required to abjure either for light or
vehement suspicion, or some pecuniary penalty can be imposed, although
this should be done only with great consideration.[82] Thus the matter
was practically left to the discretion of the tribunal, with the implied
admission that, when torture proved unsuccessful, it was merely
surplusage.
[Sidenote: _ENDURANCE WITHOUT CONFESSION_]
The authorities naturally are not wholly at one with regard to the
practical applications of these principles--except that acquittal should
rarely be granted and, in fact, while the records are full of cases in
which torture was overcome, it is somewhat unusual to find the parties
acquitted, or their cases even suspended. About 1600 a writer tells us
that these cases are to be treated with some extraordinary penalty or
with acquittal or suspension, according to the degree of suspicion that
remains, but that Moriscos, however light the suspicion, must appear in
an auto de fe and abjure _de vehementi_ and, if there has been evidence
by single witnesses, they must be sent to the galleys for three years or
more; with other culprits, if the suspicion is light, there may be
acquittal or suspension, but suspension is the more usual. It all
depends upon the degree in which the evidence has been purged by the
torture.[83] As this degree was a matter purely conjectural,
inquisitorial discretion was unlimited.
The rule as to Moriscos is borne out by the Valencia auto de fe of 1607,
in which there appeared sixteen who had overcome the torture, most of
whom were visited with imprisonment, scourging or fines.[84] With their
expulsion in 1609-10, there was no further call for discrimination, and
the general practice is expressed about 1640, by an experienced
inquisitor, who tells us that, when there have been several single
witnesses, the accused who overcomes the torture should be subjected to
some severe extraordinary punishment, such as abjuring _de vehementi_,
with confiscation of half his property, or a heavy fine--the latter
being preferable as it is more easily collected and the culprit endures
it better in order to preserve his credit.[85] That this reflects the
current practice would appear from a Cuenca auto de fe, June 29, 1654.
Don Andrés de Fonseca had been required to abjure _de vehementi_, at
Valladolid in 1628; the evidence of his relapse was strong, but
insufficient for conviction; he endured torture without confessing; then
further evidence supervened and he was again tortured with the same
ill-success; he appeared in the auto as a penitent, abjured _de levi_,
with ten years' exile and a fine of five hundred ducats. Doña Theodora
Paula had overcome the torture and had abjuration de lev, six years'
exile and a fine of three hundred ducats. Doña Isabel de Miranda had
been unsuccessfully tortured and was sentenced to two years' exile and
three hundred ducats. So, after fruitless torture, Doña Isabel Henríquez
had the same punishment, and Manuel Lorenzo Madureyra was sentenced to
abjuration _de vehementi_, ten years' exile and five hundred ducats
fine.[86] It is to the credit of the Valladolid tribunal that, in 1624,
it showed itself more lenient and suspended six cases in which torture
proved fruitless, inflicting no punishment except six years of exile on
María Pérez, who was charged with false-witness.[87]
Perhaps the frequency with which torture was overcome may be partially
explained by bribery of the executioner. This was rendered difficult by
the secrecy surrounding all the operations of the tribunals, yet it was
possible, and the kindred of one who was arrested would naturally seek
to propitiate the minister of justice in case the prisoner should fall
into his hands. At a Valencia auto de fe, in 1594, there appeared
ninety-six Morisco penitents of whom fifty-three had been tortured
without extracting confessions.[88] It may possibly be only a
coincidence that, in 1604, Luis de Jesus, the torturer of the tribunal
was prosecuted for receiving money from Moriscos, but we may readily
imagine that communities, living in perpetual dread of the Inquisition,
might tax themselves to subsidize the executioner regularly.[89] A
similar case occurs in the Córdova auto of June 13, 1723, in which
appeared the executioner, Carlos Felipe, whose offence is discreetly
described as fautorship of heretics and unfaithfulness in their favor,
in the discharge of his office.[90]
* * * * *
[Sidenote: _FREQUENCY_]
It is a little remarkable that, although the use of torture was so
frequent and must have been generally known, there appears to have been
a shrinking from admitting it in the sentences publicly read in the
autos de fe, which habitually recited the details of the
trials--possibly attributable, in part at least, to a desire to preserve
secrecy, although it is particularly marked in the early period when
secrecy had not become so rigid as it was subsequently. Indeed, in the
sentence of Juan González Daza, who confessed under torture in 1484, at
Ciudad Real, it is mendaciously asserted that he pertinaciously denied
until he learned that his accomplice, Fernando de Theba, had confessed,
when he did so freely.[91] This continued as a rule, though
occasionally there is less reticence. In one sentence I have found it
alluded to--that of Mari Gómez, at Toledo, in 1551.[92] Sometimes there
is a veiled allusion to it, as though the inquisitors could not conceal
it wholly, but felt a certain shame in admitting it openly. Thus in the
sentence of Elvira del Campo (see p. 24), which gives a very detailed
account of the incidents of the trial, it is stated that, on using "mas
diligencias," with her she admitted the charges, and in the sentence of
Doctor Zapata, in 1725, "cierta diligencia" is alluded to as having been
employed.[93]
* * * * *
It would of course be impossible to compile statistics of the
torture-chamber, or to form a reasonably accurate estimate of the number
of cases in which it was employed during the career of the Inquisition.
Some fragmentary data, however, can be had, as in the record of the
Toledo tribunal between 1575 and 1610. During this period it tried four
hundred and eleven persons for heretical offences admitting of the use
of torture, and in these it was used once on one hundred and nine, and
twice on eight, besides two cases in which it had to be stopped on
account of the fainting of the patient, and seven in which confession
was obtained before it commenced. There were also five cases in which
the accused was placed in _conspectu tormentorum_.[94] In all, we may
say that here its agency was invoked in about thirty-two per cent. of
heretical prosecutions. This is probably less than the average. In a
number of cases tried by the tribunal of Lima between 1635 and 1639,
nearly all the accused appear to have been tortured, while the report of
the tribunal of Valladolid for 1624 shows that of eleven cases of
Judaism and one of Protestantism, eleven were tortured and, in 1655,
every case of Judaism, nine in number, was subjected to torture.[95]
After all, numbers, however they may impress the imagination, are not
supremely important. They are simply a measure of the greater or less
activity of the tribunals and not of the principles involved. Whenever
there was a doubt to solve, whether as to the sufficiency of the
evidence, the intention of the accused, the completeness with which he
had denounced his associates, or other inscrutable matter, recourse to
torture was a thing of course. In not a few cases, indeed, there seems
to have been an almost infantile confidence in its power as a universal
solvent. About 1710, Fernando Castellon, on trial at Valencia for
Judaism, claimed not to be baptized and was promptly tortured to find
out, but without success.[96] In 1579 the Toledo tribunal had to deal
with Anton Moreno, an aged peasant, accused of entertaining views too
liberal as to salvation; torture seemed the only means of definition
and, between the turns of the garrote, he was made to express his
opinions as to the saving effects of death-bed repentance and the
viaticum on a sinner who had been duly baptized with the water of the
Holy Ghost. There was ghastly ludicrousness in the attempt, under such
persuasion, to ascertain the beliefs of an untutored old man, on these
subtle questions of scholastic theology, ending with the result that he
was adjudged to be worthy only of abjuration _de levi_, with a reprimand
and hearing of a mass in the audience-chamber.[97]
[Sidenote: _FEES_]
As the activity of the Inquisition diminished, in the latter half of the
eighteenth century, the use of torture naturally decreased but, until,
the suppression in 1813, the formal demand for it was preserved in the
accusation presented by the fiscal. One of the early acts of Fernando
VII, on his restoration in 1814, was the issue of a cédula, July 25th,
addressed to all officers of justice, reciting that, in 1798, when the
Royal Council learned that, in the courts of Madrid, the accused were
subjected to the severest pressure to extort confessions, it
investigated the matter and found that thumb-screws and other methods
more or less rigorous were employed, and that this was without authority
of law: consequently on February 5, 1803, the discontinuance of these
was ordered, except fetters to the feet, and at the same time inquiries
made of all courts in the kingdom showed that various kinds of
compulsion were used whereby the innocent were sometimes compelled to
convict themselves falsely. In view of all of this Fernando now ordered
that in future no judge should use any kind of pressure or torment to
obtain confession from the accused or testimony from witnesses, all
usages to the contrary being abolished.[98] This can scarce have
applied to the Inquisition but, under the Restoration, it had little to
do with actual heresy and, before it was thoroughly reorganized, all
doubts were removed by Pius VII. Llorente tells us that the _Gazette de
France_ of April 14, 1816, contained a letter from Rome of March 31st,
stating that the pope had forbidden the use of torture in all tribunals
of the Inquisition, and had ordered that this be communicated to the
ambassadors of France and Portugal.[99] I see no reason for doubting
this, although no such brief appears in the Bullarium of Pius VII, and
we may assume that at last the Spanish Holy Office closed its career
relieved of this disgrace.
* * * * *
According to an _arancel_, or fee-list, of 1553, the executioner was
entitled to one real for administering torture, or to half a real if the
infliction was only threatened. In the lay courts the sufferer was
obliged to pay his tormentor, for there is a provision that, if he is
poor, the executioner is to receive nothing and is not allowed to take
his garments in lieu of the money.[100] In the Inquisition where, for
offences justifying torture, arrest was accompanied with sequestration,
the tribunal necessarily took upon itself the payment and, as we have
seen, in 1681, the fee had increased to four ducats. In cases which did
not end with confiscation, the outlay was undoubtedly included among the
costs of the trial charged against the sequestrated estate. In the Roman
Inquisition, where torture was used so much more indiscriminately, a
decision of the Congregation, in 1614, relieved the accused from payment
of the fee.[101]