THE JURISPRUDENCE OF THE HOLY OFFICE--THE FIRST “INSTRUCTIONS” OF
TORQUEMADA
The first manual for the use of inquisitors was probably written
somewhere about 1320. It was the work of the Dominican friar Bernard
Gui--“Practica Inquisitionis Heretice Pravitatis--Bernardo Guidonis,
Ordinis Fratrum Predicatorum”--and it summarised the experience
gathered during a hundred years by the inquisitors of Southern France.
It is divided into five parts. The first three are directly concerned
with procedure, and the formulæ are given for every occasion--citation,
arrest, pardon, commutation, and sentence--with the fullest particulars
for the guidance of inquisitors. The fourth part treats of the
powers vested in the tribunal of the Inquisition, and cites the
authorities--_i.e._ the decrees of pontiffs and of councils. The fifth
part surveys and defines the various heretical sects of Gui’s day,
gives particulars of the doctrines, rites, and ceremonies by which each
one may be known, and lays down methods by which heretical guile may be
circumvented in examination.
The work was used by French inquisitors in general and those of
Toulouse in particular, and it is more than probable that it inspired
Nicolaus Eymeric to compile his voluminous “Directorium Inquisitorum”
towards the middle of the fourteenth century.
Nicolaus Eymeric was Grand Inquisitor of Aragon, and he prepared his
directory, or manual of procedure, as a guide for his confrères in the
business of prosecuting those guilty of heretical pravity.
The work circulated freely in its manuscript form, and it was one
of the first to be printed in Barcelona upon the introduction of
the printing-press, so that in Torquemada’s day copies were widely
diffused, and were in the hands of all inquisitors in the world.
The bulk of the “Directorium” is little more than a compilation. It is
divided into three parts. The first lays down the chief Articles of the
Christian Faith; the second is a collection of the decretals, bulls,
and briefs of the popes upon the subject of heretics and heresies,
and the decision of the various councils held to determine matters
connected with heretics and their abettors, sorcerers, excommunicates,
Jews and infidels; the third part, which is Eymeric’s own contribution
to the subject, deals with the manner in which trials should be
conducted, and gives a detailed list of the offences that come under
the jurisdiction of the Holy Office.
It may be well before proceeding further to give a résumé of the
grounds upon which the Inquisition instituted proceedings, as set forth
in the “Directorium.”
* * * * *
All heretics in general are subject to the animadversions of the Holy
Office; but there are, in addition, certain offenders who, whilst not
exactly guilty of heresy, nevertheless render themselves justiciable by
the Inquisition. These are:
BLASPHEMERS who in blaspheming say that which is contrary to the
Christian Faith. Thus, he who says, “The season is so bad that God
Himself could not give us good weather,” sins upon a matter of faith.
SORCERERS AND DIVINERS, when in their sorceries they perform that
which is in the nature of heresy--such as re-baptizing infants,
burning incense to a skull, etc. But if they confine their sorceries
to foretelling the future by chiromancy or palmistry, by drawing the
short straw, or consulting the astrolabe, they are guilty of simple
sorcery, and it is for the secular courts to prosecute them.
Amongst the latter are to be placed those who administer love-philtres
to women.
* * * * *
DEVIL-WORSHIPPERS: Those who invoke devils. These are to be divided
into three classes:
(_a_) Those who worship the devil, sacrificing to him,
prostrating themselves, singing prayers and fasting, burning
incense or lighting candles in his honour.
(_b_) Those who confine themselves to offering a _Dulie_ or
_Hyperdulie_ cult to Satan, introducing the names of devils
into the litanies.
(_c_) Those who invoke the devil by tracing magic figures,
placing an infant in a circle, using a sword, a bed, or a
mirror, etc.
In general it is easy to recognize those who have dealings with devils
on account of their ferocious aspect and terrible air.
The invocation in any of the three manners cited is always a heresy.
But if the devil should only be asked to do things that are of his
office--such as to tempt a woman to the sin of luxury--provided that
this is done without adoration or prayer, but in terms of command,
there are authors who hold that in such cases the person so proceeding
is not guilty of heresy.
Amongst those who invoke devils are astrologers and alchymists, who
when they do not succeed in making the discoveries they seek never fail
to have recourse to the devil, sacrificing to him and invoking him
expressly or tacitly.
JEWS AND INFIDELS: The first when they sin against their religion
in any of the articles of faith that are the same with them as with
us--_i.e._ that are common alike to Jew and to Christian--or when they
attack dogmas that are, similarly, common to both creeds.
As for infidels, the Church and the Pope, and consequently the
Inquisition, may punish them when they sin against the laws of
nature--the only laws they know.
Jews and infidels who attempt to pervert Christians are also regarded
as abettors or _fautores_.
In spite of the prohibition to succour a heretic, a man would not be
regarded as an abettor who gave food to a heretic dying of hunger,
since it is possible that if spared the latter might yet come to be
converted.
EXCOMMUNICATES who remain in excommunication during a whole year, by
which are to be understood not merely those who are excommunicate as
heretics, or abettors of heretics, but excommunicate upon any grounds
whatsoever. In fact, the indifference to excommunication renders them
suspect of heresy.
APOSTATES.--Apostate Christians who become Jews or Mohammedans (these
religions not being heresies), even though they should have apostatized
through fear of death. The fear of torture or death not being one that
can touch a person who is firm in the Faith, no apostasy is to be
excused upon such grounds.[84]
* * * * *
With the “Directorium” of Eymeric before him, Torquemada set to work
to draw up the first articles of his famous code. Additions were to
be made to it later, as the need for such additions came to be shown
by experience; but no subsequent addition was of the importance of
these original twenty-eight articles. They may be said to have given
the jurisprudence of the Spanish Inquisition a settled form, which
continued practically unchanged for over three hundred years after
Torquemada’s death.
A survey of these articles and of the passages from Eymeric that have
a bearing upon them, together with some of the annotations of the
scholiast Francesco Pegna,[85] should serve to convey some notion of
the jurisprudence of the Holy Office and of the extraordinary spirit
that inspired and governed it--a spirit at once crafty and stupid,
subtle and obvious, saintly and diabolical, consistent in nothing--not
even in cruelty, for in its warped and dreadful way it accounted itself
merciful, and not only represented but believed that its aims were
charitable. It practised its abominations of cruelty out of love for
the human race, to save the human race from eternal damnation; and
whilst it wept on the one hand over the wretched heretic it flung to
the flames, it exulted on the other in the thought that by burning
one who was smitten with the pestilence of heresy it saved perhaps a
hundred from infection and from purging that infection in an eternity
of hell-fire.
They are rash who see hypocrisy in the priestly code that is to follow.
Hypocrites there may have been, there must have been, and many; such a
system was a very hotbed of hypocrisy. Yet the system itself was not
hypocritical. It was sincere, dreadfully, tragically, ardently sincere,
with the most hopeless, intolerable, and stupid of all sincerity--the
sincerity of fanaticism, which destroys all sense of proportion, and
distorts man’s intellectual vision until with an easy conscience he
makes of guile and craft and falsehood the principles that shall enable
him to do what he conceives to be his duty by his fellow-man.
The doctrine of exclusive salvation was the source of all this evil.
But that doctrine was firmly and sincerely held. Torquemada or any
other inquisitor might have uttered the words which an inspired poet
has caused to fall from the lips of Philip II.:
“The blood and sweat of heretics at the stake
Is God’s best dew upon the barren field.”[86]
And he would have uttered them with a calm and firm conviction, assured
that he did no more than proclaim an obvious truth which might serve
him as a guide to do his duty by man and God. For all that he did he
could find a commandment in the Scriptures. Was burning the proper
death for heretics? He answered the question out of the very mouth of
Christ, as you shall see. Should a heretic’s property be confiscated?
Eymeric and Paramo point to the expulsion of Adam and Eve from Eden as
a consequence of their disobedience--the first of all heresies--and ask
you what was that but confiscation. Is it proper to impose a garment of
shame upon those convicted of lesser heresies, or upon penitents who
are reconciled? Paramo will answer you that Adam and Eve wore skins
after their fall, and implies that this is a proper precedent for the
infamous _sanbenito_.
And so on: Moses, David, John the Baptist, and the gentle Saviour
Himself are made to afford reason for this course and for that, as the
need arises, and each reason is more grotesque than the other, until
you are stunned by the blows of these clumsy arguments. You cease to
wonder that the translation of the Bible was forbidden, that its study
was inhibited. If those who were learned in theology could interpret it
so extravagantly, what might not the unlearned achieve?
But let us pass on to the consideration of Torquemada’s code.
ARTICLE I
Whenever inquisitors are appointed to a diocese, city, village,
or other place which hitherto has had no inquisitors, they
shall--after having presented the warrants by which they are
empowered to the prelate of the principal church and to the
governor of the district--summon by proclamation all the people
and convoke the clergy. They shall appoint a Sunday or holiday
upon which all are to assemble in the cathedral or principal
church to hear a sermon of the Faith.
They shall contrive that this sermon is delivered by a good
preacher or by one of the actual inquisitors, as they deem
best. Its aim shall be to expound the capacity in which they
are there, their powers, and their intentions.
COPILACION
DE LAS INSTRVCIONES DEL
Officio de la sancta Inquisicion, hechas por
el muy Reuerendo Señor Fray Thomas de Torquemada, Príor del
Monasterio de sancta Cruz de Segouia, primero Inquisidor
general de los Reynos y Señorios de España.
E POR LOS OTROS REVERENDISSIMOS SENO-_res Inquisidores generales
que despues succedieron, cerca de la orden que se ha de tener en el
exercicio del Sancto Officio. Donde van puestas successiuamente por su
parte todas las Instructiones que tocan a los Inquisidores. E a otra
parte, las que tocan a cada vno delos Officiales y Ministros del sancto
Officio: las quales se copilaron en la manera que dicha es, por mandado
del Illustrissimo y Reuerendissimo señor don Alonso Manrrique, Cardenal
de los doze Apostoles, Arçobispo de Seuilla Inquisidor General de
España.:._
[Illustration:
EN MADRID,
En casa de Alonso Gomez, Impressor de su Magestad. Año. 1576.
TITLE-PAGE OF THE FIRST PRINTED EDITION OF THE “INSTRUCTIONS” OF
TORQUEMADA.
_Photo by Donald Macbeth_
Upon the conclusion of this sermon the inquisitors shall order all
faithful Christians to come forward and make oath upon the Cross and
the Gospels to favour the Holy Inquisition and its ministers, and to
offer them no impediment directly or indirectly in the prosecution of
their mission.
This oath shall be specially imposed upon the governors or other
justiciaries of the place, and it shall be witnessed by the notaries of
the inquisitors.
ARTICLE II
After the conclusion of the said sermon the inquisitors shall
order to be read and published an admonition with censures
against those who are rebellious or who contest the power of
the Holy Office.
ARTICLE III
After the conclusion of the said sermon the inquisitors shall
publish an edict granting a term of grace, of thirty or forty
days--as they may deem proper--so that all persons who have
fallen into the sin of heresy or apostasy, who have observed
Jewish rites or any other that are contrary to the Christian
Religion, may come forward to confess their sins, assured that
if they do so with a sincere penitence, divulging all that is
known to them or that they remember, not only of their own sins
but also of the sins of others, they shall be received with
charity.
They shall be subjected to a salutary penance, but they shall
not suffer death, imprisonment, or confiscation of their
property, nor shall they in any way be mulcted unless the
inquisitors, in consideration of the quality of the penitents
and of the sins they confess, should think well to impose some
pecuniary penance upon them.
Concerning this grace and mercy that their Highnesses consider
well to accord to those who are reconciled, the Sovereigns
order the delivery of letters-patent, bearing the royal seal,
whose tenor shall be included in the published edict.
It is sufficiently plain, from the terms of this article, that the
edict of grace was published by royal command, and that it was not,
as Garcia Rodrigo represents it, a merciful dispensation spontaneously
emanating from the Holy Office.
ARTICLE IV
Self-delators shall present their confessions in writing to the
inquisitors and their notaries with two or three witnesses who
shall be officers of the Inquisition or other upright persons.
Upon receipt of this confession by the inquisitors, let the
oath be administered to the penitents in legal form, not only
concerning the matters confessed but concerning others that
may be known to them and upon which they may be questioned.
Let them be asked how long it is since they Judaized or
otherwise sinned against the Faith, and how long it is since
they abandoned their false beliefs, repented, and ceased to
observe those ceremonies. Next let them be examined upon the
circumstances of the matters confessed, that the inquisitors
may satisfy themselves that these confessions are true.
Especially let them be questioned as to what prayers they
recite, where they recite them, and with whom they have been in
the habit of assembling to hear the law of Moses preached.
ARTICLE V
Self-delators who seek reconciliation to Holy Mother Church
shall be required publicly to abjure their errors, and penance
shall publicly be imposed upon them at the discretion of the
inquisitors, using mercy and kindness as far as it is possible
for them to do so with an easy conscience.
The inquisitors shall admit none to secret penance and
recantation unless his sin shall have been so secret that none
else knows or could know of it save his confessor; such a one
all inquisitors may reconcile and absolve in secret.
Llorente says that the admission to secret penance was a source of much
gold to the Roman Curia, as thousands appealed to the Pope offering a
secret confession and firm purpose of amendment if secretly absolved,
for which a papal brief was necessary.
A word must here be said on the score of ABJURATION. It was the amende
provided by Eymeric[87] for those who by their speech or conduct
should have fallen into suspicion of heresy; those, for instance, who
abstained from the sacraments imposed by Mother Church being liable to
this suspicion.
There were three degrees of suspicion into which a man might fall:
light, vehement, and violent. The abjuration required was practically
the same in all three cases, but the punishment imposed upon the
abjurer varied according to the degree. This abjuration must be
publicly made in church before the assembled people, the suspects
being placed--like all penitents or convicts of heresy--upon a raised
platform in full view of the assembled faithful. The inquisitor would
read out the Articles of the Christian Faith, and a list of the
principal errors against it, laying particular stress upon those errors
of which the penitents were suspected, and which they were required to
abjure with both hands upon the Gospels, and according to the formula
laid down by Eymeric.
Those who are suspected lightly (_leviter_) are admonished that should
they again fall into error they will be abandoned to the secular arm
for punishment. With that admonition, and the imposition of a penance
which may take the form of fasts, prayers, or pilgrimages, they are
dismissed.
Those suspected vehemently (_vehementer_) are similarly admonished,
but in addition they may be sent to prison for a time, whereafter they
must undergo a heavy penance, such as standing on certain days at the
door of the principal church or near the altar during the celebration
of Mass holding a candle--but not wearing a _sanbenito_, as, properly
speaking, they are not heretics--or they may be sent upon a pilgrimage.
He who is violently suspected (_violenter_) shall be absolved of the
excommunication incurred, but as his crime may not go unpunished, and
to the end that he may suffer less severely in the next world, he is
sentenced to a term of imprisonment, whereafter he shall be condemned
to stand at the church door during the great feasts of the year wearing
the penitential scapulary known as the _sanbenito_, that all may be
made aware of his infamy.
After passing sentence, the inquisitor shall admonish the penitent in
these terms:
“My dear Son, be patient and do not despair; if we observe in you
the signs of contrition we shall soften your penance; but beware of
departing from what we have prescribed for you; should you do so you
shall be punished as an impenitent heretic.”
The punishment for the impenitent was, of course, the fire.
The inquisitor shall conclude the ceremony by granting an indulgence of
forty days to all who have attended it and an indulgence of three years
to those who shall have taken part in it.
The sentence of prison, with its bread-and-water diet, might be
relaxed; but never that of the _sanbenito_, which is considered by
Eymeric--and inquisitors generally--as the most salutary of penances
for him that undergoes it and the most edifying to the public generally.
The self-delators admitted by Torquemada to abjuration were treated as
suspects of the first degree--_leviter_.
ARTICLE VI
Inasmuch as heretics and apostates (although they return to
the Catholic Faith and become reconciled) are infamous at law,
and inasmuch as they must perform their penances with humility
and sorrow for having lapsed into error, the inquisitors shall
order them not to hold any public office or ecclesiastical
benefice, and they shall not be lawyers or brokers,
apothecaries, surgeons or physicians, nor shall they wear gold
or silver, coral, pearls, precious stones or other ornaments,
nor dress in silk or camlett, nor go on horseback nor carry
weapons all their lives, under pain of being deemed relapsed
(_relapsos_) into heresy, as must all be considered who after
reconciliation do not carry out the penances imposed upon them.
This decree was no more than the revival of the enactment made a
century and a half earlier by Alfonso XI in the code known as the
Partidas, which had mercifully been allowed to fall into desuetude. It
was, Llorente tells us, a considerable source of wealth to the Roman
Curia. Frequent appeals for “rehabilitation” were made in consequence,
and accorded under an apostolic brief whose heavy charges the
appellants were required to defray.
Torquemada mercifully stops short of ordering the self-delators to wear
the _sanbenito_. Even so, however, by decreeing that they must wear
no garments of silk or wool, and therefore none but the very plainest
raiment, unadorned by any precious metal or jewel--not to mention the
prohibition to use weapons or go on horseback--he imposed upon them a
garb that was only some degrees removed from the penitential sack and
served the same purpose of marking them out for infamy.
The wearing of the _sanbenito_, too, was a custom that had fallen
somewhat into desuetude. But the ascetic Torquemada was not the man
to allow a form of penance accounted so very salutary to continue
neglected. He revived and extended the use of it, adding innovations
of his own, so that it came to be imposed not only upon condemned
heretics, but upon the reconciled--other than self-delators--and upon
suspects, who were required to wear it during the abjuration ceremony.
This odious garment, its origin and history, shall presently be more
fully considered.
ARTICLE VII
As the crime of heresy is a very heinous one, it is desired
that the reconciled may realize by the penances imposed
upon them how gravely they have offended and sinned against
Our Lord Jesus Christ. Yet, as it is our aim to treat them
very mercifully and kindly, pardoning them from the pain of
fire and perpetual imprisonment, and leaving them all their
property should they, as has been said, come to confess their
errors within the appointed time of grace, the inquisitors
shall, in addition to the penances imposed upon the said
reconciled, order them to bestow as alms a certain portion of
their property, according to the position of the penitent and
the gravity of the crimes confessed. These pecuniary penances
shall be applied for the Holy War which the most serene
Sovereigns are making upon the Moors of Granada, enemies of
our Holy Catholic Faith, and to other pious works that may
be undertaken. For just as the said heretics and apostates
have offended against Our Lord and His Holy Faith, so, after
re-incorporation in the Church, it is just that they should
bear pecuniary penances for the defence of the Holy Faith.
These pecuniary penances shall be at the discretion of the
inquisitors; but they shall be guided by the tariff given
them by the Reverend Father Prior of Holy Cross (_i.e._ by
Torquemada).
It was no inconsiderable proportion of their property that was required
of them, as may be seen from the penance of “alms” for the war against
Granada imposed upon those who were reconciled in Toledo two years
later; one-fifth of their property being demanded.[88]
ARTICLE VIII
Should any person guilty of the said crime of heresy fail
to present himself within the appointed period of grace,
but come forward voluntarily after its expiry and make his
confession in due form before having been arrested or cited
by the inquisitors, or before the inquisitors shall have
received testimony against him, such person shall be received
to abjuration and reconciliation in the same manner as those
who presented themselves during the term of the said edict,
and he shall be submitted to penances at the discretion of
the inquisitors. But such penances shall not be pecuniary
because his property is confiscate [_so that his admission to
abjuration is not quite upon the same terms_].
But if at the time of his coming to confess and seek
reconciliation, the inquisitors should already be informed by
witnesses of his heresy or apostasy, or should already have
cited him to appear before the Court to answer the charge,
in such a case the inquisitor shall receive the penitent to
reconciliation--if he entirely confesses his own errors and
what he knows of the errors of others--and shall impose upon
him heavier penances than upon the former, even up to perpetual
imprisonment should the case demand it.
This is merely one of those quibbles that permeate this jurisprudence.
The article in this last respect is so framed as to make it appear
that under such circumstances the inquisitors would be acting more
mercifully than against an accused heretic; but the latitude of
punishment is such that they need display no such mercy--perpetual
imprisonment being the punishment prescribed for any heretic (who is
not “relapsed”) seeking reconciliation.
But no persons who shall come to confess after expiry
of the period of grace shall be subjected to pecuniary
penances--unless their Highnesses should mercifully condescend
to remit all or portion of the confiscation incurred by those
so reconciled.
This last clause seems rather in the nature of a provision against any
merciful weakness on the Sovereigns’ part.
ARTICLE IX
If any children of heretics having fallen into the sin of
heresy by indoctrination of their parents, and being under
twenty years of age, should come to seek reconciliation and
to confess the errors they know of themselves, their parents
and any other persons, even though they should come after the
expiry of the term of grace, the inquisitors shall receive them
kindly, imposing penances lighter than upon others in like
case, and they shall contrive that these children be tutored in
the Faith and the Sacraments of Holy Mother Church, as they are
to be excused upon the grounds of age and education.
They are not, however, to be excused to the extent of enjoying any of
their parents’ property. That is confiscate by virtue of the parents’
heresy; and by virtue of that same heresy on the part of their parents
these children and their own children must remain under the ban of
infamy, inhibited from wearing gold or silver, etc., and from holding
any office under the crown or any ecclesiastical benefice. It seems
almost ironical to talk of imposing light penances upon wretches who
are automatically subject to such penalties as these. But by that
“light penance” Llorente conceives would be meant their wearing a
_sanbenito_ for a couple of years, appearing in it at Mass and being
paraded in it in processions.
ARTICLE X
Persons guilty of heresy and apostasy, by the fact of their
having fallen into these sins, incur the loss of all their
property and the administration of it, counting from the
day when first they offended, and their said property is
confiscate to their Highnesses’ treasury. But in the matter
of ecclesiastical pains in the case of those reconciled, the
inquisitors in pronouncing upon them shall declare them to be
heretics, apostates, or observers of the rites and ceremonies
of the Jews; but that since they seek conversion with a pure
heart and true faith, and they are ready to bear the penances
that may be imposed, they shall be absolved and reconciled to
Holy Mother Church.
The object of this article is really to make the act of confiscation
retrospective where necessary, so as to circumvent any who should
attempt, by alienation of his property, to avoid its confiscation.
Since the confiscation was incurred upon the date of the first offence
against the Faith, the inquisitors were to trace any property that
might subsequently have been disposed of by the delinquent, and even
should it have gone to the paying of debts or the endowment of a
daughter married to one who was an old and “clean” Christian, the Holy
Office must seize and confiscate it to the Royal Treasury.
ARTICLE XI
If any heretic or apostate who shall have been arrested upon
information laid against him should say that he desires
reconciliation and confess all his faults, what Jewish
ceremonies he may have observed, and what is known to him
of the faults of others, entirely and without reservations,
the inquisitors shall admit him to reconciliation subject to
perpetual imprisonment as by law prescribed. But should the
inquisitors, in conjunction with the diocesan ordinary, in
view of the contrition of the offender and the quality of his
confession, think well to commute this penance to another
lighter one, they shall have faculty so to do.
It seems that this should take place chiefly if the heretic at
the first sitting of the court, or upon his first appearance
before it, without awaiting the declaration of his offences,
should announce his desire to confess and abjure; and such
confession should be made before there is any publication of
witnesses or of the matters urged by them against him.
ARTICLE XII
Should the prosecution of an accused have been conducted to the
point of the publication of witnesses and their depositions,
but should he then confess his faults and beg to be admitted
to reconciliation, desiring formally to abjure his errors,
the inquisitors shall receive him to the said reconciliation
subject to perpetual imprisonment, to which they shall sentence
him--save if in view of his contrition and other attendant
circumstances the inquisitors should have cause to consider
that the reconciliation of such a heretic is simulated; in such
case they must declare him an impenitent heretic and abandon
him to the secular arm: all of which is left to the conscience
of the inquisitors.
“Abandonment to the secular arm” is, as shall presently be considered,
the ecclesiastical equivalent to a sentence of death by fire.
The term “publication of witnesses” must not be accepted literally.
What it really meant will become clear upon reading Article XVI,
which was specially framed by Torquemada to modify and limit this
time-honoured custom of civil and ecclesiastical courts.
ARTICLE XIII
If any of those who are reconciled during the period of grace
or after its expiry should fail to confess all their own sins
and all that they know of the sins of others, especially
in grave cases, and should such omission arise not from
forgetfulness but from malice, as may afterwards be proved
by witnesses, since it is clear that the said reconciled
have perjured themselves, and it must be presumed that their
reconciliation was simulated, although they may have been
absolved let them be proceeded against as impenitent heretics
as soon as the said fiction and perjury are discovered.
Similarly if any person reconciled at the time of the edict of
grace or afterwards, shall boast himself in public in such a
manner that this can be proved, saying that he did not commit
the sins to which he confessed, he must be deemed impenitent
and a simulated convert, and the inquisitors shall proceed
against him as if he were not reconciled.
ARTICLE XIV
If any, upon being denounced and convicted of the sin of
heresy, shall deny and persist in his denial until sentence
is passed, and the said crime shall have been proved against
him, although the accused should confess the Catholic Faith
and assert that he has always been and is a Christian, the
inquisitors must declare him a heretic and so sentence him, for
juridically the crime is proved, and by refusing to confess his
error the convict does not permit the Church to absolve him and
use him mercifully.
But in such cases the inquisitors should proceed with
great care in their examination of the witnesses, closely
cross-questioning them, gathering information on the score of
their characters, and ascertaining whether there exist motives
why they should depone out of hatred or ill-will towards the
prisoner.
ARTICLE XV
If the said crime of heresy or apostasy is half-proven
(_semiplenamente provado_) the inquisitors may deliberate upon
putting the accused to the torture, and if under torture he
should confess his sin, he must ratify his confession on one
of the following three days. If he does so ratify he shall be
punished as convicted of heresy; if he does not ratify, but
revokes his confession as the crime is neither fully proved
nor yet disproved, the inquisitors must order, on account of
the infamy and presumption of guilt of the accused, that he
should publicly abjure his error; or the inquisitors may repeat
the torture.
There is nothing in this article that may be considered as a departure
from or an enlargement upon any of the rules laid down by Eymeric in
his “Directorium,” as we shall see when we come to deal with this
gruesome subject of torture.
It is urged by apologists that, when all is said, the torture to which
the inquisitors had recourse, and, similarly, the punishment of death
by fire, were not peculiarly ecclesiastical institutions; that they
were the ordinary civil methods of dealing with offenders, and that in
adopting them the Church had simply conformed, as was her custom, with
that which was by law prescribed.
It is quite true that originally these were the methods by which the
secular tribunals proceeded against those who sinned against the Faith.
But it must also be borne in mind that if the civil authorities so
proceeded they implicitly obeyed the bull “ad extirpanda” of Sixtus IV,
which imposed this duty upon them under pain of excommunication.
Owing to the inconvenience that attended this procedure in so far as
torture and questions upon matters of Faith were concerned, it was
later accounted desirable that the inquisitors themselves should take
charge of it. They were enjoined, however, to see to it that there
should be no shedding of blood or loss of life, since it was against
the Christian maxims that a priest should be guilty of such things. So
that when by misadventure it happened that blood was shed or a patient
died under the hands of the torturers, the inquisitor conducting the
examination became guilty of an irregularity. For this he must seek
absolution at the hands of a brother cleric; and the inquisitors were
informed--to make matters easier for them and to spare them anxieties
in this matter--that they had the right to absolve one another under
such circumstances.
But even if we fully admit that the use of torture--and similarly of
fire--had been secular institutions of which the Church had simply
availed herself as the only methods that commended themselves in such
an age, it must still be held against the inquisitors that these
methods were by no means tempered or softened in their priestly hands.
ARTICLE XVI
It being held that the publication of the names of witnesses
who depone upon the crime of heresy might result in great
harm and danger to the persons and property of the said
witnesses--since it is known that many have been wounded and
killed by heretics--it is resolved that the accused shall not
be supplied with a copy of the depositions against him, but
that he shall be informed of what is declared in them, whilst
such circumstances as might lead to the identification of the
deponents shall be withheld.
But the inquisitors must, when proof has been obtained from
the examination of the witnesses, publish these depositions,
withholding always the names and such circumstances as might
enable the accused to learn the identity of the witnesses; and
the inquisitors may give the accused a copy of the publication
in such form [_i.e._ truncated] if he requires it.
If the accused should demand the services of an advocate, he
shall be supplied. The advocate must make formal oath that he
will faithfully assist the accused, but that if at any stage
of the pleadings he shall realize that justice is not on his
side, he shall at once cease to assist the delinquent and shall
inform the inquisitors of the circumstance.
The accused shall pay out of his own property, if he have any,
the services of the advocate; if he have no property, then the
advocate shall be paid out of other confiscations, such being
the pleasure of their Highnesses.
It is extremely doubtful if a more flagrant departure from all the laws
of equity would be possible than that which is embodied in Torquemada’s
enactment on the subject of witnesses.
The notion of an accused hearing nothing of what is deposed against
him, of his not even being informed of the full extent of such
depositions nor yet confronted with his accusers, is beyond a doubt one
of the most monstrously unjust features of this tribunal. And by taking
the fullest advantage of that enactment and reducing the proceedings to
a secrecy such as was never known in any court, the inquisitors were
able to inspire a terror which was even greater than that occasioned by
the fires they fed with human fuel at their frequent Autos.
Torquemada based this enactment upon the caution laid down by Eymeric
on the score of divulging the names of witnesses. But Eymeric went
no further than to say that these names should be suppressed where a
possibility of danger to the delators lay in their being divulged. The
accused, however, might have the full record of the proceedings read to
him, and he might infer for himself who were his accusers. There was no
question in Eymeric of any truncations.
Torquemada’s aim is perfectly clear. It was not based, as is said
in the article, upon concern for any danger that the delators might
incur. For, after all, it shall be made plain before we conclude the
survey of inquisitorial jurisprudence, that the wounding or even the
death of those witnesses would be regarded (professedly, at least) as
an enviable thing; they would be suffering for the Faith, and thus
qualifying for the immortal crown of martyrdom. Rather was Torquemada’s
object to remove all fear that might trammel delators and stifle
delations. The delator must be protected solely to the end that other
delators might come forward with confidence to inform against secret
heretics and apostates, so that the activities of the Holy Office
should suffer no curtailment.
Trasmiera, a later inquisitor, in the course of an eulogium of
secrecy, speaks of it as “the pole upon which the government of the
Inquisition is balanced, calling for the veneration of the faithful;
it facilitates the delations of witnesses, and it is the support and
foundation of this tribunal; once deprived of it, the architecture of
the edifice must undoubtedly give way.”[89]
The clause relating to advocates is founded upon the ancient
ecclesiastical law which forbade an advocate to plead for heretics. His
being enlisted under the present clause would clearly serve to increase
the peril of the accused.
ARTICLE XVII
The inquisitors shall, themselves, examine the witnesses, and
not leave such examinations to their notaries or others, unless
a witness should be ill or unable to come before the inquisitor
and the inquisitor similarly unable to go to the witness, in
which case he may send the ordinary ecclesiastical judge of the
district with another upright person and a notary to take the
depositions.
ARTICLE XVIII
When any person is put to the torture the inquisitors and
the ordinary should be present--or, at least, some of them.
But when this is for any reason impossible, then the person
entrusted to question should be a learned and faithful man
(_hombre entendido y fiel_).
ARTICLE XIX
The absent accused shall be cited by public edict affixed to
the door of the church of the district to which he belongs, and
after thirty days’ grace the inquisitors may proceed to try him
as contumaciously absent. If there is sufficient evidence of
his guilt, sentence may be passed upon him. Or, if evidence is
insufficient, he may be branded a suspect and commanded--as is
due of suspects--to present himself for canonical purgation.
Should he fail to do so within the time appointed, his guilt
must be presumed.
Proceedings against the absent may be taken in any of the
following three ways:
(1) In accordance with the chapter “Cum contumatia de
hereticis,” citing the accused to appear and defend himself
upon certain matters concerning the Faith and certain sins of
heresy, under pain of excommunication; if he does not respond,
he shall be denounced as a rebel, and if he persists in this
rebellion for one year he shall be declared a formal heretic.
This is the safest and least rigorous course to adopt.
(2) Should it seem to the inquisitors that a crime against any
absent can be established, let him be cited by edict to come
and prove his innocence within thirty days--or a longer period
may be conceded if such is necessary to permit him to return
from wherever he may be known to be. And he shall be cited at
every stage of the proceedings until the passing of sentence,
when, should he still be absent, let him be accused of
rebellion, and should the crime be proved he may be condemned
in his absence without further delay.
(3) If in the course of inquisitorial proceedings there is
presumption of heresy against an absent person (although the
crime is not clearly proved) the inquisitors may summon him by
edict commanding him to appear within a given time to clear
himself canonically of the said error, on the understanding
that should he fail to appear, or, appearing, should fail to
clear himself, he shall be deemed convicted and the inquisitors
shall proceed to act as by law prescribed.
The inquisitors, being learned and discriminating, will select
the course that seems most certain and is most practical under
the particular circumstances of the case.
Any person condemned as contumacious became an outlaw, whom it was
lawful for any man to kill.
CANONICAL PURGATION, which is mentioned in this article, differs
considerably from ABJURATION, and the difference must be indicated.
It is applicable only to those who are accused by the public
voice--_i.e._ who have acquired the “reputation” of heresy--without yet
having been detected in any act or speech that might cause them to be
suspected of heresy in any of the defined degrees of such suspicion.
It almost amounts to a distinction without a difference, and is an
excellent instance of the almost laboured equity in which this tribunal
indulged in matters of detail whilst flagrantly outraging equity in the
main issues.
For Canonical Purgation, says Eymeric,[90] the accused must find a
certain number of sureties or _compurgatores_, the number required
being governed by the gravity of the (alleged) offence. They must be
persons of integrity and of the same station in life as the accused,
with whom they must have been acquainted for some years. The accused
shall make oath upon the Gospels that he has never held or taught the
heresies stated, and the _compurgatores_ shall swear to their belief
that this is the truth. This Purgation must be made in all cities where
the accused has been defamed.
The accused shall be given a certain time in which to find his
_compurgatores_, and should he fail to find the number required he
shall at once be convicted and condemned as a heretic.
And Pegna adds, in his commentary upon this, that any who shall be
found guilty of heresy after having once been in this position is
to be regarded as a “relapso” and delivered to the secular arm. For
this reason he enjoins that Canonical Purgation should not lightly be
ordered, as it is so largely dependent upon the will of third parties.
Eymeric adds, further, that sometimes Canonical Purgation may be
ordered to those who are defamed by the public voice but who are not
in the hands of the inquisitors. Should they refuse to surrender, the
inquisitors shall proceed to excommunicate them, and if they persist in
their excommunication for one year they shall be deemed heretics, and
subject to the penalties entailed by such a sentence.
ARTICLE XX
If any writings or trials should bring to light the heresy of
a person deceased, let proceedings be taken against him--even
though forty years shall have elapsed since the offence--let
the fiscal accuse him before the tribunal, and if he should be
found guilty the body must be exhumed.
His children or heirs may appear to defend him; but should they
fail to appear, or, appearing, fail to establish his innocence,
sentence shall be passed upon him and his property confiscated.
It will, of course, be obvious that since no good or useful purpose
could be served by instituting proceedings against the dead, nothing
but cupidity can have inspired so barbarous a decree as this. The
avowed object of the Inquisition--and very loudly and insistently
avowed--was the uprooting of heresies to prevent their spread, and the
inquisitors maintained that it was a painful necessity thrust upon them
by their duty to God to destroy those who persisted in heresy, lest
these, by their teaching and example, should contaminate and imperil
the souls of others. Thus the Inquisition justified itself, and removed
all doubt as to the purity of its motives.
But how should this justification apply to the trial of the dead--even
though they should have been dead for over forty years?
The provision, however, was not Torquemada’s own. He followed in the
footsteps of earlier inquisitors. He found his precedent in the 120th
question propounded by Eymeric--“Confiscatio bonorum hæretici fieri
potest post ejus mortem.” In this the author of the “Directorium” lays
it down that although in civil law legal action against a criminal
ceases with his death, such is not to be the case where heresy is
concerned, on account of the enormity of the crime. (It may seem that,
had he been quite honest, he would have said, “on account of the
profits that may accrue from the prosecution.”)
Heretics, he pursues, may be proceeded against after their death, and,
if convicted, their property may be confiscated--and this within forty
years of their decease--depriving the heirs of all enjoyment of it,
even though the third generation should be in possession.
All that Torquemada did was to extend the term of procedure beyond the
forty years to which Eymeric had limited it.
And to the foregoing Eymeric adds that, should the heirs at any time
have acquired knowledge that the deceased was a heretic, they shall
be censured for having acted in bad faith and kept the matter secret!
By this he actually puts it upon men to come forward voluntarily and
accuse their dead fathers or grandfathers of heretical practices, to
the end that they themselves may be rendered destitute and infamous to
the extent of being incapacitated from holding any public office or
following any honourable profession--and this though they themselves
should be the most faithful of Catholics, untouched by the faintest
breath of suspicion!
It is beyond words a monstrous and inequitable enactment. Yet, like
all else, they can justify it. If there is one thing in which the
inquisitors were truly admirable, it is in the deftness with which they
could justify and reconcile with their conscience the most inhuman
practice. They would answer questions as to the lawfulness of this
proceeding by urging that they did it with the greatest reluctance,
but that their duty demanded it to the end that the living should
beware how they failed in fidelity to the Faith, lest punishment should
overtake them in their descendants after they themselves had passed
beyond the reach of human justice. Thus would they represent the act
as salutary and to the advantage of the Faith. And since there is
at least a scintilla of truth in this, who shall say that they did
not tranquillize their consciences and delude themselves that the
confiscations were a mere incident which nowise swayed their judgment?
That proceedings against persons deceased were by no means rare is
shown by the frequent records of corpses burnt--one of the purposes for
which they were exhumed; the other being that they must cease to defile
consecrated ground.
ARTICLE XXI
The Sovereigns desiring that inquisition be made alike in
the domains of the nobles as in the lands under the Crown,
inquisitors shall proceed to effect these, and shall require
the lords of such domains to make oath to comply with all that
the law ordains, and to lend all assistance to the inquisitors.
Should they decline to do so, they shall be proceeded against
as by law established.
ARTICLE XXII
Should heretics who are delivered to the secular arm leave
children who are minors and unmarried, the inquisitors shall
provide and ordain that they be cared for and reared by
some persons who will instruct them in our Holy Faith. The
inquisitors shall prepare a memorial of such orphans and the
circumstances of each, to the end that of the royal bounty
alms may be provided to the extent necessary, this being the
wish of the Sovereigns when the children are good Christians,
especially in the case of girls, who should receive a dower
sufficient to enable them to marry or enter a convent.
Llorente tells us that although he went through very many records of
old proceedings of the Inquisition, in no single instance did he
discover a record of any such provision in favour of the child of a
condemned heretic.[91]
Harsh as were the decrees of the Inquisition in all things, in nothing
were they so harsh as in the enactments concerning the children of
heretics. However innocent themselves of the heresy for which their
parents or grandparents might have suffered, not only must they go
destitute, but further they must be prevented from ever extricating
themselves appreciably from that condition, being inhibited--to the
second generation--from holding any office under the Crown, or any
ecclesiastical benefice, and from following any honourable or lucrative
profession. And, as if that were not in itself sufficient, they were
further condemned to wear the outward signs of infamy, to go dressed in
serge, without weapons or ornaments, and never ride on horseback, under
pain of worse befalling them. One of the inevitable results of this
barbarous decree was the extinction of many good Spanish families of
Jewish blood in the last decade of the fifteenth century.
This the inquisitors understood to be the literal application to
practical life of the gentle and merciful precepts of the sweet Christ
in Whose name they acted.
Eymeric and his commentator Pegna make clear, between them, the
inquisitorial point of view. The author of the “Directorium” tells us
that commiseration for the children of heretics who are reduced to
mendicity must not be allowed to soften this severity, since by all
laws, human and divine, it is prescribed that the children must suffer
for the sins of the fathers.[92]
The scholiast expounds at length the justice of this measure. He says
that there have been authors, such as Hostiensis, who pretend that it
lacks the equity of the ancient laws, which admitted Catholic children
to inheritance. But he assures us that they are wrong in holding such
views, that there is no injustice in the provision, and that it is
salutary, since the fear of it is calculated to influence parents and
to turn them--out of love for their offspring--from the great crime of
heresy.
To minds less dulled by bigotry it must have been clear that by this,
as, for that matter, by many other of their decrees, all that was
achieved was to put a premium upon hypocrisy.
Another consideration that escaped their notice--being, as they were,
capable of perceiving one thing only at a time--was that if this
precious measure was prescribed by all laws, human and divine, it
should have been unavoidable. Yet they themselves provided the means of
avoiding it--as we know--for the child vile enough to lay information
of his parents’ heresy. By what laws, human or divine, did they dare
to encourage such an infamy? By no law but their own--a law whose
chief aim, it is obvious at every turn, was to swell the number of
convictions.
What opinion was held of children who informed against their parents to
avert the awful fate that awaited them should their parents’ heresy be
discovered by others, is apparent in the case of the daughter of Diego
de Susan--who, very possibly, was actuated by just such motives.
ARTICLE XXIII
Should any heretic or apostate who has been reconciled within
the term of grace be relieved by their Highnesses from the
punishment of confiscation of his property, it is to be
understood that such relief applies only to that property
which by their own sin was lost to them. It does not extend to
property which the person reconciled shall have the right to
inherit from another who shall have suffered confiscation. This
to the end that a person so pardoned shall not be in better
case than a pure Catholic heir.
ARTICLE XXIV
As the King and Queen in their clemency have ordained that
the Christian slaves of heretics shall be freed, and even
when the heretic is reconciled and immune from confiscation,
this immunity shall not extend to his slaves; these shall be
manumitted in any case, to the greater honour and glory of our
Holy Faith.
ARTICLE XXV
Inquisitors and assessors and other officers of the
Inquisition, such as fiscal advocates, constables, notaries,
and ushers, must excuse themselves from receiving gifts
from any who may have or may come to have affairs with the
Inquisition, or from others on their behalf; and the Father
Prior of Holy Cross orders them not to receive any such gifts
under pain of excommunication, of being deprived of office
under the Inquisition and compelled to make restitution and
repay to twice the value of what they may have received.
Eymeric’s “Directorium” permitted the reception of gifts by
inquisitors, provided that these gifts were not too considerable, but
he enjoined inquisitors not to show too much avidity--not, it would
seem, on account of the sin that lurks in avidity, but so as not to
give scandal to the laity.[93]
ARTICLE XXVI
Inquisitors shall endeavour to work harmoniously together; the
honour of the office they hold demands this, and inconveniences
might result from discords amongst them. Should any inquisitor
be acting in the place of the diocesan ordinary, let him not
on that account presume that he enjoys pre-eminence over his
colleagues. If any difference should arise between inquisitors
and they be unable themselves to adjust it, let them keep the
matter secret until they can lay it before the Prior of Holy
Cross, who, as their superior, will decide it as he considers
best.
ARTICLE XXVII
Inquisitors shall endeavour to contrive that their officers
treat one another well and dwell in harmony and honourably.
Should any officer commit an excess, let them punish him
charitably, and should they be unable to cause an officer
to fulfil his duty, let them advise the Prior of Holy Cross
thereof, and he will at once deprive such a one of his office
and make such an appointment as may seem best for the service
of Our Lord and their Highnesses.
ARTICLE XXVIII
Should any matter arise for which provision has not been
made by this code, the inquisitors shall proceed as by
law prescribed, it being left to them to dispose as their
consciences show them to be best for the service of God and
their Highnesses.
To these twenty-eight articles Torquemada was to make further
additions--in January of the following year, in October of 1488 and
in May of 1498. We shall indicate to them, but for the moment it is
sufficient to say that--saving some of those of 1498--they are of
secondary importance, being mainly in the nature of corollaries upon
those we have dealt with, and chiefly concerned with the internal
governance of the Inquisition rather than with its relations to the
outside world.