CHAPTER X

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.

Torquemada and the Spanish Inquisition: A History · 第 10 / 27 章