NEGLIGENCE IN RENDERING ACCOUNTS
The Depositarios de los Pretendientes, who had charge of the deposits of those seeking proofs of limpieza, emulated the treasurers. A letter of March 28, 1665, to the Barcelona tribunal calls attention to a carta acordada of January 16, 1620, ordering the accounts of the depositario to be included in the annual statements required for the auditor-general. The latter, however, reports that he has received none for many years, wherefore it is ordered that an itemized statement in detail, including everything since the last account rendered, shall be made out, showing what is due to all parties concerned. It may reasonably be doubted whether the command was obeyed. In 1713, orders were sent to Valencia that, if the depositario did not pay the balance in four months, pressure was to be brought to bear upon him, and the secretaries were to be forced to pay him what they owed him. The pressure was unavailing, for a prolonged correspondence ensued on the subject, throughout 1714. Towards the close of the century, however, we find the depositario of Valencia rendering statements with some degree of regularity every two years.[1325]
If the accounts of the tribunals were thus carelessly kept, those of the Suprema would appear to be equally disordered. At least such conclusion is justified when, in 1685, we find it asking the tribunal of Valencia for a statement of the remittances which it had made to the treasurer-general. In 1695 the request is repeated for the years 1693 and 1694 and again in 1714, 1715 and 1726—all of which would argue most slovenly bookkeeping.[1326]
Towards the close of its career, apparently, the Inquisition had succeeded in establishing a more methodical system. In 1803, Barcelona is rendering monthly statements of receipts and expenditures with commendable regularity and we may attribute to the political perturbations the fact that the accounts of Valencia for the years 1807, 1809 and 1810 were not audited by the Suprema until 1816.[1327]
Confidence in the integrity of the average receiver was evidently neither felt nor deserved, and, at an early period, the device was adopted of thearca de tres llaves—a coffer placed in the secreto with three locks of which the keys were held by the receiver, by an inquisitor and by the scrivener of sequestrations, so that it could be opened only in presence of all three. In this repository the receiver was required to place all moneys coming into his hands and so it remained until the last, as a fine example of archaic simplicity. To this there were occasional variations, such as requiring two arcas, one for confiscations and one for fines and penances, or, when the tribunals were living on their incomes, one for capital and the other for revenue. As a rule, however, one sufficed and it was customarily divided into two compartments, for confiscations and fines and penances respectively.
The rules prescribed, in 1514, by Inquisitor-general Mercader, indicate the precautions regarded as necessary to reduce to a minimum the temptations of the receiver. He was to receive no money save in presence of the scrivener of sequestrations or of the secreto. All collections were to be placed in the coffer within three days of their receipt, in the presence of an inquisitor and of a scrivener. When subordinates brought funds from other places, they were to be delivered to him within two days in presence of a scrivener and he was required to deposit them within twenty-four hours. Fraud and deceit, Mercader says, must cease in the collection and sales of confiscations and in depositing and taking out moneys from the coffer. All expenses, ordinary and extraordinary, were to be paid with money taken from the coffer. The scrivener must, with his own hands, keep duplicate books, with dated entries, of all deposits and withdrawals, one copy to be kept in his possession and the other in the coffer. No moneys must be taken out for loans or other purpose, save the expenses of the tribunals, without the express licence of the king and inquisitor-general. Every two months the receiver and scrivener, in presence of an inquisitor, must verify the accounts and the money on hand, and must send a written statement of the latter to the inquisitor-general. Any omission or deviation from this by receiver, inquisitor or scrivener was punishable with excommunication and a fine of five hundred ducats. All the officials concerned were to be furnished with copies of these instructions and one was to be placed in the coffer.[1328]
THE COFFER WITH THREE KEYS
It was one thing to frame precise regulations and another to secure their observance. These instructions were sent to Sicily in 1515, but evasions were speedily invented for already, in 1516, a letter of the Suprema asserts that experience had shown that the custodians of the three keys, by lending them to each other, committed frauds on the moneys in the coffer. To prevent this it devised wholly inefficient regulations as to the parties to whom the keys should be confided, in the absence of the regular custodians, so that, as it naïvely remarked, no frauds may be committed in the future.[1329]
It argues a singularly hopeful spirit in the Suprema if it expected that such precautions would preclude embezzlement, when the standard of official morality was so low that malversation was prevalent everywhere and was rarely if ever punished by dismissal from office. How tenderly such indiscretions were treated is manifested in a case occurring in Barcelona, in 1514. Francisco de San Climent owed 186 libras to the confiscated estate of Bernardo and Dionis Venet; his father paid 150 on account, but this was not credited, being evidently embezzled, and, on June 13th, Ferdinand ordered the receiver, Mateo de Morrano, not to press the suit against San Climent on account of the damage that it would inflict on the honor of the officials—the matter was to be hushed up in order to spare the reputation of the tribunal.[1330]When theft was thus condoned we need not wonder at the condition of thereceptoriaof Saragossa, characterized by fraud, disorder and neglect, as described by the auditor Anton Navarro in a letter which Ferdinand gave, in 1515, to the Archdeacon of Almazan when sending him thither as inspector.[1331]
Allusion has been made above to the remedy sought by Ximenes in 1517, by sending an auditor-general to inspect all the tribunals and ascertain the balances due. It was probably in consequence of this that Juan Martínez de Guilestegui, the former receiver of Toledo, was found indebted in the sum of 51,500 mrs., but there was no thought of punishing him and, with customary tenderness, Charles V forgave him half of the debt and promised that on payment of this he should be free of all further claim.[1332]Apparently it was a matter of course that receivers should be in debt to the fisc, although, if the rules as to the three-keyed coffer wereobserved, there was no opportunity for them to be in arrears. The rules in fact were disregarded with impunity. Inquisitor-general Manrique, writing to Sicily in 1525, says that they had not been observed for several years and orders them to be enforced under the prescribed penalties, but as he did not inflict those penalties for past disobedience, his threats were a merebrutum fulmen.[1333]
The consequence of this condonation of malpractice appears whenever there is opportunity of investigation. One of Ferdinand’s most trusted receivers was Amador de Aliaga of Valencia. On his death, about 1529, when concealment was no longer possible, he was found to be a defaulter and, as one of the inquisitors was his heir, the Suprema ordered him to make good the deficit out of the estate. Then Pedro Sorell, a notary of the secreto, was in the enjoyment of certain confiscated houses, granted to him by Ferdinand, subject to a censo of 2975 sueldos; this had clandestinely been paid off out of the funds of the tribunal; Sorell refused restitution, and the Suprema merely told the inquisitors to persuade him to refund the amount without a suit. This same Sorell had covertly, through a third party, purchased a censo of 8000 sueldos, particularly well secured, sold by the fisc in order to pay salaries. The Suprema rebuked the tribunal for parting with so choice an investment, but there was no talk of dismissing or punishing the guilty notary.[1334]When the officials enriched themselves with impunity it is not difficult to understand the incessant complaints of the poverty of the tribunals.
THE JUNTA DE HACIENDA
That a receiver was expected to use the money in his hands and to be in arrears is indicated by a letter of the Suprema, in 1542, on learning the death of Ramon de Esparza, receiver of Majorca. He had not sent in his accounts and the inquisitor was empowered to compel his heirs to render a statement and to pay whatever balance might be found due.[1335]The device of the coffer had fallen evidently into complete neglect and the Suprema endeavored to resuscitate it by a carta acordada of December 9, 1545, which prescribed that all collections were to be deposited within three days of receipt, if made in the city, or within four days if made in the country, and salaries and other expenses were to be paid only from the money in the coffer, under pain of excommunicationlatæ sententiæand of ten ducats for eachinfracion. This was the commencement of an endless series of legislation reiterating or modifying the regulations in a manner to indicate how impossible it was to enforce observance. The delay allowed for deposit was increased from three days to ten; receivers were required to take an oath to obey; reports of all deposits and withdrawals were ordered to be rendered every four months. These constant repetitions are the measure of their inefficiency, and the hardened indifference of the receivers is evidenced by a complaint of Reynoso, Inquisitor of Toledo, in 1556, that since the accounts of the receiver had been balanced he had received large sums which he refused to deposit in the coffer, saying that his accounts had been settled. Then, in 1560, the order of 1545 was reissued with instructions that, in case of infraction, the receiver was to be prosecuted and punished, evidence of which was to be furnished to the Suprema.[1336]It was all in vain and the receivers continued to hold their collections at their convenience.
In 1569, with the object of reducing to some kind of order the finances of the tribunals, ajunta de hacienda, or finance committee, was constituted in each, consisting of the inquisitors, the judge of confiscations, the receiver and the notary of sequestrations, which was to meet on the last day of each month and consider all questions of property and income, deciding them by a majority vote. This, with occasional modifications, remained a standing feature of the tribunals, although the repeated exhortations and commands that the sessions be held regularly show how difficult it was to secure business-like action and management.[1337]The attempt was made to utilize this organization in compelling the receivers to deposit their collections in the coffers. In 1576 and again in 1579, orders were issued that, at the monthly meetings, the receiver should declare, under oath and under excommunication, the amount of money in his hands, what he had collected and what placed in the coffer. This was ineffectual and then it was tried to compel the notary of sequestrations to make a declaration that the receiver had deposited all that he admitted to have received. Then, in 1584, a concession was made allowing the receiver to make his deposits monthly, which of course only increased the risk of defalcations. This was followed, in 1586, byorders that he must be compelled to collect and deposit promptly the revenues of the prebends and that, at the monthly meetings, the schedule of income was to be examined in order to see what had been collected and deposited.[1338]It would be wearisome to pursue further these details, which continued indefinitely, with perpetual and ineffectual iteration, to compel the receivers to hand over their collections without delay. It hardly needs the assertion of the memorial of 1623 that the coffer was used in but very few places as a depository for the funds of the tribunals. The writer adds that the receivers thus incur excommunication and commit perjury monthly; the finances suffer great losses and the receivers are ruined by squandering the money, but the only remedy that he can suggest is that the penalties be increased and strict orders be issued that, under no pretext, should funds be left outside of the coffers. These expedients had been abundantly tried but, in the absence of rigid discipline and of punishment of offenders, they had been and continued to be fruitless. Another and most serious omission pointed out was that in many tribunals there was noLibro Becerroor register of property, with descriptions and titles, the lack of which led to great losses and much difficulty in making collections.[1339]The cause of the poverty complained of is not far to seek.
DEFALCATIONS
Under the flagrant disregard of the prescribed safeguards, it is not surprising that defalcations were by no means infrequent. The general negligence and the tenderness manifested to official malfeasance facilitated and encouraged embezzlement. It could be concealed by skilfully falsified statements but, when a receiver died, his estate was not uncommonly found to be indebted to the fisc. Thus, in the account of Lazaro del Mar of Valencia, in 1647, there is an item of 372ll. 14s. 2d. still due by the heirs of the late receiver Minuarte, although 2400ll. had already been collected of them during the previous five or six years.[1340]So when, in 1664, Joan Matheu, receiver of Barcelona, was murdered and his accounts were finally reduced to order, in 1666, they were found to be short in the large sum of 47,359ll. 1s. The widow petitionedto be released, or at least to have an abatement, which was refused, but she was given two years in which to settle.[1341]
A somewhat typical ante-mortem case was that of Carlos Albornoz, receiver of Valencia, who, it may be remembered, endeavored, in 1713, to secure the reversion of his office for his son aged twelve, and a few years later succeeded in so doing. There was trouble in getting him to render his accounts for 1723 and three or four subsequent years, and making him pay over the tolerably large confiscations of Alarcon and Macanaz. In 1727 he was allowed to resign in favor of his son and, in 1728, active measures were taken to compel him to furnish his accounts and make payments, which resulted in obtaining 6000 reales and a statement. On this, in December, 1728, the auditor-general found a balance against him of 6248ll. 10s. 1d. besides sums paid by the towns of Villanueva de Castellon and Denia which were not entered in his books. Then commenced the attempt to effect a settlement, which continued, until 1734, with more or less success, his son being meanwhile continued in office, while in the whole voluminous correspondence there is no intimation of any thought of punishing him for his inveterate disobedience and dishonesty.[1342]The confiscations, in fact, seemed to carry with them an infection. The Licentiate Vicente Vidal was administrator of the Valencia portion of the estate of Macanaz and, on settlement of his accounts, he was found to be in debt some 1800ll. The administration was transferred to Manuel Molner, to whom he gave a deed for a property renting for 100ll.; in 1729 he paid his debt and then, in 1732, he had the effrontery to ask the Suprema to refund to him the rents received from his property while in Molner’s hands.[1343]
While thus much of the chronic complaint of indigence may reasonably be attributed to mismanagement and peculation, it would be unjust to the Inquisition to ascribe to it a specially bad eminence in this respect. It was probably neither better nor worse than the other departments of the Government. Neglect of duty and misappropriation of funds, common enough to thisday in public affairs, were in past times rather the rule than the exception and flourished in Spain, perhaps, to a greater extent than elsewhere. Multiplication of offices and inadequate salaries are direct incentives to irregular gains, and the practical immunity of offenders, caused by the unwise effort to preserve the external reputation of the Holy Office, was an encouragement which could not fail to induce slovenly service, disobedience of rules and frequent embezzlement.
ALLUSIONhas occurred above to the Edicts of Grace which, in the earlier period, played an important part in the machinery of the Inquisition. It was a custom inherited from the thirteenth century of which the conditions, as adopted in Spain, are expressed in the Instructions of 1484. When, at any place, a tribunal was opened, at the close of the initial sermon the inquisitors were to publish a Term of Grace, lasting for thirty or forty days, during which those conscious of heresy could come forward, making complete confession of all errors remembered, including those of others. They were to be assured that all who did so, with contrition and desire to abjure, would be charitably received, would be given salutary penance and would not be condemned to death, to perpetual prison or to confiscation, but the inquisitors were empowered to reconcile them and, at their discretion, to require them to give as alms a certain portion of their property in aid of the holy war with the Moors. Spontaneous confession after the Term of Grace, provided the parties had not been testified against, secured reconciliation with confiscation; where adverse testimony had been received, heavier penalties, even to perpetual prison, could be inflicted.[1344]In the supplementary Instructions of December 6, 1484, Torquemada added that the sovereigns granted to those thus reconciled the right to collect debts and confirmed all alienations made prior to the reconciliation, but that no subsequent alienations or encumbrances on real estate would be valid without special royal licence.[1345]This still left questions unsettledand, in Torquemada’s further Instructions of January 5, 1485, it was provided that, if the reconciled held public office, they were to be temporarily disabled, until their steadfastness in the faith was proved; those who had been prevented by sickness, or other just impediment, from availing themselves of the Term of Grace were to be admitted but, if there was proof against them, they were subject to confiscation and their cases would be submitted for the royal decision. Those who did not confess fully as to themselves and others were to be regarded as fictitious converts and, if evidence was received against them, were to be prosecuted with the utmost rigor. Fugitives coming forward within the term were to be admitted.[1346]
A case occurring in 1483 shows that this was a mitigation of the pitiless strictness with which the limits of the Term of Grace had been observed. When, in December of that year, Juan Chinchilla was on trial at Ciudad Real, one of the articles of accusation was that he had not come forward during the term. In reply he stated that the Comendador del Carral had sent him away during that time; that he had gone to the Inquisition to confess, but Padre Caetano had retired after hearing mass and he had been told to return at another time; then he went to the receiver and begged him for God’s sake to get him admitted; the receiver had promised to do so and came to summon him; he thought that he was being taken to the inquisitors, but found himself thrown in prison. His explanation availed him nothing, nor did his free confession of his errors, and he was duly burnt.[1347]In the awful confusion and haste of those opening years, such cases must have been frequent. There were few formalities observed, for there had not been time to develop an elaborate course of procedure, and each inquisitor, to a large extent, followed his own devices.
CONFESSIONS UNDER THE EDICT
I have nowhere met with the full text of an Edict of Grace, but the substantial formula is given in the sentence pronounced, January 30, 1484, in Ciudad Real, against the fugitives Sancho de Ciudad and his wife. This recites that, as there was public report that in Ciudad Real many nominal Christians followed the Law of Moses, the inquisitors had verified it by testimony; that, desiring to treat them with clemency, they had issued their Edict that all thus guilty should come forward and abjure within thirty days, when they would be treated with all possible mercy; thatthey had extended this for thirty days more and had received all who desired to present themselves, after which they had issued their summons and edict against all who had fled and had been testified against as suspect and defamed for heresy.[1348]
We have seen what was this mercy, in penitential processions and heavy amercements, and we shall see how illusory, in many cases, was the promised immunity, owing to thediminucionor imperfection of the confession. It was required to be full about themselves and others; the assumption necessarily was that they were genuine converts at heart and as such must be eager, not only to discharge their consciences as to all past errors, but to aid in the punishment of all heretics and apostates, including those nearest and dearest to them. Anything short of this showed that their confession was fictitious and thus it only added to their guilt. Ample evidence against them was obtainable, not only from informers who were numerous and active, but from the confessions of others, whether coming in under the edict or on trial. The tribunals were watchful in utilizing all this material, and reconciliation under the edict was apt to be supplemented by arrest and condemnation.
The confessions under the Edicts of Grace are pitiful reading. The poor creatures naturally admit as little as possible, in the hope of diminishing the pecuniary penance. They strive to extenuate their errors and throw the blame on those who misled them; they grovel before the inquisitors, profess the deepest contrition and promise strenuous perseverance in the faith. They rarely go out of their way to compromise others, but they frankly state who it was that perverted them and have no hesitation in implicating parents and kindred and benefactors. Unlike the priest in the confessional, the inquisitors abstained from interrogating them or seeking information about themselves or others. It was not their policy to stimulate confession and the penitent was allowed to state as much or as little as he chose. The results are evidently the unassisted work of the penitents, inconsistent, rambling, frequently almost unintelligible, whether written by themselves or taken down verbatim by the notaries, for it was essential that they should be of record, to be brought up against them, in the probable case of backsliding or of testimony to omitted facts. The confession of Maria Gonsales de la Panpana,Ciudad Real, October 9, 1483, may be taken as a specimen. In it she throws all the blame upon her husband and recites the thrashings received at his hands to force her to follow Jewish observances. She was duly admitted to reconciliation but, in about three months, she was arrested and tried and was burnt in the great auto de fe of February 23, 1484.[1349]The unsubstantial character of the mercy promised in the Edict of Grace is illustrated in the typical case of Andres González, parish priest of Talavera. Soon after the tribunal of Toledo had been organized and before there had been any proclamation in the archidiaconate of Talavera, he sought to protect himself by appearing before the tribunal, making confession and obtaining reconciliation. Doubtless prisoners on trial testified against him, for he was soon afterwards arrested. November 5, 1484 he made a fuller confession, covering all the points of Judaism and disbelief in the sacraments which he had been administering. In spite of his professions of repentance, the fiscal claimed that this was extorted by fear, and presented the evidence of ten witnesses, whose testimony as a whole was but a confirmation of his confession. He gained nothing by his self-denunciation; he was degraded from the priesthood and burnt in the auto de fe of August 17, 1486.[1350]
THE TIME OF MERCY
If thus the Edict of Grace was of little benefit to the New Christians, it was of the utmost service to the Inquisition. The multitudes who came forward contributed large sums in their “alms;” they gave the tribunals wide knowledge of suspects and a means of subsequently convicting them on the score of their imperfect confessions—for their confessions could not fail to be technically imperfect. Moreover, the necessity of denouncing all accomplices furnished an invaluable mass of testimony for further prosecutions. Thus, by this simple and apparently merciful expedient, the inquisitor was provided with funds and had his work laid out for him, enabling him to gather in his harvest with small labor of investigation and with full certainty of results. The fisc also had a further advantage in the opportunity afforded by the imperfect confessions of the reconciled. Besides the general compositions for confiscation described above, there were special ones exempting the Conversos from this particular peril. Thus a royal cédula of April 6, 1491, grants to those of Valencia, for five thousand ducats, release of confiscation for all imperfectconfessions and for heresies committed up to that date, except in cases of relapse.[1351]Their fears were speculated upon in every way conceivable.
This probably explains some obscure allusions to a Time of Mercy, as distinguished from the Time of Grace, of which the clearest account we have refers to Majorca. A contemporary relates that “Some years after the Time of Grace, perhaps two, when many heretics had confessed some errors but not all, and had suppressed the names of many accomplices, a rigorous inquisition was made against them. Then, at the persuasion of a certain great Rabbi, nearly all the apostates, seeing the afflictions visited upon them, came to the palace of the inquisitors with loud cries and tears (I wish they were sincere) begging for pardon. Then new confessions were made and, by command of the inquisitor-general, with the consent of King Ferdinand, they were admitted to mercy with a moderate pecuniary fine to redeem their lawfully confiscated property. And that time was called the Time of Mercy. And this occurred in our city of the kingdom of Majorca, viz., the Time of Grace in 1488 and the Time of Mercy in 1490, when I was ten years old. Yet the grace and mercy were of little avail for, from then until the current year 1524, the inquisition against them has never ceased; many were delivered to the secular court and very many exposed to shame and imprisoned for life and their property confiscated, yet never would they amend.”[1352]
However successful was the device of the Edict of Grace, from the point of view of inquisitor and king, it evidently won over but few to the faith and, after a comparatively brief experience, the Conversos recognized that those who availed themselves of it were in a distinctly worse position than before, as their confessions were on record against them in case of relapse, and they were exposed to the added danger that any imperfections in those confessions were legally construed as impenitence, which was mortal. We shall see, when considering the subject of confession that this question of imperfection was treated so rigidly as to render its avoidance practically impossible, and of this the Inquisition took full advantage, for we find the Suprema instructing the tribunals to scrutinize carefully all confessions made by those under trial and compare them with those presented in the Timeof Grace, to see whether anything had been concealed and whether the so-called penitents counselled with each other to shield their friends and kindred.[1353]This latter clause points to another serious bar to the success of Edicts of Grace, in the obligation to denounce accomplices, which involved the exposure to prosecution of all the friends and kindred of the penitent. This was especially felt when the enforced conversion of the Moriscos subjected them to the Inquisition, for one of their evil qualities, we are told, was that, while they could be forced to confess freely about themselves, they could not be induced to betray their neighbors, wherefore they were burnt for impenitence.[1354]
The Moriscos offered the largest field for the exploitation of Terms of Grace during nearly a century. There was an earnest desire, for reasons of state, to secure their conversion, and special concessions were made to them with little result. The details of these will be more conveniently considered hereafter, and it will suffice here to mention that Philip II, towards the close of his reign, proposed to issue an edict of a comprehensive character which should determine the question of expulsion. Convinced of the futility of such measures involving the denunciation of accomplices, he applied to Clement VIII for permission to omit it, but the pontiff was more rigid than the king and, in his brief authorizing the edict, he insisted on the denunciation of apostates.[1355]Philip’s death, in 1598, postponed the issue of the edict until August 22, 1599. Every effort was made to render it successful and the twelve months conceded in it were extended to eighteen, expiring February 28, 1601. The result was awaited with anxiety and, on August 22, 1601, the inquisitors reported that during the whole term only thirteen persons had taken advantage of it, and these had made such imperfect confessions and had so shielded their accomplices that they deserved condemnation rather than absolution.[1356]
UNDER THE RESTORATION
For two centuries after the expulsion of the Moriscos we hear nothing more of Edicts of Grace. There were no longer in Spain bodies of heretics or suspects to whom such expedients were applicable, and the desired unity of faith was secured so far aspracticable but, with the Napoleonic wars, there came new sources of infection. Spain was traversed from end to end by armies composed of heretics like the English or largely of free-thinkers like the French. Jews had taken advantage of the troublous times to pollute the sacred soil and liberal ideas, abhorred alike by Church and State, had ample opportunity of dissemination. With the re-establishment of the Inquisition, in 1814, it seemed opportune to meet the flood of heresy and libertinism by the old methods. On January 2, February 10 and April 5, 1815, therefore, the inquisitor-general issued Edicts of Grace, promising that all who, during the current year, should come forward and denounce themselves for heresy or other crimes justiciable by the Inquisition, should be absolved without punishment and without obligation to denounce accomplices. This was followed, April 12th, with orders to collect all information possible, but not to prosecute until after the expiration of the term, when all who should not have spontaneously presented themselves were to be put on trial. This comprehensive plan can scarce be pronounced a success. The records show that a fewespontaneadosavailed themselves of the promised grace, but the number was lamentably insignificant. This did not encourage prolongation of the term and, on January 12, 1816, another edict announced its expiration and the revival of the old obligation to denounce all offences known to the penitent.[1357]There does not seem to have followed any outburst of prosecutions. The tribunals, doubtless, had been too much occupied in repairing their shattered fortunes to waste much thought on accumulating information as to heretics.
INconsidering the judicial functions of the Inquisition, we shall meet with much that is abhorrent to our conceptions of justice. We shall see that the accused was assumed to be guilty and that the object of the tribunal was to induce or coerce him to confess his guilt; that, for this purpose, he was substantially deprived of facilities for defence and that the result, for the most part, depended on his powers of endurance which the judges, at discretion, could test to the utmost. It would not be easy to construct a system more repugnant to rational methods for the ascertainment of truth.
At the same time, the vices of the inquisitorial process, at the period under consideration, were not wholly confined to the Inquisition. It is true that it was responsible for their origin, in the thirteenth century, when the jurisprudence of Europe was undergoing reconstruction, and the methods which it framed for the conviction of heresy offered such advantages to the prosecution that they were adopted in the secular courts of nearly all the lands where the Holy Office found a foothold, and became an essential part of criminal codes. The judge, in place of an impartial dispenser of justice, grew to be virtually a prosecutor, with unlimited power of wringing confession from the accused; the latter was practically compelled to prove his innocence, and the trained and subtle intellects of the bench were engaged in conflict with the cunning or stupidity of the miserable wretches brought before them. On the one side was the pride, resolved not to be baffled, on the other the desperate effort at self-preservation and, in the unequal struggle, innocence was much more apt to suffer than guilt to escape. So completely did this identification of judge and prosecutor dominate the criminal jurisprudence of Latin Europe, that in France, until the law of December 8, 1897, after the jury system had been in use for a century, the judge, armed with thesumariaordossierof incriminating evidence, opened the trial by interrogating the accused and assuminghis guilt—an interrogation which was liable speedily to degenerate into a duel between them, in which the judge endeavored to break down the line of defence which the accused was obliged unskilfully to reveal.[1358]
In this the kingdoms of Aragon were strikingly exceptional, for the inquisitorial process, as we have seen, was prohibited. In Aragon itself the interests of the accused were carefully guarded. There were elaborate provisions against arbitrary arrest, although admission to bail was limited. Accusers had to give security and were liable to double costs and damages in case of failure to prove charges. Witnesses were diligently cross-examined and, in cases involving serious punishment, five disinterested jurists were associated with the judge in passing sentence, against which there was right of appeal. There was no public prosecutor, before the revision of procedure by the Córtes of Monzon in 1510, and then it took many years to bring the office into general use. The abuse existed of prosecutionsin absentiathough, if the accused subsequently appeared, he had the right to appeal, and still worse was the custom of keeping the prisoner chained until his trial was concluded.[1359]In Valencia, and probably elsewhere, there was a peculiarly valuable privilege that no one, whether defendant or witness, was compelled to answer questions that would criminate him.[1360]In Biscay, the fueros, as revised in 1526 and in force until the Revolution, were very emphatic in providing the accused with all information necessary to his defence.[1361]
SECULAR PROCEDURE
In Castile the processes by accusation and by inquisition were both employed. An accuser, however, was obliged to give security and was subject to fines if it appeared that he acted through malice. If there was no accuser, the judge, or alcalde, made inquisition and proceeded summarily to try the case. When, under the impulse of Isabella and the guidance of Alfonso Díaz de Montalvo, the Córtes of Toledo, in 1480, revised the criminal jurisprudence of the land, their action served as a basis for all subsequent legislation. It breathes the spirit of justice—the rigorous punishment of guilt and avoidance of punishment of innocence. The courtswere enjoined to quick despatch, the accused was to have all necessary opportunities for defence; if poor, counsel was supplied at the public expense; he could recuse any judge for cause and appeal from any decision, and he was always entitled to give bail. Prosecutionin absentia, however, was allowed; after three summonses of nine days each, the accused could be prosecutedin rebeldia, as contumacious and be condemned.[1362]
While thus in Castile legislation was dictated by a sincere desire for justice, in practice the accused was subjected to unnecessary disadvantages and hardships. We chance to have the proceedings in the case of Francisco Fernández de Montemayor, of Seville, tried in Ciudad Real in 1499, on a charge of petty thefts on fellow-lodgers in an inn, in which the general course of procedure bears sufficient resemblance to that of the Inquisition to show that the latter borrowed its forms from the secular courts with modifications to facilitate conviction. When Montemayor was arrested in his inn, September 10th, his effects were sequestrated, locked in his chest and left in charge of the innkeeper. When money was needed for his prison expenses, the judges, on his application, sent the prison scrivener to take out a prescribed sum in the presence of witnesses. The witnesses on both sides were examined on a series of written interrogatories, a most imperfect method, and were not cross-examined. Their names were not concealed, but the accused was kept in gaol and was not present. His own examination was made by the judges in anaudiencia de cárcel. He was allowed to retain an advocate, who presented a written defence. The charges were frivolous and, on October 28th, the judges pronounced that the fiscal had not proved his case, which acquitted the prisoner. His treatment in gaol had been harsh; he was an hidalgo and, a few days after arrest, he asked to be treated as a man of good lineage and not to be herded with criminals, whereupon he was placed in a cell, with a heavy chain, under close guard. On acquittal he begged to be released from his fetters, which was done on his swearing not to leave the prison—for he was not discharged. Unluckily, the testimony contained some heretical speeches, though thewitnesses believed them to have been uttered in jest, as he was always striving to be jocular. The secular court could take no cognizance of them but the Inquisition claimed him and he was delivered to it in chains, November 9th. His trial had occupied six weeks; the Inquisition kept him for two years and, on November 10, 1501, it penanced him and made him abjurede vehementi. Doubtless the poor wretch was ruined.[1363]
THE SPIRITUAL COURTS
If we find reason to believe that the tribunals of the Inquisition were largely actuated by passion or greed, they were in this no worse than the secular courts. The constantly reiterated complaints of the Córtes, during the sixteenth century, assume that the whole judicial system of Castile, from the highest to the lowest, was not so much an instrumentality of justice as a venal organization to extort the largest possible sums from pleaders and to oppress the poor for the benefit of the rich.[1364]We might, perhaps, regard this as rhetorical exaggeration if we had not the opportunity of seeing how a court of the highest rank—the royal Audiencia of Seville—in 1598, disregarded all law and justice when it sought to gratify its spite on the magistracy of that city. We have seen (Vol. I, p. 362) the absurd quarrel raised with the judges by the inquisitors on the occasion of the obsequies of Philip II. The judges, unable to avenge themselves on the tribunal, discharged their wrath upon the civic authorities, who had sought to mediate and keep the peace. They arrested on the spot several of the highest officials, including two members of the great house of Ponce de Leon and, in spite of the indecency of sitting as judges in their own case, they prosecuted their prisoners. They took the testimony of thirty-seven witnesses on written interrogatories, containing leading questions, and accepted hearsay evidence of the veriest gossip. The accused were allowed to see the accusation framed by the fiscal, but not the evidence, and no opportunity of making defence was permitted. Thereupon their advocates recused the judges, but the recusation was not only rejected on the day of its presentation, but the accused and their advocates were all heavily fined for offering it and, the next day, sentence was pronounced condemning the prisoners to various terms of suspension from office, exile, fines and costs. Both they and the fiscal appealed, and a second hearing was held,in which the defendants at last were allowed to see the evidence. Both parties meanwhile had been applying to the Council of Castile, which ordered that the sentence should not be confirmed without being first submitted to it, but the judges anticipated this and, the day before the order was received, hastily assembled with closed doors and, in the absence of the accused and their counsel, affirmed the decision and ordered its immediate execution, with the exception of Ponce de Leon Almansa, who was of kin to one of them. The sentences were carried out with cruel vindictiveness. There was pestilence in the district to which the exiles were sent and they were brought back sick to Seville, where the Alcalde mayor, Juan Ponce de Leon, died and the others were treated with the utmost harshness.[1365]When the royal courts permitted themselves such arbitrary perversions of justice, we need not be surprised that the Inquisition was reckless, shielded as it was from responsibility by impenetrable secrecy. Between them, the Spanish people were sorely vexed.
To this the spiritual courts offered a contrast in their customary benignity towards clerical offenders, amounting almost to immunity. The course of procedure was that, when a denunciation was made to the provisor or vicar-general, he took testimony or sent an official to make inquisition; the accused was summoned and was admitted to bail; the trial took the shape of an action between him and the fiscal, who presented an accusation to which the defence made reply. Witnesses for the defence were examined, publication of evidence was made and, when both parties had concluded, the judge named a day for pronouncing sentence. From two cases of the sixteenth century, of which the papers are before me, it would appear that there was little delay, that formalities were loosely observed and that the proverbial leniency shown to the cloth rendered the whole a matter of comparative indifference. One of these illustrates the expiring episcopal jurisdiction over heresy and its supplantation by the Inquisition. In 1551, Diego de Carcano, a priest of Ciudad Real, was tried for heretical acts and speeches, which he freely admitted, saying that they had been in jest and that he ought not to have trifled with the things of God. The trial was concluded within three weeks and Diego was confined for a few days in a parish church with spiritual exercises, besides paying costs, amounting to aboutthirty-two reales. Two years later, Inquisitor Valtodano, on a visitation, chanced to hear of the affair; he treated the episcopal trial as invalid and vindicated together the faith and the inquisitorial jurisdiction by a second prosecution of the unlucky priest.[1366]
The laxity of the Church towards its erring members was still further illustrated by the reforms adopted in the provincial synod of Toledo, held in 1565 to receive the Council of Trent. The fiscal was ordered not to denounce any one to the judge; no inquisition was to be made, unless there was a legitimate general report against a culprit, and then the judge was required to investigate carefully whether it arose from malevolence or from reputable persons. If the fiscal desired to accuse any one he was subjected to the laws concerning accusers and, if he failed to prove the charges, he was liable for the costs and to punishment at the discretion of the judge. All pecuniary penalties were to be expended in pious uses, and not for the advantage of the bishop or his vicar-general, and an official was to be deputed to receive them and render a strict account.[1367]
The most marked distinction between the procedure of the Inquisition and that of the other jurisdictions was the inviolable secrecy in which all its operations were shrouded. There were, indeed, other evil peculiarities, but this it was which inflicted the greatest wrong on its victims and exposed the inquisitor to the strongest temptation to abuse his power. It was an inheritance from the thirteenth century, when the Inquisition early discovered the greater freedom of action and the increased popular dread resulting from the mystery which emancipated it from public opinion and veiled all its actions, until their outcome was revealed in the solemnities of the auto de fe. The Roman Inquisition retained it, but in a somewhat modified degree. All its officials were sworn to silence as to everything that occurred in the Congregation but, in 1629, this was explained as restricted only to matters that might prejudice cases.[1368]Very different was the awful silence so enforced in Spain that it formed an important factor in the power of the Holy Office.