EXPENSES
It is remarkable that, during the period of most active work, there seems to have been no general settled system of defraying the maintenance of prisoners. There is no provision for it in the instructions of 1484, but in Torquemada’s supplementary orders of December, the receivers were required to pay the expenses.[1563]Yet we have seen that immediately after this the alguazil was in receipt of a salary equal to, or more than, that of the inquisitorsbecause, as Ferdinand said, he had to meet the great charge of the prisoners—“tiene tan gran costo con los presos”—and, as we find this in the salary lists of Saragossa, Burgos, Medina del Campo and Seville, it would seem to be a general rule, while the Instructions of 1498 appear to show it still in force.[1564]Yet the accounts of the Valencia tribunal, in 1497-8, indicate that the maintenance of those who had property was drawn from the sequestrations while the “pobres miserables presos en las carceles” were supported by outside friends or kindred, who were subsequently reimbursed by the receiver. The per diem was 9 dineros for men and 8 for women, while Ali Divit, a Moor and presumably abstemious, was reckoned at 5.[1565]
A letter of Ferdinand, in 1501, authorizing the receiver of Sardinia to include among his disbursements the cost of maintaining prisoners, would indicate that this was becoming the rule, but another letter of the same date calling for reimbursement to Anton López, a yeoman of his guard, who had been ordered by an inquisitor to support certain prisoners, shows that no definite system was as yet established.[1566]These irregular methods afforded opportunity for embezzlement and extortion, resulting doubtless in much suffering among the captives. The memorials of Llerena and Jaen, in 1506 complain of conspiracy among the officials to cut down the rations, and that only 10 maravedís a day were allowed, from which 2 were deducted for shaving, linen and cooking, when 25 or 30 were required, at current prices, for bread alone.[1567]
At length the alcaide or gaoler appears as the official handling the funds when, in 1510, Ferdinand ordered Villacis, the receiver of Seville, to pay him 5000 maravedís because he had fed the prisoners during a time of pestilence.[1568]This was evidently an exceptional case, arising from an emergency, but it was adopted, in 1516 and 1517, in some instructions of the Suprema to the tribunal of Sicily; where there were sequestrations, the amount was to be drawn from them; in cases of extreme poverty the costof a moderate diet could be defrayed by the receiver from the confiscations.[1569]
Nearly forty years had passed since the founding of the Inquisition—years of intense activity—and as yet no regular system had been adopted in a matter so important. The necessity was felt and, in 1518, an order was issued in the name of Charles V, which shows that the kindred or friends of the prisoner had been expected to bring his food to the prison. The order recites that, as they come from all parts of the district and are far from their families and property, they suffer greatly. Therefore, in the case of non-residents of the city, the receiver is to pay for food and necessaries, under instructions from the inquisitor. An account is to be kept with each prisoner and, if he is discharged, he shall repay the receiver before his sequestration is lifted; if he is poor, he shall not be asked for it and the auditor shall pass the item in the receiver’s accounts.[1570]The liberality of this clause seems to have been a novelty, and it took some time to establish the duty of the Inquisition to prevent its poor prisoners from starving, for we find the queen-regent, in 1531, authorizing their maintenance, at Barcelona, at the expense of the fisc.[1571]
RATIONS
Yet this was not held as relieving the family from supporting, as far as possible, an imprisoned member. The account of the dispensero or steward, of the Valencia prison, from October 8, 1540 to May 5, 1541, shows that during that period there were twenty-five prisoners thus supported, at least partially, husbands paying for wives, wives for husbands, sons for fathers, etc. The sums received were small and suggest the struggle endured by families to contribute to the necessities of those in gaol; they were paid in trifling amounts of from 5s. 5d. to 8s. 8d., representing probably a monthly assessment, and this was by no means continuous for, in eight cases, only one payment is recorded and in only one case is there more than two payments. For the whole period the aggregate is only 15 libras 19s. 4d., while during this time the steward obtained from the receiver 120 libras 2s., which probably included what the fisc had to pay and what was drawn from the sequestrations of the wealthier prisoners.[1572]With regard to the latter, the rule was to sell the personal propertyfirst and then the real estate, and inquisitors were urged, in 1547, to be prompt in collecting from the proceeds, as the sequestrations were apt to be consumed in supporting the family, leaving nothing to repay the fisc for its advances.[1573]
It was the duty of the inquisitor, when a prisoner was brought in, to ascertain, from the receiver and notary of sequestrations, his station in life and his wealth, and to fix the amount of his allowance in accordance with the current prices of provisions, but a wealthy man could spend more if he chose and, if a person of quality wished to have one or two servants incarcerated with him, as in the case of Carranza, this was permitted; what might be left over from their table was to be given to the poor and not to be made a source of profit to the alcaide and dispensero.[1574]There was liberality in this as, in case of confiscation, the estate was diminished by the extra expenditure. Even the ordinary allowance was at the disposition of the prisoner, who could economize on it and spend it in any manner that he chose.[1575]
Thus there never was at any time a fixed and absolute ration, although of course there was a general minimum standard for the poor who had to be supported. Whatever it was, it was liable to alteration as circumstances might dictate. After Jacques Pinzon was imprisoned in Granada, February 25, 1599, on March 9th the alcaide reported that he consumed in one day the ration of two and was dying of hunger, whereupon the inquisitors kindly increased his allowance to a real per day; this kept him quiet for three months, when there was a fresh complaint and 5 maravedís were added.[1576]In 1616, Padre Hieronimo de la Madre de Dios, tried for mysticism, sought his first audience to complain that his ration was insufficient; he wished it increased by a real a day, which could be charged to his sequestrated property.[1577]Evidently prisoners did not hesitate to make their wants known and there was readiness to listen to them.
With the gradual concentration of power in the Suprema it came to regulate this in all the tribunals. In 1635 Valencia reported that, in consequence of the dearness of bread, the prisoners were suffering from hunger, and it asked authority to increasethe ration. The Suprema deliberated for five weeks and then ordered an increase to be made “with great compassion.” The close supervision exercised is indicated, in 1695, in a criticism on a monthly report from the same tribunal, in which one of the omissions noted is that the ration assigned to each prisoner is not stated.[1578]
The fall in the purchasing power of money, and especially of the debased vellon coinage, necessitated an increase in the ration. In 1641, at Toledo, the ordinary daily allowance was 1½ reales which, by 1677, had doubled to 3 reales.[1579]In Valencia, the ordinary ration had increased to 22 dineros in 1688 and, in 1756, to 2 sueldos.[1580]
COLLECTION OF COSTS
When the prisons were full and the trials, after the first hurried rush, grew more and more protracted, the expense of maintenance was not small, as can be gathered from occasional indications. Thus, in 1566, we find the Suprema ordering its alguazil mayor to remit to the tribunal of Calahorra 400 ducats to defray the food of prisoners.[1581]In 1586, Benito Sanguino, the receiver of Valencia, in settling his accounts, claimed credit for 19,856s. 11d. paid to the dispensero for the maintenance of poor prisoners, in addition to what he had disbursed for the purpose on the orders of inquisitors, an irregularity for which the Suprema demanded an explanation.[1582]Some light is thrown on the way in which these costs accumulated by the case of Fray Lucas de Allende, guardian of the Franciscan convent of Madrid and one of the dupes of Lucrecia de Leon, abeata revelandera. When arrested in 1590, his brother, Alonso de Allende, asked permission to give him an allowance of a real a day—a request which proved costly, as the trial lasted for six years and two months.[1583]In 1659, the orders given by the tribunal of Madrid, for the food and incidentals of its poor prisoners, who seem to have averaged about ten in number, reached an aggregate of 12,874 reales and, in 1681, the amount was 25,748.[1584]As the activity of the Inquisition diminished,and perhaps also as its resources fell short, this drain on its finances was greatly reduced. In a statement of the expenses of the Valencia tribunal, from 1784 to 1790 inclusive, the charge for maintenance of poor prisoners becomes trifling. The total expenditure during these seven years was 501 libras 18s., of which 300 libras 8s. were recovered from the parties, leaving a net outlay of 201 libras 10s., or less than 30 libras per annum.[1585]
The tribunals were unrelenting in the collection of these expenses from all who could be held responsible. In the case of frailes, who could own no property, their communities were liable. Thus, in 1649, the tribunal of Valencia issues an order to collect, from the Provincial of the Augustinians, 600 reales for certain members of his Order who were in its prison. When the trial of Fray Estevan Ramoneda was concluded, September 12, 1696, the Barcelona tribunal rendered to his Order of Merced a bill of 730 reales for his expenses. The Provincial assessed it on all the Mercenarian converts of Catalonia and, on November 15th, the inquisitors scolded the prior of the Barcelona convent for delay, when he replied that his convent had paid its share but that others were dilatory. In 1709, the Suprema issued an order that there must be no exceptions, even to the Barefooted Franciscans, showing that they had been endeavoring to procure exemption.[1586]
The Inquisition was not likely to be more lenient with the laity. Its determination to secure reimbursement is seen in an order of the Valencia tribunal, in 1636, that when Francisco Morales completes the term of galley service to which he has been condemned, he is to be sold to his neighbors to repay what he has cost to the fisc.[1587]These costs were not simply for maintenance in prison, but for expenses attending arrest and trial, including the fees of advocate and procurator and all postage incurred. The whole of this was a first lien on the property of the prisoner and, if he was afiliusfamilias, his father was liable and could be forced to pay.[1588]Before an auto de fe, the dispensero and notary of sequestrations carefully made up the account of every penitentwho escaped confiscation, and it was the duty of the fiscal to see that, if he had property, he settled or gave an obligation to settle and, if he was poor, that he took an oath to pay whenever he should be able.[1589]How these accounts were swelled is visible in that rendered by the Barcelona tribunal, in 1756, to Don Antonio Adorno, a soldier of gentle blood in the regiment of Asturias. He was only fifty-eight days in prison which, at 2 sueldos a day, amounted to a little less than 6 libras, but the aggregate of the bill was 26. He subscribed his name to this as accurate, stating that he had no property with which to meet it, but that, if God should grant him better fortune, he obligated himself to pay it to the receiver or his duly authorized representative. As his sentence was banishment from the Spanish dominions, this was a pure formality, but it could not be omitted.[1590]A few months later we have a piteous letter from Dr. Agustin Tamarit, a physician of the town of Salas, whose enemies had involved him with the Inquisition, resulting in a charge against him of 5 libras 16s. In reply to a demand for payment he protests that he is miserably poor. During his enforced absence, his colleague, Dr. Rubert, had collected from the town theconducta, or stated salary due to both, and refuses to pay over his share; if the tribunal will compel Rubert to settle he will endeavor to sell some wheat and satisfy the account.[1591]
On the whole we may conclude that the secret prisons of the Inquisition were less intolerable places of abode than the episcopal and public gaols. The general policy respecting them was more humane and enlightened than that of other jurisdictions, whether in Spain or elsewhere, although negligent supervision allowed of abuses and there were ample resources of rigor in reserve, when the obstinacy of the impenitent was to be broken down. The one unpardonable feature was the seclusion which kept the unhappy captive ignorant of all that occurred outside of his prison walls and deprived him of facilities for defence and of communication with family and friends. This rendered doubly bitter the prolonged detention which often held him for years in suspense as to their fate and deprived them of all knowledge as to him.
INcriminal procedure, the character of admissible evidence and the methods employed to test its veracity are of such determining importance that an investigation of the system followed by the Inquisition is necessary if we are to estimate correctly its administration of justice. In this, the fact must be borne in mind that the complicated rules of evidence, peculiar to English law, have grown out of trial by jury, where those who have to pass upon the facts are presumably untrained to estimate testimony, so that it has to be carefully sifted before it is allowed to reach them, while that which is admitted is subjected to the searching process of cross-examination. All this had no place in the systems which Continental Europe inherited from the civil law. The judge was assumed to be a trained jurist, equipped to distinguish truth from falsehood, so that the flimsiest evidence might be brought before him, secure that its worthlessness would not affect his judgement, while it might afford some clue leading to the truth. The defects of this were greatly exaggerated in the Inquisition, where unlimited discretion was allowed to judges, who were mostly theologians eager to prove and to punish the slightest aberration from the faith, and where the secrecy preserved as to the names and identity of the accusing witnesses precluded all thought of cross-examination, although the story of Susannah and the Elders might well have conveyed a warning as to the danger of unjust judgement by an unassisted bench.
In the ancient Castilian law, both parties to an action saw the witnesses sworn, but the judges examined them in secret, apparently as a precaution against their being tampered with. Great care was taken as to their character, and those were excluded who were of ill-repute or had been imprisoned, or perjured, or were Jews, Moors, heretics, apostates, or who were interested in the case, or dependents on one of the parties, or were less than fourteen years of age, or very poor, unless proved to be of good fame, while, in criminal cases, no witness was received who wasunder twenty and no member of a religious Order.[1592]In Aragon, the utmost care was prescribed as to the character of witnesses; if not personally known to the judge, the fact was to be entered upon the record and the judge was required to cross-examine them personally as to all minute details that might lead to the exposure of fraudulent testimony.[1593]Under the civil law, parents and children were not admitted to testify against each other nor could a freedman be a witness against his patron.[1594]
WITNESSES FOR PROSECUTION
All these precautions which the experience of ages had shown to be necessary as guards against injustice under systems of procedure where the judge was also in some sort a prosecutor, were cast aside by the Inquisition in its zeal to preserve the purity of the faith. The grossest partiality was shown in the distinction drawn as to eligibility between witnesses for the prosecution and those for the defence. For the former there was no disability save mortal enmity towards the accused. From the earliest times the Church had prescribed fourteen as the minimum age for witnesses[1595]and, in Spain, where majority was not attained until the age of twenty-five, minors younger than that were not admitted in criminal cases. Accordingly, in the records of the Inquisition, witnesses are customarily described asmayoresormenores, but no difference was made in accepting their testimony, and Rojas tells us that formerly he thought that heresy could not be proved by two witnesses under twenty-five, but the rule is that the fiscal is not bound to prove that his witnesses are legal; everyone is presumed to be so and his evidence must be received until objection is made, which, considering that their identity was most carefully concealed from the defence, is tantamount to saying that none could be rejected on that score.[1596]Witnesses of the tenderest years were therefore admitted without scruple. In the case of Juan Vazquez, tried in Toledo for sorcery in 1605, one of the witnesses was a girl of twelve. In the same tribunal, in 1579, a witness only eleven or twelve was heard against Francisco del Espinar, for maltreating a cross, and the culprit, whowas only thirteen, was held to be responsible.[1597]Witnesses under twelve were not sworn, because they were deemed incapable of understanding the nature of the oath, but their evidence was received and recorded without it, as appears in the report of a Valencia auto de fe in 1607.[1598]In the Roman Inquisition the canon law was treated with more respect, and the fiscal was not allowed to present a witness below the age of fourteen.[1599]
There would seem to have been at first some discussion as to the admissibility of the evidence of slaves against their masters, but it was settled, in 1509, by a provision of the Suprema, declaring it to be legal but as, in cases of heresy, they were working for their liberty in convicting their masters, their testimony should be carefully scrutinized and, if it appeared doubtful, it should be validated by torturing them.[1600]There was also a question as to Jews, for laws of the Fuero Juzgo (Lib.XII, Tit. ii, n. 9, 10) forbade them from testifying against Christians, but they were received in the Old Inquisition and the New was not more rigid.[1601]As regards kindred, Simancas tells us that, although not allowed to testify for the prosecution in other crimes, in heresy they are the best witnesses, as being beyond suspicion of enmity and they must be compelled to give evidence because religion is to be preferred to kinship.[1602]In fact, a large portion of evidence was derived from them, for no confession was accepted as complete that did not include denunciation of accomplices, and those who confessed to save their lives were perforce obliged to betray their families. The agonizing struggle, thus induced between natural affection and self-preservation, is illustrated in the case of María López, in 1646, at Valladolid. For nearly four months she resolutely denied everything, but her endurance was at last exhausted and, on April 25th and 27th, she confessed as to herself and others and ratified it on May 7th. In her cell she brooded over this until June 25th, when the alcaide reported that she had attempted to strangle herself with a strip of her chemise. The inquisitor hastened to her cell and found the poor creaturehiding under the bed. Interrogated as to her motives, she said that a woman who had falsely accused her husband and only daughter, as also her mother and an aunt, did not deserve to live, whereupon she revoked her whole confession, both as to herself and others. As arevocante, the pitiless rules of the Inquisition doomed her to the stake; her fears triumphed and, on July 28th, she confirmed her confession of April, except as regards her husband. On November 29th she was condemned to reconciliation, confiscation and prison with the sanbenito, and she appeared in the auto of June 23, 1647.[1603]The Roman Inquisition was somewhat less inhuman and did not require husband and wife to testify against each other.[1604]
It naturally followed from all this that, in the Spanish Inquisition, the rule was observed that, where heresy was concerned, all witnesses were admissible, no matter how infamous. Excommunicates were not rejected and it would appear that even the insane were regarded as competent for, in 1680, Thomas Castellanos, on trial in Toledo, confessed to being a Lutheran, an atheist and to other heresies, for which he was charitably sent, not to the stake, but to an asylum, yet he was received as a witness against Angela Pérez, as to her utterances to him while in prison. He was duly sworn by God and on the holy cross although, if sane and an atheist, there could be no force in such an oath.[1605]In short, the only incapacity of an accusing witness, was mortal enmity. All other exceptions known to the secular law—minority, heresy, perjury, infamy, complicity, conviction for crime—were disregarded, although they might affect his credibility. Mortal enmity was difficult of definition, but the doctors were liberal enough in admitting to the benefit of the term any quarrel of a serious character, but proof was rendered difficult by refusing to receive evidence concerning it from any one within four degrees of kinship or affinity with the accused.[1606]
WITNESSES FOR DEFENCE
It is true that some precautions were prescribed to guard against the admission of worthless testimony, but their very enunciation proves how unscrupulous was the current practice.
In 1516, the Suprema cautioned the tribunals that, when the veracity of a witness was doubtful, his testimony must be verified and, in 1543, it was ordered that the character of witnesses must be recorded so as to serve as a gauge of the weight of their utterances.[1607]There was also the formality used with all witnesses in commencing their examination by interrogating them on what were called thegenerales de la ley, as to their knowledge of the parties to the case and any enmity or other matter that might prejudice their testimony, the answers to which were always of course satisfactory. In the long run, however, all this, like most other matters, was left to the discretion of the tribunals which, in practice, admitted every body and used their evidence without discrimination.
This applies solely to the witnesses for the prosecution. When we turn to the defence, the contrast between the scandalous laxity of the rules prescribed for the former, and the equally scandalous rigidity of those applied to the latter, is the clearest proof that the object of the Inquisition was not justice but punishment. Throughout the whole judicial system the vital principle was that it were better that a hundred innocent should suffer than that a single guilty one should escape. Even the formula of the oaths administered to the two classes, in 1484, shows how early the distinction was drawn between them. The witnesses for the prosecution only received a solemn warning from the inquisitor, while those for the defence were sworn under the most terrible adjurations to God to visit, on their bodies in this world and on their souls in the next, any deviation from the truth.[1608]
The rules as to witnesses admissible for the defence were carefully drawn so as to exclude all who were likely to be serviceable to him, on the ground that their evidence would be untrustworthy, the inquisitor thus being sedulously guarded against misleading in favor of the prisoner, while he was trusted to discriminate as to the adverse testimony. Thus no kinsman to the fourth degree was allowed to testify for the defence, even when the accused was blindly striving to prove enmity on the part of those whom he conjectured to be the opposing witnesses. No Jew or Morisco or New Christian could appear for him, although they were welcomed for the prosecution, and the same distinction applied to servants. As formulated in the Instructions of 1561,the accused was told that he must not name as his witnesses kinsmen or servants, and that they must all be Old Christians, unless his interrogatories be such as cannot otherwise be answered, and Pablo García adds that, under such circumstances, he must name a number from among whom the inquisitor may select those whom he deems most fit. It became, indeed, a commonplace among the authorities that witnesses for the defence must be zealots for the faith—zelatores fidei.[1609]Yet, in fact, all this is of interest rather as a manifestation of the pervading spirit of the Inquisition than from any practical influence which it exercised on the outcome of the trials for, as we shall see, the simulacrum of defence permitted to the accused was so limited that in but very few cases did it matter whether he had or had not any witnesses.
Prosecutions of course were not to be impeded by reluctant or recalcitrant witnesses. The tribunals had full power to summon them and to punish them for refusal. When they resided at a distance, it was discretional either to have them examined by a commissioner, appointedad hoc, or to make them appear in person. In 1524 Cardinal Manrique even decided that they could be brought from Aragon to Castile although, as we have seen, this violated the fueros of Aragon, which forbade that any one should be forced to leave the kingdom.[1610]The official summons requires the witness to present himself before the tribunal, within a specified number of days, under pain of ten thousand maravedís and excommunicationlatæ sententiæ, this censure being pronounced in advance with notice that, in case of disobedience, it would be published and he would be proceeded against according to law. The summons was to be served with the utmost secrecy and, like all other documents, was to be returned to the tribunal with an endorsement of the date of service.[1611]
EXAMINATION OF WITNESSES
Witnesses were compelled to give evidence and were liable topunishment if suspected of withholding it. In Doctor Zurita’s report of his visitation of Gerona and Elne, in 1564, it appears that he arrested Maestre Juan Fregola, canon of San Martin of Gerona, because he said that he did not remember a matter at issue; his memory was thus refreshed and he was released on giving the desired evidence.[1612]This continued to the end. In 1816, the Suprema, in confirming the vote of the tribunal of Cuenca to continue the case of Antonio Garcés, adds that it must take the necessary steps against the witnesses who refuse to testify.[1613]
The examination of witnesses for the prosecution was a duty of the inquisitors. It was one, however, that they threw upon the notaries, who were ordered by the Suprema, in 1498, not to take testimony except in presence of the inquisitors, while Cardinal Adrian, in 1522, said that, if the latter were too busy to be present, they must at least read the testimony before the departure of the witness and make the necessary re-examination.[1614]All this argues a very loose and slovenly system, in a matter of such primary importance, inherited doubtless from the early time, when the rush of prosecutions precluded all but the most superficial conduct of business. In that period there had been devices for the division of labor, for we hear of an official, in 1485, known as the receiver of witnesses, and of payments made to clerics whose presence was essential in the taking of testimony—devices which were abandoned about the close of the century.[1615]As business declined, the inquisitors seem to have taken a more active part in the examination of accusing witnesses, except towards the end, when indolence led them to issue commissions to conduct interrogations.
It was the rule that all examinations should take place in the audience-chamber, except in extreme urgency, when the inquisitors might hold them in their apartments or houses—a rule of which the Suprema had to remind them, in 1538, and again in 1580.[1616]Witnesses were sometimes sworn in groups, but wereexamined separately as a prudent precaution against collusion.[1617]When theestilohad been perfected, there was a prescribed form for commencing the interrogatory, by first asking the witness whether he knew or presumed the cause of his summons; this was usually answered in the negative, when the next question was whether he knew or had heard that any person had said or done anything which was or appeared to be contrary to the faith, or to the free exercise of the Inquisition. This had the appearance of careful abstention from guiding him but, if he persisted in the negative, the interrogatory rapidly assumed the aspect of letting him know for what he was wanted and what was expected of him. Thus in the trial at Barcelona, in 1698, of a woman named Ignacia, for sorcery, Jaime Guardiola asserted that he knew little except that he had forbidden her his house, when Inquisitor Valladares told him that the Inquisition had information of his having employed her on several occasions which he described, wherefore he adjured him, in the name of God and his Blessed Mother, to examine his memory and tell the truth.[1618]Sometimes the inquisitor went further and openly threatened a witness, warning him, by the reverence due to God, to tell the truth and not to make the prisoner’s case his own.[1619]The Suprema might well restrain the excessive zeal of its subordinates by instructing them not to intimidate witnesses or to treat them as if they were the accused parties.[1620]
EXAMINATION OF WITNESSES
While thus with unwilling witnesses the inquisitor acted as counsel for the prosecution, with those who were willing he made no attempt to ascertain the truth of their stories. He asked leading questions without reserve and abstained from any cross-examination that might confuse the story and expose mendacity. When, in the trial of Juan de la Caballería, at Saragossa, in 1489, his procurator asked that certain interrogatories which he presented should be put to the witnesses, the inquisitors roughly refused, saying that it was their official duty to find out the truth for the discharge of their consciences.[1621]So long as witnesses incriminated the accused, as a rule there was no effort totest their accuracy or to obtain details of place and time or other points which would facilitate defence against false charges. In the case of Simon Nocheau, at Valladolid, in 1642, he succeeded in getting a series of interrogatories put to the witnesses which exposed discrepancies that it was the duty of the inquisitors to have discovered.[1622]Even the Suprema recognized the injustice of this, in the case of a priest whom the tribunal of Barcelona, in 1665, sentenced to imprisonment for “propositions,” and ordered it to recall the witnesses and cross-examine them so as to verify their testimony and also to investigate whether they were actuated by enmity.[1623]
To estimate the conscious unfairness of this it is only necessary to contrast it with the treatment of evidence presented by the defence. The handling of this was likewise wholly with the inquisitor. All that was allowed to the accused was to offer a list of witnesses and a series of interrogatories to be put to them. It was the duty of the inquisitor to summon the witnesses and put the questions, or to forward the interrogatories to commissioners for the same purpose, but he had full discretional power to omit what he pleased, both as to witnesses and questions. In fact, he received the interrogatories onlysalvo jure impertinentium et non admittendorum, and he exercised this power without supervision and without informing the accused or his advocate as to what he threw out. In 1572, Luis de Leon on his trial presented six series of interrogatories to be put to his witnesses of which three were calmly thrown out as “impertinent.”[1624]Not only was all knowledge of this concealed from the accused but also the answers of the witnesses to such questions as were permitted. It is true that, in 1531, even the Suprema revolted at this and ordered the evidence in favor of the accused to be submitted to him and to his advocate, so that it might not be said that he was deprived of defence, but injustice prevailed and the Instructions of 1561, in prescribing the suppression to the accused, gave as a reason for it that the accused might thus be prevented from identifying the adverse witnesses—thus showing how one denial of justice led to another.[1625]The witnesses for the defencewere further subject to cross-examination which, at least in the earlier period, could be conducted by the fiscal—an indecency almost incredible in view of the crippling restrictions placed on the defence.[1626]In fact the distinction recognized in the treatment of evidence for the prosecution and for the defence is epitomized in the instructions sent by Toledo, in 1550, to its commissioner at Daimiel, about taking testimony in the cases of some Moriscos of that place. He is not told to investigate the credibility of the mass of idle gossip and hearsay evidence gathered for the prosecution but, when examining witnesses for the defence, he is to cross-examine them strictly to ascertain what are the grounds for their assertions.[1627]
There was one formality, not peculiar to the Spanish Inquisition, designed to protect the accused from random or false accusations—the ratification which was required of witnesses after an interval had elapsed since their original depositions. This was occasionally of service and, if preserved in its original form, would have been a considerable safeguard in detecting perjury. It was conducted in presence of two frailes, known ashonestas personas, and the fiscal was not allowed to be present, a prohibition which Manrique was obliged to repeat in 1529.[1628]In the earliest period, ratification was frequently omitted, doubtless owing to the haste with which the Inquisition worked,[1629]but subsequently it was regarded as absolutely essential. Its importance was shown by making it an imperative duty of the inquisitor himself to take the ratification, either summoning the witnesses or going to them, but this was difficult of enforcement. Cardinal Adrian, in 1517, declared that ratification before a commissioner nullified the whole proceedings, yet orders were required in 1527 and again in 1532 to make inquisitors perform the duty, and finally the attempt was abandoned and commissioners were everywhere employed.[1630]
RATIFICATION
As a rule, no evidence could be used that was not ratified, and I have met with not a few cases—one as late as 1628—which were suspended and the accused were discharged because the witnesses were not to be found when wanted for that purpose.[1631]This arose from the fact that in strictness ratification was not to be made till immediately before the so-called “publication of evidence” which was the concluding step of the prosecution, involving a considerable interval during which the witnesses might die or disappear.[1632]To avert this, relaxations of the requirement of ratification were gradually introduced. In 1533, 1543 and 1554 the Suprema inferentially admitted that when witnesses were absent or dead their testimony could be used if the fact was noted on the record.[1633]There were authorities who held this to be the case in Aragon and it was so practised, but elsewhere opinions varied.[1634]
Finally a successful device was invented of two forms of ratification, one “ad perpetuam rei memoriam” and the other “en juicio plenario.” They were virtually the same except that in the former the witness was told that the fiscal would use his evidence in a prosecution to be brought hereafter, and in the latter that it was for a case on trial. It became customary always to obtain the ratification when the testimony was given and then, if a witness was accessible during the trial, the ratificationen juicio plenariowas superadded. At what time this expedient was adopted it would be difficult to say, but it was probably about the middle of the seventeenth century; the earliest use of it that I have met occurs in 1650, in Mexico, where it seems already to be customary.[1635]
While this ostensibly retained for the accused the protection of ratification, it destroyed whatever value there was in a prolonged interval between the original deposition and its confirmation.At first a delay of four days was ordered for the formad perpetuam, which seems to have been considered sufficient to excite the conscientious scruples of a possible perjurer.[1636]Even this was subject to the exigencies of the prosecution. An elaborate series of instructions to commissioners, about 1770, informs them that there should be four days’ interval if possible, but if a witness is dying or about to absent himself, ratification may be immediate.[1637]In a case in 1758 ratification is ordered to be taken after waiting three hours; in others, in 1781 and 1795, after twenty-four hours; in another, in 1783, it is recorded that twenty-eight hours were allowed to elapse, all of which shows how purely formal was the whole business.[1638]