THE THREE MONITIONS
After the Instructions of 1561, the three monitions became the established rule in cases of heresy, while one sufficed in lightermatters. The formula was formidable. The accused was told that, in the Holy Office, no one was arrested without sufficient evidence of his having done or witnessed something contrary to the faith or to the free exercise of the Inquisition, so that he must believe that he has been brought hither on such information. Therefore, by the reverence due to God and his glorious and blessed Mother, he was admonished and charged to search his memory and confess the whole truth as to what he feels himself inculpated, or knows of other persons, without concealment or false-witness, for in so doing he will discharge his conscience as a Catholic Christian, he will save his soul and his case will be despatched with all speed and befitting mercy, but otherwise justice will be done. At intervals a second and a third monition were given, the last one ending with the warning that the fiscal desired to present an accusation against him, and it would be for his benefit, both for the relief of his conscience and for the favorable and speedy despatch of his case, if he would tell the truth before its presentation, as thus he could be treated with the mercy which the Holy Office was wont to show to good confessors; otherwise he was warned that the fiscal would be heard and justice would be done.[107]
This brought an exceedingly effectual pressure to bear upon the anxious prisoner, especially when the system of delay, whether calculated or merely procrastinating, left him for months, and perhaps years, to lie in his cell, shut out from the world, brooding over his fate, and torturing himself with conjectures as to the evidence so confidently assumed to be conclusive against him. He was simply admonished to discharge his conscience, being kept in the dark as to the crimes of which he was accused, and left to search his heart and guess as to what he had done to bring him before the terrible tribunal. This had the further utility that in many cases it led to confession of derelictions unknown to the prosecution, his impassible judges coldly accepting his revelations and remanding him to his cell with fresh adjurations to search his memory and clear his conscience.
This cruel device of withholding all knowledge of the charge appears to have been introduced gradually. In some cases, of about 1530, slight intimations of the nature of the accusation are given, but by 1540 complete reticence seems to be general. Therewas no formal instruction prescribing it, but it became the universal custom, based perhaps on the principle that the confession, like that to a priest, to be trustworthy must be spontaneous, showing the change of heart and conversion which alone could render the culprit worthy of mercy. Yet, towards the end of its career, under Carlos III and after the Restoration, the Inquisition occasionally granted anaudiencia de cargos, in which the accused was apprized of the charges against him and, in trivial matters, this frequently took the shape of summoning him under some pretext that would save his reputation, informing him of the alleged offences and, after hearing his explanations, determining what course to pursue. Even in so serious a matter as the celebration of mass by a married layman, the Santiago tribunal, in 1816, after throwing Angel Sampayo into the secret prison, gave him an audiencia de cargos before proceeding further.[108]
How systematic reticence sometimes succeeded is indicated by the case of Angela Pérez, before the Toledo tribunal in 1680. After lying in prison for eleven months she asked an audience, May 19th, to inquire why she had been brought to Toledo. She was admonished that she had already been told that no one was arrested who had not said or done something contrary to the faith; if she wished to discharge her conscience she would be heard, and, on her asserting that she had nothing to confess, she was sent back to her cell with an admonition to think it over and discharge her conscience. On June 13th she sought another audience, for the same purpose and with the same result. Then, on June 22d she was transferred from thecarceles mediasto the secret prison and, on the 25th, she obtained another audience in which she entreated the inquisitors, in the name of the Virgin, to bring the charges, but all that she obtained was to have her genealogy taken and to receive the first monition. To this she replied that she had nothing to confess and wanted her case despatched as she had been thirteen months in prison. The implacable methods of the Inquisition triumphed, however, for the next day she sought an audience in which she confessed that for eight years she had observed the Law of Moses.[109]
THE ACCUSATION
Even more suggestive, though in a different way, is the Mexican case of the priest Joseph Brunon de Vertiz, who was one of thedupes of some women pretending to have revelations. They were all arrested and he was thrown in prison September 9, 1649. In repeated audiences he vainly sought to learn the charges against him; he fairly grovelled at the feet of the inquisitors; he made profuse statements of everything concerning himself and his accomplices; he submitted himself humbly to the Church and was ready to confess whatever was required of him, but all to no purpose. The strain proved too great for a mind not overly well-balanced, and it began to give way. The first symptoms were complaints of demoniacal possession, followed, after an incarceration of two years and a half, by his writing a paper full of the wild imaginings of a disordered brain, in which he denounced the Inquisition as a congregation of demons and the Jesuits as the most detestable enemies of God. Then he lay in his cell for more than two years, until, July 23, 1654, he presented another incoherent paper. Finally he died, April 30, 1656, after more than six and a half years of imprisonment, without ever learning of what he was accused. His body was thrust into unconsecrated ground and the prosecution was continued against his fame and memory. On May 11, 1657, the fiscal at last presented an informal accusation for the purpose of summoning the kindred to defend the case; on October 22, 1659, more than ten years after the arrest, the formal accusation was presented and, as defence was impracticable, Brunon de Vertiz was condemned and his effigy was burnt in the auto de fe of November of the same year.[110]
When, in the third monition, the accused was warned that, if he did not confess, the fiscal would present an accusation, there was implied deceit for, whether he confessed or not, the trial went on in its inevitable course. It was usually in the same audience, after he had replied to the monition, that the fiscal was introduced with the accusation, to which he swore and then retired. This formidable document was framed so as to be as terrifying as possible. In cases of heresy it represented that the accused, being a Christian baptized and confirmed, disregarding the fear of the justice of God and of the Inquisition, with great contempt for religion, scandal of the people and condemnation of his own soul, had been and was a heretic, an impenitent, perjured negativo andfeigned confessor; that he had committed many and most grievous crimes against the divine majesty and the free exercise of the Inquisition, and was a fautor and receiver of heretics. Then followed the recital of the acts developed by the evidence, arranged in articles, reduplicated and exaggerated and presented in the most odious light. Besides this he was a perjurer, by refusing to confess in the audiences, after swearing to tell the truth, from which it was presumable that he was guilty of other and greater crimes, of which he was now accused generally and would be specifically in due time. Wherefore the fiscal prayed that the accused should be found guilty of the crimes recited, condemning him to confiscation and relaxing his person to the secular arm and declaring him to have incurred all the other penalties and disabilities provided by papal letters, instructions of the Holy Office, and pragmáticas of the kingdoms, executing them with all rigor so as to serve as a punishment for him and an example to others. After this followed the terrible clause, known as theOtrosi, demanding that he be tortured as long and as often as might be necessary to force him to confess the whole truth.
One thoroughly unjustifiable feature of the accusation was that, if there was evidence of other misdoings of the accused, wholly outside of the jurisdiction of the Inquisition, they were inserted because, as the Instructions of 1561 remark, they serve as an aggravation of his heresies and show his unchristian life, whence may be derived indications as to matters of faith.[111]
As soon as the accusation was read, it was gone over again, article by article, and the accused, while still confused by its menaces, taken at advantage, wholly unprepared and without assistance of any kind, was required to answer each on the spot, his replies or explanations being taken down by the secretary as part of the record of the case. After this he was told to choose an advocate to aid in his defence.
THE ADVOCATE FOR THE DEFENCE
The custom of allowing counsel in criminal cases is so comparatively recent in English law that their admission by the Inquisition may be regarded as an evidence of desire to render justice. In Spain, however, it was customary, and defendants too poor to retain them were supplied at the public expense. In the royalchancellería, as organized by Ferdinand and Isabella, there were twoabogados de los pobres.[112]In the medieval Inquisition, during its earlier centuries, counsel were not allowed to the accused and it became a settled principle of the canon law that advocates who undertook the defence of heretics were suspended from their functions and were perpetually infamous.[113]Towards the close of the fifteenth century, however, in witchcraft trials, we find advocates admitted, but under the strict limitations that we shall see in Spain, and those who showed themselves too zealous in defence of their clients were subject to excommunication as fautors of heresy.[114]
When the Spanish Inquisition was founded, it was therefore a matter of course that the accused should be allowed the assistance of trained lawyers and not only this but of procurators, who attended to the business of the defence, performing the functions, in some sort, of the English solicitor, while theletradorepresented the barrister and drew up the argument. In a number of trials at Ciudad Real, in 1483, there appears to have been considerable freedom of choice, the accused selecting both advocates and procurators. During the persecution at Guadalupe, in 1485, the defendants were mostly represented by Doctor de Villaescusa as advocate and by Juan de Texeda as procurator, and the arguments in defence were well and forcibly presented.[115]This was in accordance with the Instructions of 1484, which order that if the accused shall ask for an advocate and procurator, the inquisitors shall grant the request, receiving from the advocate an oath to assist him faithfully, without cavils or malicious delays, but that if, at any stage of the case, he finds that his client has not justice on his side, he will help him no longer and report to the inquisitors; if the accused has property, they shall be paid from it, but if he has none they shall be paid out of other confiscations, for such are the orders of the sovereigns.[116]Yet this liberality was nullified by the clause requiring advocates tobetray their clients, thus destroying all confidence between them and fatally crippling the defence. It was, however, in accordance with the ethics of the age, and we shall see how it developed in a manner to render illusory the services of the advocate.
It would seem that the tribunals sometimes chafed under these rules and asserted discretion to disregard them for, in the case of the priest, Diego García, in 1488, when he was told to select an advocate and a procurator, the fiscal refused consent, and he had to conduct his own defence, though, at a subsequent stage of the trial, Diego Tellez appeared for him.[117]It was possibly in consequence of such cases and of other impediments to the defence, that the Suprema issued a provision that all prisoners should be allowed to take a procurator and advocate, provided they were fitting persons. Also that the children and kindred of the accused should not be prohibited from consulting as freely as they pleased with the counsel, and that he should have copies of the accusation, the depositions of the witnesses and other papers in conformity with the Instructions.[118]All this, which was demanded by the simplest demands of justice, became, as we shall see, a dead letter.
OFFICIAL ADVOCATES
That the danger awaiting a too zealous advocate was not purely hypothetical is seen in the case of Casafranca, deputy of Ferdinand’s treasurer-general of Catalonia, who was burnt in the auto de fe of January 17, 1505, and his wife in that of June 23d; his father-in-law had been reconciled and his mother, after condemnation, died in the secret prison. Francisco Franch, the royal advocate-fiscal, had defended Casafranca, and the Inquisition prosecuted him for his unsuccessful attempt to avert his client’s fate, although at that time he had risen to the position of Regent of the royal Chancellery. Ferdinand, who felt much interest in his behalf, made Inquisitor-general Deza write in his favor to Francisco Pays de Sotomayor, an inquisitor specially deputed to hear the case, but this did not save him from bitter humiliation and dishonor. February 28, 1505, Sotomayor pronounced sentence in which his offence was described as endeavoring to induce a witness to revoke his testimony, and as impeding the Inquisition by useless and procrastinating delays, by which he had incurred excommunication, and moreover he was guiltyof perjury by asserting a false and erroneous conclusion, for all of which he had humbly begged pardon and mercy. After obtaining absolution from a priest he was to stand the next day before the high altar of Santa María de Jesu during mass, with a lighted candle, in penitential guise, and forfeit all payment for his services—which would have come out of Casafranca’s confiscated estate. Both he and the fiscal accepted the sentence, but there was delay in his public penance, for he refused to utter certain words interlined in the sentence, which he asserted had been inserted since it was read to him. The fiscal threatened to appeal to the inquisitor-general and demanded that Franch be detained in prison until the appeal was decided, whereupon he yielded and the ceremony was performed on March 1st.[119]
When the efforts of counsel in behalf of their clients were thus effectually discouraged, nothing but the most perfunctory services could be expected from them, and the inquisitors need apprehend little trouble. Even this, however, was thought to give the accused too much chance, and all risk of inconvenient zeal was averted by depriving him of the right to select his defender and confining the function to one or two appointees of the tribunal, who could be relied upon to favor the faith. The first intimation of this policy comes in the memorials of Jaen and Llerena in 1506, which complain bitterly that the inquisitors refuse to allow the accused to select their advocates and procurators, forcing them to take such as they appoint who will do their bidding. The Jaen memorial describes them as enemies of the people, who desire arrests to be multiplied, as they charge three thousand maravedís in every case which, for the two hundred prisoners, amounts to six hundred thousand.[120]This abuse, probably originating with Lucero, was so conformable to the tendencies of the Holy Office that it gradually became the rule. In 1533, one of the petitions of the Córtes of Monzon was that prisoners should be allowed to select their advocates and procurators, and to this no direct answer was made.[121]In 1537 theabogados de los presoswere already recognized as officials appointed by the tribunals. They were exclusively entitled to conduct the defence and, in1540, the Suprema, in reply to a petition, said that, if the party desired a different advocate, it could only be on condition that he should act in consultation with the official one. Even this poor privilege was withdrawn for, in 1562, Valdés decreed that the official counsel should communicate with no other advocate.[122]It is true that, in 1551, the Suprema had admitted that, if the tribunal had not been able to find a fitting lawyer for appointment, the accused could select one, but this was merely yielding to necessity.[123]
The chief qualification for anabogado de los presoswas his limpieza and that of his wife; his subservience to the tribunal was assured by his dependent position, but, to render this more absolute, about 1580 the Suprema ordered the Lima tribunal—and probably all others—to make its advocates familiars, an office which bound them to the strictest obedience.[124]Allowing for natural exaggeration, there is probably truth in the description given, in 1559, by Antonio Nieto, a prisoner in Valencia, to his cell-mate Pedro Luis Verga, who, after his first audience, was felicitating himself on Inquisitor Arteaga’s promise to give him an advocate and a procurator. Nieto told him not to count upon it for, though the inquisitor might give him an advocate he would give him nothing good, but a fellow who would do only what the inquisitor wanted and, if by chance he asked for an advocate or a procurator not of the Inquisition, they would not serve for, if they went contrary to the inquisitor’s wishes, he would get up some charge of false belief or want of respect and cast them into prison.[125]
FUNCTION OF THE ADVOCATE
The advocate thus became one of the officials of the tribunal, duly salaried and working in full accord with the inquisitors. In 1584, we find him of Valencia petitioning to have a place assigned to him in the autos de fe, where he could be recognized as such and, at his ease, see his clients sentenced. The petition was granted and he was allotted the last place among the salaried and commissioned officers.[126]This became the established rule, but in time professional dignity was wounded at thus being relegated to a position inferior to the messengers and apparitors and gaolers.
In Valladolid and Granada the advocates obtained promotion to outrank the physicians and surgeons and, in 1670, the Licentiate Juan Márquez, advocate in the Seville tribunal, addressed to the Suprema a formidable memorial of seventy-five quarto pages of text and fifteen of index, representing the slight thus put upon them, and setting forth the dignity of the legal profession, the respect due to its learning and, as regards the advocates of prisoners, the confidential position occupied and the fidelity with which they served the tribunals. It seems never to have occurred to him to put forward a claim based upon fidelity to their clients.[127]
In fact, the so-called advocate was simply an official instrument for securing confession and conviction, for which his ostensible position of friendly adviser gave him peculiar opportunity. No communication between him and his client was allowed, except in presence of the inquisitors and of the secretary, who made record of all that passed between them, thus keeping watch to see that he performed his duty. It is true that he was sworn to defend the prisoner with all care and diligence and fidelity, if there was ground for it, and if not to undeceive him, but his real duty is described as urging the prisoner to confess fully as to himself and others, and to throw himself upon the mercy of the tribunal, for by denial he would only prejudice his case and suffer in the end.[128]How any deviation from this was treated, appears in the case of Benito Ferrer, in 1621, before the Toledo tribunal. In the consultation, his advocate Argendona suggested some points of defence displeasing to the inquisitors, who promptly ordered him out of the audience-chamber and sent Benito back to his cell to refresh his memory and discharge his conscience, and two days later Argendona had to put in the written defence without further opportunity of conference. The Licentiate Egas had a more accurate conception of his duty, when serving as advocate for Isabel Reynier, tried, in 1571, for Protestantism in Toledo. The official record states that, after unavailing efforts to induce her to confess, he asked whether she had any enemies to disable, on which he could frame a defence, when she named several, but, as the Señores Inquisidores wanted to despatch the case, he told her that this would avail her nothing, for there wasno presumption that enmity had caused false-witness, and he went on to persuade her that she had already confessed enough to render her case hopeless. The impatience of the inquisitors was gratified, for the unfortunate woman was sent to the stake without Egas troubling them by putting in a written defence.[129]
The old rule remained in force forbidding the advocate to defend an impenitent heretic. It made no difference of course in the result, but still permission to do so would have saved appearances. Such cases occasionally occurred, like that of Benito Peñas at Toledo in 1641, a harmless lunatic with some vague speculative heresies. His advocate, Juan Díaz Suelto, after a conference in which his client obstinately rejected his advice to forsake his errors and beg for mercy, reported that his efforts had been in vain, so that it was necessary for him to abandon the defence, in order not to incur the censures and other penalties imposed by the papal briefs, and also for the speedier despatch of the case.[130]Even as late as 1753, at Valencia, the same occurred in the trial of a swindling German named Horstmann.[131]
PROCURATORS NOT ADMITTED
If, even under these shackles, an advocate desired really to defend his client, he was deprived of the means to do so. Originally, as we have seen, the kindred and children were allowed freely to communicate with him, to furnish indispensable assistance and information, and to gather witnesses, and he was also supplied with copies of the depositions of the witnesses and other necessary papers. It seems to have been Lucero, the evil inquisitor of Córdova, who changed all this, for the memorials of Jaen and Llerena complain bitterly of such denial of justice, rendering nugatory all the means of defence, and depriving the kindred of all knowledge of the nature of the accusation.[132]It expedited business however and facilitated conviction, and its usefulness overcame all scruples. In 1522 Cardinal Adrian forbade all communication between the advocate and the children or kinsmen of the accused, and this prohibition was repeated until it became the invariable rule. In the same spirit, the only document, that he was allowed to have, was a copy of the publication of evidence, which was a very different thing from the originaldepositions. To repress all initiative on his part he was prohibited from putting forward any defence save what the accused might suggest, in their open consultations in the audience-chamber, or to call for any witnesses whom the latter did not name, and the inquisitors were instructed to punish any infractions of this rule because they were troublesome and impeded the course of business.[133]If an advocate was suspected of undue zeal, the inquisitors had a right to interrogate him as to the measures taken for the defence, the sources of his information and other details; the defence in every way was obliged to playcartes sur table, while the fiscal’s hand was carefully guarded, and only such knowledge was permitted as served to confuse and mislead. It would seem scarce likely, under such regulations, that advocates would be guilty of really assisting their clients, but to guard against such possible derelictions of duty, inspectors were ordered, when visiting tribunals, to inquire whether they defend the accused “maliciously” and employ cavils for delay and finally, whether or not they are necessary.[134]
At the same time, in its affectation of fairness, the Inquisition insisted on the accused having counsel. When, in 1565, Pedro Hernández was tried at Toledo for Calvinism, he confessed at once, professed conversion and begged for mercy. When told to select an advocate he refused, until informed that it was imperative for him to have one to conduct his defence. Of course this was a mere formality for he was duly burnt in the auto de fe of June 17th.[135]Inquisitors, moreover, were required to admit all documents offered to them, and to listen to any one who might have the hardihood to appear in favor of a prisoner.[136]
Simultaneously with the development of restrictions on the advocate, the disappearance of the procurator completed the system of enabling the inquisitor to control the defence as well as the prosecution. One of the latest references to the procurator is a regulation of 1545, which infers that, if the accused made application, the tribunal would grant him one, with the reservation that this did not entitle the kindred to aid in the defence.[137]This jealousy of outside assistance constantly increased and some tribunals, such as Seville and Córdova, commenced to refuse admission to procurators, except in prosecutions of the absent and dead; the kindred might suggest the names of witnesses to the inquisitor, who would summon and examine them. Finally Inquisitor Cervantes, when in 1560 he made a report on Barcelona, took the opportunity of pointing out the disadvantages of such representatives of the accused; through them, he argued, the case became known, they anticipate the witnesses before they give evidence, they are able to identify them and furnish to the accused reasons for disabling them. The Bishop of Avila, a member of the Suprema, promptly admitted the force of this, and declared that procurators ought no longer to be allowed. This opinion prevailed and, in the Instructions of 1561, their admission was forbidden, although in case of necessity, special powers might be given to the advocate.[138]They continued, however, to be appointed in trials of the absent and dead, where it was unavoidable. The Roman Inquisition did not follow this example of the Spanish and allowed the employment of procurators.[139]
THE CURADOR
Besides the advocate there appears in many trials a personage known as thecurador, or guardian, a living evidence of the fatherly care of the Inquisition toward the helpless. Following the traditions of the Roman law, Spanish jurisprudence provided that, in suits and actions involving those who had not attained the full age of twenty-five years, the assent of a curador, either permanent or temporaryad hoc, was necessary to validate the legal acts of the minor.[140]This provision, intended for the protection of the youthful and incapable, was retained in the practice of the Inquisition, because it was necessary to render valid the various compulsory acts of the accused in the successive steps of his trial, but in order that it might not by any chance be of value to him, and to preserve the secrecy of the Holy Office, the custom was adopted of appointing the advocate or preferably the gaoler, or messenger, or some other underling of the tribunal to serve as curador. As it was thus wholly subversive of the object for which the function was created,there is grotesque cynicism in the pompous formalities through which the curador was interjected into the proceedings. He took a solemn oath that he would diligently and faithfully defend his ward, alleging all that was to his advantage and preventing all that was injurious, advising with his advocate and doing all that a good guardian could do for a ward. And, if the latter, through his negligence, suffered injury, he pledged his person and property to make it good, giving as security another person (a fellow subordinate) who united with him in the liability, jointly and severally, renouncing all legal defence and placing themselves and all their possessions in the hands of the inquisitors.[141]Being thus a mere formality, or rather a deception, involving the perjury of those who took the formidable oath, it may be dismissed from further consideration, except to cite a case illustrative of the rigid formalism of procedure. In 1638, at Valladolid, Blanca Enríquez, on trial for Judaism, represented herself as twenty-two years of age and as usual was given a curador. She confessed to having been reconciled at Córdova, nine or ten years before; a vote in discordia carried the case to the Suprema, which discovered that her previous trial had occurred in 1623, when she was fifteen and consequently she was now thirty. The curador therefore had rendered the trial irregular, and the Suprema ordered it to be repeated from the beginning.[142]
There was another form of assistance allowed to the accused, when the questions at issue involved nice theological points, beyond the capacity of the ordinary advocates. Learned doctors were called in aspatrones teólogos, to aid the accused, after he had been heard in defence of his incriminated propositions. In ordinary practice, the propositions and his answers were read to them; to each one they said whether he had satisfactorily explainedit or not; or whether he ought to retract, or whatever other conclusion they might reach; then the whole was submitted to the calificadores, who pronounced their final censure.[143]Nominally the patrones were selected by the accused but in this, as in everything else, the Inquisition sought to control the defence. When, in 1574, Fray Luis de Leon was told that he could have patrones, he named four from various places. The Valladolid tribunal referred the nominations to the Suprema, which replied by asking whom it was accustomed to give from among its calificadores and, on being informed, ordered that the routine custom should be followed. Fray Luis’s protest that he did not want calificadores, who had already pronounced against him, was set aside; patrones were not meant to defend the accused in his heresies, but to undeceive him and tell him what he should believe. It is true that the Suprema finally receded from this position but, by a juggle continued for months, Fray Luis was forced to take a man whom he did not want, and who was only a new and disguised calificador; conference between them was denied, and the opinion which the patron rendered was withheld from him.[144]The wisest course for a theologian, in the hands of the Inquisition, was that adopted by Fray Thomas de Nieba, in 1642, when on trial at Valladolid for certain conclusions defended by him in scholastic debate. He refused both advocate and patrones, saying that he was subject to correction by the Church and by learned theologians, and he did not propose to defend the inculpated propositions.[145]
PUBLICATION OF EVIDENCE
We have seen that, after the accusation was read and answered, the prisoner was told to choose an advocate. Possibly two names were mentioned to him, both equally unknown; more often only a single name. He was not at liberty to refuse and, on his giving assent, the advocate, who had been kept in readiness in the antechamber, was called in. The proceedings up to that point were read to him, and he at once performed the duty of urging his client to confess. Whether successful or not in this, he stated that the next thing in order was to conclude; the fiscal was called in, who similarly announced that he concluded, and the inquisitorsnotified both parties of the conclusion. These formalities being over, the case was formally received to proof. The fiscal asked that his witnesses be ratified and publication of evidence be made.
Ratification, as we have seen, frequently caused considerable delay, until the device was invented of ratifying at the time of deposition. When the evidence was thus in proper shape, the next move was its so-called publication. This might or might not be the final step of the prosecution, for it never was precluded from bringing in new evidence, and there might be half a dozen or more successive publications, especially when a group of Judaizers were on trial and they broke down one by one and told what they knew about their associates. The effectiveness of this is illustrated by the case of Engracia Rodríguez at Valladolid, in 1643. After her case had apparently reached its end, the consulta de fe voted her to torture, which was duly administered, without eliciting a confession. Then from time to time came new publications of evidence, until her resolution gave way and, at the seventh publication, eleven months after her torture, she confessed to Judaism. She probably recognized that her kindred and friends were yielding, one after another and incriminating her, and that it was useless to resist longer, with the certainty—of which her advocate doubtless informed her—that persistence would indubitably end in her burning alive as an impenitentnegativa.[146]
As this publication of evidence was the only inkling afforded to the accused of what was the case against him, and as it was assumed to give him ample opportunity of defence, it is worth a little special consideration. We have seen that the pretext of protecting witnesses was held as justifying the suppression of their names and of all circumstances that might lead to their identification. Even under the most rigid construction, this crippled greatly the defence, but rigid construction of their powers was not common among the tribunals. When once it was admitted that portions of the evidence could lawfully be suppressed, the selection of what should be made known became largely discretional.
The endeavor to lay down rules for guidance as to this led to an infinity of instructions, more or less rigid or lax. In 1498, the Suprema called attention to the evils that had hitherto followed publication, wherefore in future care must be taken to omit allcircumstances giving a clue to the identity of the witnesses, and this was repeated in 1499.[147]Yet the glaring injustice of withholding from the accused a knowledge of details that might enable him to disprove the charges was recognized, but all instructions forbidding this were framed with an “if” that virtually authorized the wrong. For instance, the specification of time and place at which an act was said to have been performed was indispensable, if the accused were to have a chance of detecting false swearing, yet such details might possibly lead him to identify the witness, and these opposing reasons gave rise to a series of varying orders which indicate how the Suprema vacillated between the desire to secure the advantage and the consciousness of the wrong. In 1525 it condemned the practice of the Toledo tribunal in omitting time and place. It was difficult to make the inquisitors observe this and, in 1527, a general order was issued to state the evidence as the witnesses had given it, neither more nor less. In 1530 it made a concession by ordering that it should be consulted when there was “inconvenience” in stating the month or year. Then, in 1532, it laid down the positive rule that place and time and persons must be stated, for the principle that the witness must be protected was to be construed as preventing only direct recognition and not inferential. This was again modified, in 1537, when, while again ordering that all the evidence must be given, this was qualified by the old injunction to suppress all circumstances by which the witnesses could be identified. About 1560, some instructions to Barcelona order that the time should be stated, while place is to be indicated in such general terms as shall not betray the witness. Finally, in the definitive Instructions of 1561, time and place are ordered to be given, but at the same the omission is prescribed of all that may betray the witness. A caution that no evidence is to be used that is not in the publication gives a hint of other irregularities of even a more serious nature.[148]
The publication being a matter of supreme importance, it was the duty of the inquisitors personally to draw it up, and not entrust it to subordinates, least of all to the fiscal, who was technically the prosecutor. Orders to this effect were issued in 1529;they were repeated in the Instructions of 1561 but, in 1568, the Suprema was obliged to take the Barcelona tribunal to task for allowing the fiscal to do it, and a later writer informs us that inquisitors continued to shirk the labor and threw it upon the secretaries.[149]
The labor was doubtless great, when the witnesses were numerous and loquacious, and the delicate duty was apt to be recklessly performed by subordinates, fearful of rebuke if they allowed too much to be known. The custom was to give the evidence of each witness separately, as deposed by “a certain person” and, when practicable, to divide it up into articles, each covering a separate charge or fact. In this process the elimination of all circumstances that might give a clue to the identity of the witnesses was easy, and there was little scruple in misleading the defendant or in omitting whatever might be thought to weaken the case. In the publication read to Marí Gómez la Sazeda, when on trial at Toledo in 1544, the evidence of one witness is divided and represented as given by two, with the object, as noted on the margin, of preventing her from identifying him.[150]In the case of Gaspar de Torralva, before the same tribunal in 1531, the publication bears such notes as “the evidence of the seventh witness omitted,” “the evidence of the eighth witness omitted.”[151]There was no possible supervision or control over this; the discretion of the inquisitors was absolute and the prisoner was at their mercy.
PUBLICATION OF EVIDENCE
In many cases the publication was scarce more than a slovenly repetition of the fiscal’s accusation and afforded to the accused no possible aid in his defence, as in that given to Juan de la Barra, tried for Lutheranism at Toledo, in 1656.[152]When it was drawn up more elaborately, it became confusing in the highest degree. One reads the long array of the assertions, or the conjectures, or the gossip retailed by twenty-five or thirty witnesses, vaguely set forth as what a “certain person” said or thought about another certain person, with no specifications of time or place, and one wonders how the prisoner could even grasp it sufficiently to form any definite conception of the character and weight of the evidenceagainst him. And, with his life perhaps hanging in the balance, he was required to answer all this on the spot, article by article, and was closely cross-examined on his replies. That even an innocent man should compromise himself in the pitfalls thus cunningly laid for him was not unlikely, and yet this publication of evidence was represented as a special favor granted in view of the other restrictions imposed on the defence—a favor not always conceded in the secular courts.[153]
After this ordeal was passed the advocate was called in and furnished with the publication and the answers of the accused. The two conferred together, under the eye of the inquisitor and pen of the secretary; if the accused rejected the renewed advice of the advocate to confess and discharge his conscience, the plan of defence was concerted. What this was, as a rule, made little difference. When, in 1499, the inquisitors-general felt it necessary to instruct inquisitors that they must pay attention to the defences and exceptions alleged by the accused, it indicates how they were recognized as prosecutors rather than judges. Yet it was freely admitted that, in view of the limitations of the defence, they should be most zealous in considering whatever it presented.[154]
The defence was so perfunctory a routine that the systematic writers mostly dismiss it with the curt observation that its witnesses must be zealous Christians and in no way connected with the defendant. Simancas, however, treats it at greater length, and his enumeration of its possibilities shows how restricted they were. He admits at the start the legal maxim that it is impossible toprove a negative, which was virtually, in most cases, the task imposed on the accused. Then he proceeds to define what the defendant can do. He can call on witnesses to prove his religious character or to disable for enmity the opposing witnesses, or to show that at a certain time or place he did not say what was attributed to him. Then there are general pleas in abatement, extreme youth, second childishness, insanity, drunkenness, thoughtless speech, ignorance, jocularity, the pressure of fear under threats, or intense grief. Or he may recuse the judge, which should be referred to the Suprema and not to arbiters, who cause much delay.[155]