A History of the Inquisition of Spain; vol. 2

by Henry Charles Lea

CHAPTER II.
THE INQUISITORIAL PROCESS.

IN considering 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 the sumaria or dossier of incriminating evidence, opened the trial by interrogating the accused and assuming his 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 prosecutions in absentia though, 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 courts were 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. Prosecution in absentia, however, was allowed; after three summonses of nine days each, the accused could be prosecuted in 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 an audiencia 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 the witnesses 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 abjure de 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.