A History of the Inquisition of Spain; vol. 2

by Henry Charles Lea

This, at least in appearance, removed one of the most repulsive features of the pure inquisitorial process, as the judge was no longer a party to the case and could affect a semblance of impartiality, even though he were, in reality, the instigator of the prosecution. When the Holy Office was established in Castile, it assumed to be merely the continuance of the Old Inquisition; in its collections of privileges it included papal thirteenth century bulls, along with the modern ones, and the ferocious laws of Frederic II with the cédulas of the Catholic kings.[1399] Yet it knew so little of the older formulas and procedure that it adopted those of the secular and spiritual tribunals of the period, and thus its practice assumed the external form of accusatio rather than of inquisitio, with a fiscal, or public prosecutor, as an accuser. While, on the surface, this was a step towards fairness and justice, care was taken that the interests of the faith should not suffer. It gave to the inquisitors the assistance of a trained lawyer, whose business it was to prove his charges, who lost no opportunity of exaggerating the offences imputed to the accused, who assumed that they had been proved, who resisted all the efforts of the defence to disprove them, and who was free from all the penalties and responsibilities of an accuser. The form of sentence, adopted at the beginning and steadfastly adhered to, asserts that the judges have been listening to a case pending between the fiscal and the defendant, and they find that the fiscal either has proved his charges completely or partially, or that he has failed to do so.[1400] This was an assumption perfectly false and intended to deceive the people when read in an auto de fe.

It was the inquisitors who gathered testimony. The Instructions of 1484 expressly order the examination of witnesses to be made personally by an inquisitor and not to be committed to a notary, unless the witness is too sick to appear and it should be indecent for the inquisitor to go to him, when he could empower the ecclesiastical judge to perform the duty with a notary.[1401] Business was too pressing, however, for the inquisitors always to examine witnesses and they frequently deputized persons to act for them, but those deputies were never the fiscal, and the apologetic tone of the commission shows that it was irregular and demanded an excuse.[1402] As time went on, the tendency to shirk the labor increased; the notaries were allowed to examine, by the Instructions of 1498, provided it was in presence of the inquisitor; then this condition was neglected, in spite of vehement remonstrance by the Suprema, and finally, in the later period, when there was little serious work to be done, special commissions, as we have seen, were common, apparently with no greater excuse than the indolence of the inquisitors.[1403]

USE OF THE FISCAL

Still, the fiction was preserved that the witnesses were presented by the fiscals, although the Suprema, in 1534, informed them that it was no part of their duty to collect evidence, although if they obtained any, they were to communicate it to the inquisitors.[1404] Their duties, in fact, in addition to seeking the condemnation of the accused, were those of a superior clerk of the court—to draw up accusations, to conduct correspondence, to advise the inquisitors, to marshall the evidence, to keep the records in order or to see that the secretaries did so, to attend to the execution of sentences, and to exercise a general supervision over the officials, besides attending the meetings of the junta de hacienda and looking after the financial interests of the tribunal.[1405] The fiscal, moreover, served a useful purpose as a bogey to frighten the accused, who were constantly threatened with what would happen if they did not confess before he was admitted to present a formal accusation, in which he customarily demanded torture and relaxation for them—but, after all, his chief use was to preserve the fiction that the prosecution was an action between parties. As Simancas says, even when the culprit confesses, the fiscal must present an accusation, in order that a judgement may be based on accuser, accused and judge.[1406] In short, he was simply one of the officers of the court who, as a trained lawyer, gave to the inquisitors, who were apt to be theologians, the benefit of his legal knowledge. His only real position as a party to an action was a distinct disadvantage to the accused for, in case of acquittal or of a sentence which he deemed too light, he had the right, not infrequently exercised, of appealing to the Suprema, and consequently his assent to the decision was necessary. As his dignity gradually increased, he was classed among the judges by the Córtes of Aragon in 1646;[1407] we have seen how he finally came to be known as “inquisitor-fiscal” and how his place was generally filled by one of the inquisitors, who, however, abstained from the final vote on the case. The fiscal, indeed, from an early period was admitted to the consulta de fe, where he could state facts and advance arguments—a most indecent privilege—though he was required to depart before the vote was taken. In 1660 this was discontinued, not in consequence of its shocking incongruity, but because there was a troublesome question of precedence between him and the episcopal Ordinary, whose duty it was to be present.[1408]

There was nothing in the function of the fiscal to prevent the inquisitor from initiating proceedings on the strength of any rumors that might reach him, or of compromising evidence gathered from the confessions of others. He had not to wait for the fiscal’s action, but could order an inquest to be made and testimony to be taken and, when this was done, it was given to the fiscal to be put into shape for the formal prosecution. No matter how upright might be the inquisitor, the mere fact that he had ordered an arrest and trial necessarily committed him to belief in the guilt of the accused; he was unconsciously prejudiced from the start and to acquit cost a greater effort than to convict. Thus although externally the form of procedure was accusatio, in reality it was inquisitio, and the injection of the fiscal as accuser only diminished the chances of the defence, by giving the inquisitors a skilled legal assistant in the conduct of a prosecution, in which they were all prosecutors.

Yet, whatever we may think of the morality of the inquisitorial process, there can be no doubt as to its efficacy. In studying the long and minute records of the trials, where every detail is set forth in writing, it is instructive to see how often the accused, who commences by boldly asserting his orthodoxy, comes in successive audiences to make some admission of which advantage is skilfully taken and gradually the denial breaks down, or perhaps yields to the terrors of the accusation and the publication of evidence, ending in complete confession and eager implication of kindred and friends. The situation of the accused, in fact, was helpless. Standing up alone before the stern admonitions of the trained and pitiless judge; brooding in his cell, cut off from all external communication, during weeks or months of interval between his audiences; apparently forgotten, but living in the constant uncertainty of being at any moment summoned to appear; torturing his mind as to the impression which his utterances might have made, or the deductions drawn from his admissions or denials; balancing between the chances of escape, by persistent assertions of innocence, and those of condemnation as an impenitente negativo, and urged by his so-called advocate to confess and throw himself on the mercy of the tribunal—it required an exceptionally resolute temperament to endure the prolonged strain, with the knowledge that the opponent in the deadly game always had in reserve the terrible resource of the torture-chamber. The whole course of the procedure was based on the assumption that the accused was guilty; that it was the province of the tribunal to induce or compel him to confess his guilt and, in the great majority of instances the assumption was correct. To those who regarded aberrations from the faith as the greatest of crimes before God and man, and their punishment as the most acceptable service that man could render to God, this presumption of guilt served to justify the cruelty of the procedure and the denial of all facilities for defence which, to those trained in the principles of English justice, seem the imprescriptible right of the accused, whether innocent or not.

THE INQUISITORIAL IDEAL

There can, indeed, be no doubt that, amid much greed and callous indifference to justice, there were men engaged in the service who deemed themselves to be doing the work of God and that their methods were merciful. The Inquisition was not as other tribunals which only punished the body; it asserted its high and holy mission to be the saving of souls. As the inquisitors of Valencia said, in 1536, to Miguel Mesquita, on his trial for Lutheranism, they required of him nothing but the truth and, if he had fallen into error, they sought to disabuse him and to cure his conscience so that his soul might not be lost.[1409]

The Instructions of 1561, which remained to the last the basis of procedure, are emphatic in cautioning inquisitors not to be led astray, either by the witnesses or by the confessions of the accused, but to determine all cases according to truth and justice; they must preserve strict impartiality for, if they lean to one side or to the other, they can readily be deceived.[1410] If we may believe the veteran inquisitor Páramo, the Holy Office was so conducted on this lofty plane as to be an unmixed blessing to the land. Its holiness, he says, is so conspicuous that there is no opening for hatred, favor, subornation, love, intercession, or other human motive. Every act is performed with such conscientiousness and regard for equity and justice; the inquisitors so investigate everything, undisturbed by the multitude, that they inspire all men with dread of the crimes which are brought before them and, in the all-pervading silence, they act with incredible conscientiousness. The evidence of witnesses is scrutinized in the light of their character and quality and those who are found to bear false-witness are most severely punished. The accused, while detained in the prisons, are treated kindly and liberally, according to their condition; the poor and the sick are abundantly furnished with food and medicines, at the expense of the fisc, and are favored in every way. Not only are the utterances of witnesses investigated with distrust but, as Time is the revealer of truth, cases are not hurriedly finished but are prudently prolonged, as is requisite when there is such peril of the life, fame and property, not only of the accused but of his kindred. If his innocence appears probable, every effort is made to prove it and, if it is proved, to avert from him any loss of reputation, for which reason he is carried on horseback, adorned with laurels and palms like a victor in a triumph—a spectacle inspiring to the souls of the timid, depressed by the severity with which the guilty are punished. Those who are restored from such peril to their former condition never cease to thank God for placing on earth a tribunal of which the chief care is to uphold the honor of the innocent. When inquisitors punish heretics it is not with the desire to destroy them, but that they shall be converted and live. In judging and chastising, the Holy Office labors to amend him whom it punishes, or to benefit others by his punishment, so that they may live in security when the wicked are removed.[1411]

To what extent this idealization of inquisitorial methods was justified, we have had some opportunity to see, and we shall have more.