A History of the Inquisition of Spain; vol. 2

by Henry Charles Lea

THE CLAMOSA AND THE CONSULTA

At what period calificacion was introduced it would be difficult to say with precision. Llorente assures us that in 1550 it was not as yet in use.[1420] This is incorrect for, in 1520, we find the Suprema ordering that calificadores shall not be appointed without its consent and on the simple petition of aspirants.[1421] By that time the custom was evidently established and, in 1556, the Suprema explained it, not as a protection of innocence but as a means of placating the Ordinaries and showing them that inquisitors were not seeking to extend their jurisdiction beyond heresy.[1422] The Instructions of 1561 merely provide that, when there is sufficient testimony in a case pertaining to the Inquisition, if it requires calificacion, theologians of approved learning and character shall be consulted, thus inferring that this is unnecessary when ceremonies known to be Jewish or Moorish are concerned, or manifest heresy or fautorship.[1423] The Suprema felt it necessary, in a carta acordada of July 11, 1569, to warn calificadores to confine themselves to defining the nature of propositions submitted and not to say whether or not there was calidad de oficio—a limitation which they outgrew. Another carta of November 22, 1577, shows that it had become by this time a recognized preliminary to arrest, by ordering that, if an arrest should be necessary without it, there should at least be calificacion before the formal accusation is presented, which occurred in a later stage of the proceedings.[1424]

In the gradual absorption of all initiative by the Suprema, so that eventually no arrest could be made without its order, the importance of calificacion declined. Calificadores continued to be appointed, but they seem to have been rather ornamental than useful members of the official family, if we may judge from the variation in the number attached to the different tribunals. The table in the appendix shows that, in 1746, Madrid and Llerena had none, while Valencia rejoiced in forty. They still had a function, however, in the censorship of the press, and tribunals that were insufficiently supplied could always summon theologians to their aid when necessity demanded their services.

As the sumaria was careful to recite that there was sufficient proof, that all formalities had been observed, and that further investigation was unnecessary, the calificacion completed the preliminaries. The next step was the presentation by the fiscal of his clamosa or demand for the arrest of the accused. In the fully developed formula of this, he presented and swore to the sumaria, and embodied the calificacion as showing that the culprit merited the severest punishment, to which end he asked for arrest and imprisonment, with sequestration or embargo of property, promising in due time to present a formal accusation and asking that meanwhile the registers of the other tribunals be examined with the view of securing further evidence. Forms of this were provided suited to the various classes of offences and to the cases of the absent or dead.[1425]

It manifests a praiseworthy desire to avoid precipitate action that a consulta de fe, or consultation of the inquisitors with the consultores and Ordinary, was still technically required before issuing the warrant of arrest. The existence of something of the kind is indicated, as early as 1509, by an order of the Suprema that when there is not unanimity it must be consulted before arrest is made.[1426] Yet, in 1521, a special order requiring such a consulta de fe in the case of Moriscos would infer that the rule was otherwise obsolete.[1427] That it was so is shown by subsequent cases and, even as regards Moriscos, in a number of prosecutions at Daimiel, between 1540 and 1550, the warrants are issued immediately on presentation of the clamosas.[1428] The Instructions of 1561 revived the practice, but did not enjoin it as essential, leaving it virtually to the discretion of the inquisitors.[1429] After this we find it frequently observed and, in the case of Elvira del Campo, accused of Jewish practices, in 1567, there is a consulta prior to the clamosa and a second one afterwards before the warrant of arrest is issued.[1430] When solicitation in the confessional was subjected to the Inquisition, the desire to shroud the offence in obscurity led to a regulation, in 1564, that only the vicar-general should be called into consultation and, in 1600, even he was excluded; the inquisitors were to consult only with each other and then await the orders of the Suprema.[1431] As the rule became established that the Suprema was to be consulted before arrest, these formal preliminaries became of less importance and, in the eighteenth century, we are told that the consulta was no longer held, the reason alleged being that the inquisitors then were jurists.[1432]

ARBITRARY ARREST

Apart from these formalities, there was an evident desire on the part of the chiefs of the Inquisition to prevent injustice arising from hasty and inconsiderate action. In the reformatory Instructions of 1498, inquisitors are ordered to be careful and to arrest no one on insufficient evidence—an order the frequent repetition of which proves how little it was regarded.[1433] It was thoroughly understood that the mere fact of imprisonment inflicted indelible infamy and all the authorities urge the utmost caution in the exercise of this tremendous power.[1434] In theory, at least, stronger proof was therefore required by inquisitors than by the judges of other courts; it ought to be as strong as that which justified torture—what was known as semiplena—but this merely consisted in the evidence of a single unexceptionable witness; when there was apprehension of flight, less was required and Sousa, a Portuguese authority, tells us that in heresy flight is always to be apprehended.[1435] It is true that, in 1630, the Suprema ordered that arrest on the testimony of a single witness should not be made without its permission, but this exercised little restraint. Such an arrest was made, in 1638, of Domingo de Mezquita, with a sort of apologetic explanation that he was a Portuguese and had already been tried on the same charge of Judaism.[1436]

One or two cases will show how little real benefit in practice the accused derived from all this elaborate parade of preliminary precautions. In Toledo, June 5, 1501, the fiscal informed the tribunal that Isabel, daughter of Alvaro Ortolano, was defamed for heresy and asked for her arrest. The inquisitors replied that they would order it if sufficient evidence was presented, whereupon he offered the testimony of a prisoner that she had heard Isabel say that she observed the Jewish fasts and on this a warrant of arrest was promptly issued. Considering that the accused was a child ten years of age her summary arrest on evidence so flimsy shows how little impression the Instructions of 1498 had produced.[1437] The Toledan inquisitors did not grow more cautious with time. September 16, 1541, two workmen on the cathedral appeared before them and accused Juan García, a fellow-workman, of having revelations from God in his dreams. A warrant was at once made out; the portero was ordered to have him present that afternoon and, if he demurred, to take him to the prison. He accordingly had his first audience the same day.[1438]

In these arbitrary proceedings the function of the fiscal was purely fictitious and he and the inquisitor, if they had any sense of humor, must have smiled as they acted their parts in the tragi-comedy. In 1532, before Fernando Loazes, the distinguished inquisitor of Barcelona, the fiscal appears and states verbally that it has come to his knowledge that, when the impenitent and relapsed heretic Joana, wife of Gil Tacis, was to be arrested, her husband had sought to conceal her, wherefore he should be arrested as a fautor of heresy and impeder of the Inquisition and, in due time, the proper “information” would be presented. The only evidence was that of Joana, taken by Loazes himself, but he gravely demanded to be informed and he ordered the summoning of all the witnesses whom the fiscal desired to produce. Then the fiscal, to enlighten him, presents the evidence from the record; Loazes orders it to be inserted in the acts of the case, pronounces it sufficient and issues the warrant of arrest.[1439]

In the secrecy of the tribunals there was thus nothing to prevent the exercise of discretional power to oppress the innocent as well as to punish the guilty. That it was so abused appears from the remonstrance of the Córtes of the kingdoms of Aragon, about 1530, complaining that the inquisitors arrested people for the slightest causes and on mere report, and then sometimes dismissed their prisoners without penance or with very slight sentences, thus inflicting infamy on the parties, their kindred and descendants, which was not effaced by the release. Arrests, they urged, ought to be made only for grave offences and on sufficient proof. To this the inquisitor-general disdainfully replied that the laws had been observed; if the complainants thought otherwise, let them produce instances.[1440] This spirit did not promise amendment and, although the Instructions of 1561 prescribed caution and restraint, matters must have grown worse through subordinates aping their masters, for the Concordia of 1568 provides that familiars must not be allowed to make arrests without orders from the inquisitors.[1441]