A History of the Inquisition of Spain; vol. 2

by Henry Charles Lea

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 was under 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 as mayores or menores, 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, who was 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 creature hiding 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 a revocante, 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 the generales 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.