A History of the Inquisition of Spain; vol. 2

by Henry Charles Lea

Prosecutions of course were not to be impeded by reluctant or recalcitrant witnesses. The tribunals had full power to summon them and to punish them for refusal. When they resided at a distance, it was discretional either to have them examined by a commissioner, appointed ad hoc, or to make them appear in person. In 1524 Cardinal Manrique even decided that they could be brought from Aragon to Castile although, as we have seen, this violated the fueros of Aragon, which forbade that any one should be forced to leave the kingdom.[1610] The official summons requires the witness to present himself before the tribunal, within a specified number of days, under pain of ten thousand maravedís and excommunication latæ sententiæ, this censure being pronounced in advance with notice that, in case of disobedience, it would be published and he would be proceeded against according to law. The summons was to be served with the utmost secrecy and, like all other documents, was to be returned to the tribunal with an endorsement of the date of service.[1611]

EXAMINATION OF WITNESSES

Witnesses were compelled to give evidence and were liable to punishment if suspected of withholding it. In Doctor Zurita’s report of his visitation of Gerona and Elne, in 1564, it appears that he arrested Maestre Juan Fregola, canon of San Martin of Gerona, because he said that he did not remember a matter at issue; his memory was thus refreshed and he was released on giving the desired evidence.[1612] This continued to the end. In 1816, the Suprema, in confirming the vote of the tribunal of Cuenca to continue the case of Antonio Garcés, adds that it must take the necessary steps against the witnesses who refuse to testify.[1613]

The examination of witnesses for the prosecution was a duty of the inquisitors. It was one, however, that they threw upon the notaries, who were ordered by the Suprema, in 1498, not to take testimony except in presence of the inquisitors, while Cardinal Adrian, in 1522, said that, if the latter were too busy to be present, they must at least read the testimony before the departure of the witness and make the necessary re-examination.[1614] All this argues a very loose and slovenly system, in a matter of such primary importance, inherited doubtless from the early time, when the rush of prosecutions precluded all but the most superficial conduct of business. In that period there had been devices for the division of labor, for we hear of an official, in 1485, known as the receiver of witnesses, and of payments made to clerics whose presence was essential in the taking of testimony—devices which were abandoned about the close of the century.[1615] As business declined, the inquisitors seem to have taken a more active part in the examination of accusing witnesses, except towards the end, when indolence led them to issue commissions to conduct interrogations.

It was the rule that all examinations should take place in the audience-chamber, except in extreme urgency, when the inquisitors might hold them in their apartments or houses—a rule of which the Suprema had to remind them, in 1538, and again in 1580.[1616] Witnesses were sometimes sworn in groups, but were examined separately as a prudent precaution against collusion.[1617] When the estilo had been perfected, there was a prescribed form for commencing the interrogatory, by first asking the witness whether he knew or presumed the cause of his summons; this was usually answered in the negative, when the next question was whether he knew or had heard that any person had said or done anything which was or appeared to be contrary to the faith, or to the free exercise of the Inquisition. This had the appearance of careful abstention from guiding him but, if he persisted in the negative, the interrogatory rapidly assumed the aspect of letting him know for what he was wanted and what was expected of him. Thus in the trial at Barcelona, in 1698, of a woman named Ignacia, for sorcery, Jaime Guardiola asserted that he knew little except that he had forbidden her his house, when Inquisitor Valladares told him that the Inquisition had information of his having employed her on several occasions which he described, wherefore he adjured him, in the name of God and his Blessed Mother, to examine his memory and tell the truth.[1618] Sometimes the inquisitor went further and openly threatened a witness, warning him, by the reverence due to God, to tell the truth and not to make the prisoner’s case his own.[1619] The Suprema might well restrain the excessive zeal of its subordinates by instructing them not to intimidate witnesses or to treat them as if they were the accused parties.[1620]

EXAMINATION OF WITNESSES

While thus with unwilling witnesses the inquisitor acted as counsel for the prosecution, with those who were willing he made no attempt to ascertain the truth of their stories. He asked leading questions without reserve and abstained from any cross-examination that might confuse the story and expose mendacity. When, in the trial of Juan de la Caballería, at Saragossa, in 1489, his procurator asked that certain interrogatories which he presented should be put to the witnesses, the inquisitors roughly refused, saying that it was their official duty to find out the truth for the discharge of their consciences.[1621] So long as witnesses incriminated the accused, as a rule there was no effort to test their accuracy or to obtain details of place and time or other points which would facilitate defence against false charges. In the case of Simon Nocheau, at Valladolid, in 1642, he succeeded in getting a series of interrogatories put to the witnesses which exposed discrepancies that it was the duty of the inquisitors to have discovered.[1622] Even the Suprema recognized the injustice of this, in the case of a priest whom the tribunal of Barcelona, in 1665, sentenced to imprisonment for “propositions,” and ordered it to recall the witnesses and cross-examine them so as to verify their testimony and also to investigate whether they were actuated by enmity.[1623]

To estimate the conscious unfairness of this it is only necessary to contrast it with the treatment of evidence presented by the defence. The handling of this was likewise wholly with the inquisitor. All that was allowed to the accused was to offer a list of witnesses and a series of interrogatories to be put to them. It was the duty of the inquisitor to summon the witnesses and put the questions, or to forward the interrogatories to commissioners for the same purpose, but he had full discretional power to omit what he pleased, both as to witnesses and questions. In fact, he received the interrogatories only salvo jure impertinentium et non admittendorum, and he exercised this power without supervision and without informing the accused or his advocate as to what he threw out. In 1572, Luis de Leon on his trial presented six series of interrogatories to be put to his witnesses of which three were calmly thrown out as “impertinent.”[1624] Not only was all knowledge of this concealed from the accused but also the answers of the witnesses to such questions as were permitted. It is true that, in 1531, even the Suprema revolted at this and ordered the evidence in favor of the accused to be submitted to him and to his advocate, so that it might not be said that he was deprived of defence, but injustice prevailed and the Instructions of 1561, in prescribing the suppression to the accused, gave as a reason for it that the accused might thus be prevented from identifying the adverse witnesses—thus showing how one denial of justice led to another.[1625] The witnesses for the defence were further subject to cross-examination which, at least in the earlier period, could be conducted by the fiscal—an indecency almost incredible in view of the crippling restrictions placed on the defence.[1626] In fact the distinction recognized in the treatment of evidence for the prosecution and for the defence is epitomized in the instructions sent by Toledo, in 1550, to its commissioner at Daimiel, about taking testimony in the cases of some Moriscos of that place. He is not told to investigate the credibility of the mass of idle gossip and hearsay evidence gathered for the prosecution but, when examining witnesses for the defence, he is to cross-examine them strictly to ascertain what are the grounds for their assertions.[1627]

There was one formality, not peculiar to the Spanish Inquisition, designed to protect the accused from random or false accusations—the ratification which was required of witnesses after an interval had elapsed since their original depositions. This was occasionally of service and, if preserved in its original form, would have been a considerable safeguard in detecting perjury. It was conducted in presence of two frailes, known as honestas personas, and the fiscal was not allowed to be present, a prohibition which Manrique was obliged to repeat in 1529.[1628] In the earliest period, ratification was frequently omitted, doubtless owing to the haste with which the Inquisition worked,[1629] but subsequently it was regarded as absolutely essential. Its importance was shown by making it an imperative duty of the inquisitor himself to take the ratification, either summoning the witnesses or going to them, but this was difficult of enforcement. Cardinal Adrian, in 1517, declared that ratification before a commissioner nullified the whole proceedings, yet orders were required in 1527 and again in 1532 to make inquisitors perform the duty, and finally the attempt was abandoned and commissioners were everywhere employed.[1630]