A History of the Inquisition of Spain; vol. 2

by Henry Charles Lea

RATIFICATION

As a rule, no evidence could be used that was not ratified, and I have met with not a few cases—one as late as 1628—which were suspended and the accused were discharged because the witnesses were not to be found when wanted for that purpose.[1631] This arose from the fact that in strictness ratification was not to be made till immediately before the so-called “publication of evidence” which was the concluding step of the prosecution, involving a considerable interval during which the witnesses might die or disappear.[1632] To avert this, relaxations of the requirement of ratification were gradually introduced. In 1533, 1543 and 1554 the Suprema inferentially admitted that when witnesses were absent or dead their testimony could be used if the fact was noted on the record.[1633] There were authorities who held this to be the case in Aragon and it was so practised, but elsewhere opinions varied.[1634]

Finally a successful device was invented of two forms of ratification, one “ad perpetuam rei memoriam” and the other “en juicio plenario.” They were virtually the same except that in the former the witness was told that the fiscal would use his evidence in a prosecution to be brought hereafter, and in the latter that it was for a case on trial. It became customary always to obtain the ratification when the testimony was given and then, if a witness was accessible during the trial, the ratification en juicio plenario was superadded. At what time this expedient was adopted it would be difficult to say, but it was probably about the middle of the seventeenth century; the earliest use of it that I have met occurs in 1650, in Mexico, where it seems already to be customary.[1635]

While this ostensibly retained for the accused the protection of ratification, it destroyed whatever value there was in a prolonged interval between the original deposition and its confirmation. At first a delay of four days was ordered for the form ad perpetuam, which seems to have been considered sufficient to excite the conscientious scruples of a possible perjurer.[1636] Even this was subject to the exigencies of the prosecution. An elaborate series of instructions to commissioners, about 1770, informs them that there should be four days’ interval if possible, but if a witness is dying or about to absent himself, ratification may be immediate.[1637] In a case in 1758 ratification is ordered to be taken after waiting three hours; in others, in 1781 and 1795, after twenty-four hours; in another, in 1783, it is recorded that twenty-eight hours were allowed to elapse, all of which shows how purely formal was the whole business.[1638]

RATIFICATION

In truth it was the baldest formality, for the process habitually followed deprived ratification of whatever value it might have had originally. In place of testing the memory and veracity of the witness by making him repeat his testimony, it was merely read over to him. In 1519 and again in 1546, the Suprema sought to set some limit to this abuse by ordering that, after preliminary inquiries, the witness should be made substantially to repeat his testimony and, only after this, was the record to be read to him, but even this was soon afterwards abandoned and the Instructions of 1561 merely provide that the witness is to be told to repeat his testimony; if his memory fails, questions are to be put leading him to recall it and, if he asks to have the record read, it is to be read to him. Of course the witness always availed himself of the privilege and Pablo García says nothing about his repeating his evidence and directs the reading of the record as a matter of course.[1639] So perfectly was the whole business a matter of routine that tribunals kept printed blanks, to be filled in with names and dates, of the customary attestation that the witness declared it to be his testimony, that it was properly set forth, that he had no change to make in it, for it was the truth which he ratified and if necessary he repeated it, not through hatred but for the discharge of his conscience.[1640] In fact, although the witness was free to make what additions, alterations or omissions that he pleased, it was dangerous for him to diminish the record substantially, for any revocation exposed him to punishment for false-witness and both depositions were duly set forth in the publication.[1641]

Bishop Simancas tells us that, when there was suspicion of perjury, it was customary to examine the witness again, but that this was not done in other cases, so as not to lead him to commit perjury[1642]—a tenderness to the witness which had better have been displayed to his victim; but Simancas wrote before the Instructions of 1561 were issued and Rojas, whose work was subsequent, is very free-spoken in his denunciation of the customary practice. Some doctors, he says, argue that ratification supplies the place of letting the accused know the names of the witnesses, but this is a hallucination, for experience shows that this ceremony, with its two religious persons, is of no value, for it is a trait of humanity to persist in an assertion, whether true or false, especially where there is risk of perjury, and he urges that the witness should not be allowed to see his testimony, but should be examined anew and the two statements be compared so that, from their variations, his credibility could be determined and lying witnesses be detected.[1643] Few inquisitors could be expected to perform this conscientious duty, but one who wrote about 1640 indicates how fruitful it might prove. He tells us that, in suspicious cases, he had found the advantage of this plan and had brought to light perjuries which could have been proved in no other way; when witnesses betrayed their falsity by varying in important details, he confined them in solitary cells, where conscience did its work, and they confessed their frauds. He had also seen many ancient processes in which commissioners and notaries were convicted, deprived of office and punished in public autos de fe, which suggests unpleasantly how little reliance was to be placed on the officials who took down evidence.[1644]

Before the invention of the formula ad perpetuam, there was a hardship inflicted by ratification, in the excessive delays which it frequently caused. Thus Francisco Alonso, a Portuguese of Zamora, accused of bigamy, was thrown into the secret prison of Valladolid, July 10, 1627. As the alleged marriages had taken place in Coimbra, the evidence of their celebration had to be obtained from there, and it was a year before he had his first audience. When the time came for ratification, the depositions were sent for that purpose to Coimbra, September 28, 1628 but, in spite of repeated urgency, they were not received back until December 18, 1629. Then the case dragged on until the poor wretch died, June 10, 1630, after three years of incarceration, when it was perforce suspended.[1645]

SUPPRESSION OF WITNESSES’ NAMES

Of all the devices for encouraging informers and crippling the defence of the accused, the most effective was the suppression of the names of the witnesses for the prosecution. This infamy was an inheritance from the Old Inquisition. In 1298, under the pretext that those who gave evidence in cases of heresy were liable to vengeance from other heretics, Boniface VIII provided that, where such danger was threatened, inquisitors were at liberty to conceal the names of the witnesses, but he expressly ordered that, in the absence of such danger, the names were to be published as in other tribunals. That he construed this literally is evident, for, when the Jews of Rome complained that in their case the names were habitually concealed, he decided that, as they were few and powerless, there was no danger and the names must be revealed.[1646] Permission to commit injustice is apt practically to assume the aspect of a counsel and then of a command and, in spite of Boniface’s reservation, concealment became the universal practice of the Inquisition. So it was in Spain. At first it was a discretionary power for the inquisitor to use in exceptional cases, as when the inquisitor of Ciudad Real, in the trials of Sancho de Ciudad and his wife, ordered, January 7, 1484, that the witnesses’ names be suppressed, it was an exception which he explained by the fact that Sancho was regidor of the city, with powerful friends, and that the witnesses had been threatened.[1647] Similarly, in the Instructions of November, 1484, the suppression of witnesses’ names was permissive, not mandatory. Allusion was made to the danger of testifying against heretics; it was asserted that some witnesses had been murdered or wounded for that cause, wherefore inquisitors could suppress their names and all circumstances that would lead to their identification.[1648] All that was needed was permission, and suppression speedily became the rule.