A History of the Inquisition of Spain; vol. 3

by Henry Charles Lea

As soon as the accusation was read, it was gone over again, article by article, and the accused, while still confused by its menaces, taken at advantage, wholly unprepared and without assistance of any kind, was required to answer each on the spot, his replies or explanations being taken down by the secretary as part of the record of the case. After this he was told to choose an advocate to aid in his defence.

THE ADVOCATE FOR THE DEFENCE

The custom of allowing counsel in criminal cases is so comparatively recent in English law that their admission by the Inquisition may be regarded as an evidence of desire to render justice. In Spain, however, it was customary, and defendants too poor to retain them were supplied at the public expense. In the royal chancellería, as organized by Ferdinand and Isabella, there were two abogados de los pobres.[112] In the medieval Inquisition, during its earlier centuries, counsel were not allowed to the accused and it became a settled principle of the canon law that advocates who undertook the defence of heretics were suspended from their functions and were perpetually infamous.[113] Towards the close of the fifteenth century, however, in witchcraft trials, we find advocates admitted, but under the strict limitations that we shall see in Spain, and those who showed themselves too zealous in defence of their clients were subject to excommunication as fautors of heresy.[114]

When the Spanish Inquisition was founded, it was therefore a matter of course that the accused should be allowed the assistance of trained lawyers and not only this but of procurators, who attended to the business of the defence, performing the functions, in some sort, of the English solicitor, while the letrado represented the barrister and drew up the argument. In a number of trials at Ciudad Real, in 1483, there appears to have been considerable freedom of choice, the accused selecting both advocates and procurators. During the persecution at Guadalupe, in 1485, the defendants were mostly represented by Doctor de Villaescusa as advocate and by Juan de Texeda as procurator, and the arguments in defence were well and forcibly presented.[115] This was in accordance with the Instructions of 1484, which order that if the accused shall ask for an advocate and procurator, the inquisitors shall grant the request, receiving from the advocate an oath to assist him faithfully, without cavils or malicious delays, but that if, at any stage of the case, he finds that his client has not justice on his side, he will help him no longer and report to the inquisitors; if the accused has property, they shall be paid from it, but if he has none they shall be paid out of other confiscations, for such are the orders of the sovereigns.[116] Yet this liberality was nullified by the clause requiring advocates to betray their clients, thus destroying all confidence between them and fatally crippling the defence. It was, however, in accordance with the ethics of the age, and we shall see how it developed in a manner to render illusory the services of the advocate.

It would seem that the tribunals sometimes chafed under these rules and asserted discretion to disregard them for, in the case of the priest, Diego García, in 1488, when he was told to select an advocate and a procurator, the fiscal refused consent, and he had to conduct his own defence, though, at a subsequent stage of the trial, Diego Tellez appeared for him.[117] It was possibly in consequence of such cases and of other impediments to the defence, that the Suprema issued a provision that all prisoners should be allowed to take a procurator and advocate, provided they were fitting persons. Also that the children and kindred of the accused should not be prohibited from consulting as freely as they pleased with the counsel, and that he should have copies of the accusation, the depositions of the witnesses and other papers in conformity with the Instructions.[118] All this, which was demanded by the simplest demands of justice, became, as we shall see, a dead letter.

OFFICIAL ADVOCATES

That the danger awaiting a too zealous advocate was not purely hypothetical is seen in the case of Casafranca, deputy of Ferdinand’s treasurer-general of Catalonia, who was burnt in the auto de fe of January 17, 1505, and his wife in that of June 23d; his father-in-law had been reconciled and his mother, after condemnation, died in the secret prison. Francisco Franch, the royal advocate-fiscal, had defended Casafranca, and the Inquisition prosecuted him for his unsuccessful attempt to avert his client’s fate, although at that time he had risen to the position of Regent of the royal Chancellery. Ferdinand, who felt much interest in his behalf, made Inquisitor-general Deza write in his favor to Francisco Pays de Sotomayor, an inquisitor specially deputed to hear the case, but this did not save him from bitter humiliation and dishonor. February 28, 1505, Sotomayor pronounced sentence in which his offence was described as endeavoring to induce a witness to revoke his testimony, and as impeding the Inquisition by useless and procrastinating delays, by which he had incurred excommunication, and moreover he was guilty of perjury by asserting a false and erroneous conclusion, for all of which he had humbly begged pardon and mercy. After obtaining absolution from a priest he was to stand the next day before the high altar of Santa María de Jesu during mass, with a lighted candle, in penitential guise, and forfeit all payment for his services—which would have come out of Casafranca’s confiscated estate. Both he and the fiscal accepted the sentence, but there was delay in his public penance, for he refused to utter certain words interlined in the sentence, which he asserted had been inserted since it was read to him. The fiscal threatened to appeal to the inquisitor-general and demanded that Franch be detained in prison until the appeal was decided, whereupon he yielded and the ceremony was performed on March 1st.[119]

When the efforts of counsel in behalf of their clients were thus effectually discouraged, nothing but the most perfunctory services could be expected from them, and the inquisitors need apprehend little trouble. Even this, however, was thought to give the accused too much chance, and all risk of inconvenient zeal was averted by depriving him of the right to select his defender and confining the function to one or two appointees of the tribunal, who could be relied upon to favor the faith. The first intimation of this policy comes in the memorials of Jaen and Llerena in 1506, which complain bitterly that the inquisitors refuse to allow the accused to select their advocates and procurators, forcing them to take such as they appoint who will do their bidding. The Jaen memorial describes them as enemies of the people, who desire arrests to be multiplied, as they charge three thousand maravedís in every case which, for the two hundred prisoners, amounts to six hundred thousand.[120] This abuse, probably originating with Lucero, was so conformable to the tendencies of the Holy Office that it gradually became the rule. In 1533, one of the petitions of the Córtes of Monzon was that prisoners should be allowed to select their advocates and procurators, and to this no direct answer was made.[121] In 1537 the abogados de los presos were already recognized as officials appointed by the tribunals. They were exclusively entitled to conduct the defence and, in 1540, the Suprema, in reply to a petition, said that, if the party desired a different advocate, it could only be on condition that he should act in consultation with the official one. Even this poor privilege was withdrawn for, in 1562, Valdés decreed that the official counsel should communicate with no other advocate.[122] It is true that, in 1551, the Suprema had admitted that, if the tribunal had not been able to find a fitting lawyer for appointment, the accused could select one, but this was merely yielding to necessity.[123]

The chief qualification for an abogado de los presos was his limpieza and that of his wife; his subservience to the tribunal was assured by his dependent position, but, to render this more absolute, about 1580 the Suprema ordered the Lima tribunal—and probably all others—to make its advocates familiars, an office which bound them to the strictest obedience.[124] Allowing for natural exaggeration, there is probably truth in the description given, in 1559, by Antonio Nieto, a prisoner in Valencia, to his cell-mate Pedro Luis Verga, who, after his first audience, was felicitating himself on Inquisitor Arteaga’s promise to give him an advocate and a procurator. Nieto told him not to count upon it for, though the inquisitor might give him an advocate he would give him nothing good, but a fellow who would do only what the inquisitor wanted and, if by chance he asked for an advocate or a procurator not of the Inquisition, they would not serve for, if they went contrary to the inquisitor’s wishes, he would get up some charge of false belief or want of respect and cast them into prison.[125]

FUNCTION OF THE ADVOCATE