A History of the Inquisition of Spain; vol. 3

by Henry Charles Lea

The advocate thus became one of the officials of the tribunal, duly salaried and working in full accord with the inquisitors. In 1584, we find him of Valencia petitioning to have a place assigned to him in the autos de fe, where he could be recognized as such and, at his ease, see his clients sentenced. The petition was granted and he was allotted the last place among the salaried and commissioned officers.[126] This became the established rule, but in time professional dignity was wounded at thus being relegated to a position inferior to the messengers and apparitors and gaolers.

In Valladolid and Granada the advocates obtained promotion to outrank the physicians and surgeons and, in 1670, the Licentiate Juan Márquez, advocate in the Seville tribunal, addressed to the Suprema a formidable memorial of seventy-five quarto pages of text and fifteen of index, representing the slight thus put upon them, and setting forth the dignity of the legal profession, the respect due to its learning and, as regards the advocates of prisoners, the confidential position occupied and the fidelity with which they served the tribunals. It seems never to have occurred to him to put forward a claim based upon fidelity to their clients.[127]

In fact, the so-called advocate was simply an official instrument for securing confession and conviction, for which his ostensible position of friendly adviser gave him peculiar opportunity. No communication between him and his client was allowed, except in presence of the inquisitors and of the secretary, who made record of all that passed between them, thus keeping watch to see that he performed his duty. It is true that he was sworn to defend the prisoner with all care and diligence and fidelity, if there was ground for it, and if not to undeceive him, but his real duty is described as urging the prisoner to confess fully as to himself and others, and to throw himself upon the mercy of the tribunal, for by denial he would only prejudice his case and suffer in the end.[128] How any deviation from this was treated, appears in the case of Benito Ferrer, in 1621, before the Toledo tribunal. In the consultation, his advocate Argendona suggested some points of defence displeasing to the inquisitors, who promptly ordered him out of the audience-chamber and sent Benito back to his cell to refresh his memory and discharge his conscience, and two days later Argendona had to put in the written defence without further opportunity of conference. The Licentiate Egas had a more accurate conception of his duty, when serving as advocate for Isabel Reynier, tried, in 1571, for Protestantism in Toledo. The official record states that, after unavailing efforts to induce her to confess, he asked whether she had any enemies to disable, on which he could frame a defence, when she named several, but, as the Señores Inquisidores wanted to despatch the case, he told her that this would avail her nothing, for there was no presumption that enmity had caused false-witness, and he went on to persuade her that she had already confessed enough to render her case hopeless. The impatience of the inquisitors was gratified, for the unfortunate woman was sent to the stake without Egas troubling them by putting in a written defence.[129]

The old rule remained in force forbidding the advocate to defend an impenitent heretic. It made no difference of course in the result, but still permission to do so would have saved appearances. Such cases occasionally occurred, like that of Benito Peñas at Toledo in 1641, a harmless lunatic with some vague speculative heresies. His advocate, Juan Díaz Suelto, after a conference in which his client obstinately rejected his advice to forsake his errors and beg for mercy, reported that his efforts had been in vain, so that it was necessary for him to abandon the defence, in order not to incur the censures and other penalties imposed by the papal briefs, and also for the speedier despatch of the case.[130] Even as late as 1753, at Valencia, the same occurred in the trial of a swindling German named Horstmann.[131]

PROCURATORS NOT ADMITTED

If, even under these shackles, an advocate desired really to defend his client, he was deprived of the means to do so. Originally, as we have seen, the kindred and children were allowed freely to communicate with him, to furnish indispensable assistance and information, and to gather witnesses, and he was also supplied with copies of the depositions of the witnesses and other necessary papers. It seems to have been Lucero, the evil inquisitor of Córdova, who changed all this, for the memorials of Jaen and Llerena complain bitterly of such denial of justice, rendering nugatory all the means of defence, and depriving the kindred of all knowledge of the nature of the accusation.[132] It expedited business however and facilitated conviction, and its usefulness overcame all scruples. In 1522 Cardinal Adrian forbade all communication between the advocate and the children or kinsmen of the accused, and this prohibition was repeated until it became the invariable rule. In the same spirit, the only document, that he was allowed to have, was a copy of the publication of evidence, which was a very different thing from the original depositions. To repress all initiative on his part he was prohibited from putting forward any defence save what the accused might suggest, in their open consultations in the audience-chamber, or to call for any witnesses whom the latter did not name, and the inquisitors were instructed to punish any infractions of this rule because they were troublesome and impeded the course of business.[133] If an advocate was suspected of undue zeal, the inquisitors had a right to interrogate him as to the measures taken for the defence, the sources of his information and other details; the defence in every way was obliged to play cartes sur table, while the fiscal’s hand was carefully guarded, and only such knowledge was permitted as served to confuse and mislead. It would seem scarce likely, under such regulations, that advocates would be guilty of really assisting their clients, but to guard against such possible derelictions of duty, inspectors were ordered, when visiting tribunals, to inquire whether they defend the accused “maliciously” and employ cavils for delay and finally, whether or not they are necessary.[134]

At the same time, in its affectation of fairness, the Inquisition insisted on the accused having counsel. When, in 1565, Pedro Hernández was tried at Toledo for Calvinism, he confessed at once, professed conversion and begged for mercy. When told to select an advocate he refused, until informed that it was imperative for him to have one to conduct his defence. Of course this was a mere formality for he was duly burnt in the auto de fe of June 17th.[135] Inquisitors, moreover, were required to admit all documents offered to them, and to listen to any one who might have the hardihood to appear in favor of a prisoner.[136]

Simultaneously with the development of restrictions on the advocate, the disappearance of the procurator completed the system of enabling the inquisitor to control the defence as well as the prosecution. One of the latest references to the procurator is a regulation of 1545, which infers that, if the accused made application, the tribunal would grant him one, with the reservation that this did not entitle the kindred to aid in the defence.[137] This jealousy of outside assistance constantly increased and some tribunals, such as Seville and Córdova, commenced to refuse admission to procurators, except in prosecutions of the absent and dead; the kindred might suggest the names of witnesses to the inquisitor, who would summon and examine them. Finally Inquisitor Cervantes, when in 1560 he made a report on Barcelona, took the opportunity of pointing out the disadvantages of such representatives of the accused; through them, he argued, the case became known, they anticipate the witnesses before they give evidence, they are able to identify them and furnish to the accused reasons for disabling them. The Bishop of Avila, a member of the Suprema, promptly admitted the force of this, and declared that procurators ought no longer to be allowed. This opinion prevailed and, in the Instructions of 1561, their admission was forbidden, although in case of necessity, special powers might be given to the advocate.[138] They continued, however, to be appointed in trials of the absent and dead, where it was unavoidable. The Roman Inquisition did not follow this example of the Spanish and allowed the employment of procurators.[139]

THE CURADOR

Besides the advocate there appears in many trials a personage known as the curador, or guardian, a living evidence of the fatherly care of the Inquisition toward the helpless. Following the traditions of the Roman law, Spanish jurisprudence provided that, in suits and actions involving those who had not attained the full age of twenty-five years, the assent of a curador, either permanent or temporary ad hoc, was necessary to validate the legal acts of the minor.[140] This provision, intended for the protection of the youthful and incapable, was retained in the practice of the Inquisition, because it was necessary to render valid the various compulsory acts of the accused in the successive steps of his trial, but in order that it might not by any chance be of value to him, and to preserve the secrecy of the Holy Office, the custom was adopted of appointing the advocate or preferably the gaoler, or messenger, or some other underling of the tribunal to serve as curador. As it was thus wholly subversive of the object for which the function was created, there is grotesque cynicism in the pompous formalities through which the curador was interjected into the proceedings. He took a solemn oath that he would diligently and faithfully defend his ward, alleging all that was to his advantage and preventing all that was injurious, advising with his advocate and doing all that a good guardian could do for a ward. And, if the latter, through his negligence, suffered injury, he pledged his person and property to make it good, giving as security another person (a fellow subordinate) who united with him in the liability, jointly and severally, renouncing all legal defence and placing themselves and all their possessions in the hands of the inquisitors.[141] Being thus a mere formality, or rather a deception, involving the perjury of those who took the formidable oath, it may be dismissed from further consideration, except to cite a case illustrative of the rigid formalism of procedure. In 1638, at Valladolid, Blanca Enríquez, on trial for Judaism, represented herself as twenty-two years of age and as usual was given a curador. She confessed to having been reconciled at Córdova, nine or ten years before; a vote in discordia carried the case to the Suprema, which discovered that her previous trial had occurred in 1623, when she was fifteen and consequently she was now thirty. The curador therefore had rendered the trial irregular, and the Suprema ordered it to be repeated from the beginning.[142]