There was another form of assistance allowed to the accused, when the questions at issue involved nice theological points, beyond the capacity of the ordinary advocates. Learned doctors were called in as patrones teólogos, to aid the accused, after he had been heard in defence of his incriminated propositions. In ordinary practice, the propositions and his answers were read to them; to each one they said whether he had satisfactorily explained it or not; or whether he ought to retract, or whatever other conclusion they might reach; then the whole was submitted to the calificadores, who pronounced their final censure.[143] Nominally the patrones were selected by the accused but in this, as in everything else, the Inquisition sought to control the defence. When, in 1574, Fray Luis de Leon was told that he could have patrones, he named four from various places. The Valladolid tribunal referred the nominations to the Suprema, which replied by asking whom it was accustomed to give from among its calificadores and, on being informed, ordered that the routine custom should be followed. Fray Luis’s protest that he did not want calificadores, who had already pronounced against him, was set aside; patrones were not meant to defend the accused in his heresies, but to undeceive him and tell him what he should believe. It is true that the Suprema finally receded from this position but, by a juggle continued for months, Fray Luis was forced to take a man whom he did not want, and who was only a new and disguised calificador; conference between them was denied, and the opinion which the patron rendered was withheld from him.[144] The wisest course for a theologian, in the hands of the Inquisition, was that adopted by Fray Thomas de Nieba, in 1642, when on trial at Valladolid for certain conclusions defended by him in scholastic debate. He refused both advocate and patrones, saying that he was subject to correction by the Church and by learned theologians, and he did not propose to defend the inculpated propositions.[145]
PUBLICATION OF EVIDENCE
We have seen that, after the accusation was read and answered, the prisoner was told to choose an advocate. Possibly two names were mentioned to him, both equally unknown; more often only a single name. He was not at liberty to refuse and, on his giving assent, the advocate, who had been kept in readiness in the antechamber, was called in. The proceedings up to that point were read to him, and he at once performed the duty of urging his client to confess. Whether successful or not in this, he stated that the next thing in order was to conclude; the fiscal was called in, who similarly announced that he concluded, and the inquisitors notified both parties of the conclusion. These formalities being over, the case was formally received to proof. The fiscal asked that his witnesses be ratified and publication of evidence be made.
Ratification, as we have seen, frequently caused considerable delay, until the device was invented of ratifying at the time of deposition. When the evidence was thus in proper shape, the next move was its so-called publication. This might or might not be the final step of the prosecution, for it never was precluded from bringing in new evidence, and there might be half a dozen or more successive publications, especially when a group of Judaizers were on trial and they broke down one by one and told what they knew about their associates. The effectiveness of this is illustrated by the case of Engracia Rodríguez at Valladolid, in 1643. After her case had apparently reached its end, the consulta de fe voted her to torture, which was duly administered, without eliciting a confession. Then from time to time came new publications of evidence, until her resolution gave way and, at the seventh publication, eleven months after her torture, she confessed to Judaism. She probably recognized that her kindred and friends were yielding, one after another and incriminating her, and that it was useless to resist longer, with the certainty—of which her advocate doubtless informed her—that persistence would indubitably end in her burning alive as an impenitent negativa.[146]
As this publication of evidence was the only inkling afforded to the accused of what was the case against him, and as it was assumed to give him ample opportunity of defence, it is worth a little special consideration. We have seen that the pretext of protecting witnesses was held as justifying the suppression of their names and of all circumstances that might lead to their identification. Even under the most rigid construction, this crippled greatly the defence, but rigid construction of their powers was not common among the tribunals. When once it was admitted that portions of the evidence could lawfully be suppressed, the selection of what should be made known became largely discretional.
The endeavor to lay down rules for guidance as to this led to an infinity of instructions, more or less rigid or lax. In 1498, the Suprema called attention to the evils that had hitherto followed publication, wherefore in future care must be taken to omit all circumstances giving a clue to the identity of the witnesses, and this was repeated in 1499.[147] Yet the glaring injustice of withholding from the accused a knowledge of details that might enable him to disprove the charges was recognized, but all instructions forbidding this were framed with an “if” that virtually authorized the wrong. For instance, the specification of time and place at which an act was said to have been performed was indispensable, if the accused were to have a chance of detecting false swearing, yet such details might possibly lead him to identify the witness, and these opposing reasons gave rise to a series of varying orders which indicate how the Suprema vacillated between the desire to secure the advantage and the consciousness of the wrong. In 1525 it condemned the practice of the Toledo tribunal in omitting time and place. It was difficult to make the inquisitors observe this and, in 1527, a general order was issued to state the evidence as the witnesses had given it, neither more nor less. In 1530 it made a concession by ordering that it should be consulted when there was “inconvenience” in stating the month or year. Then, in 1532, it laid down the positive rule that place and time and persons must be stated, for the principle that the witness must be protected was to be construed as preventing only direct recognition and not inferential. This was again modified, in 1537, when, while again ordering that all the evidence must be given, this was qualified by the old injunction to suppress all circumstances by which the witnesses could be identified. About 1560, some instructions to Barcelona order that the time should be stated, while place is to be indicated in such general terms as shall not betray the witness. Finally, in the definitive Instructions of 1561, time and place are ordered to be given, but at the same the omission is prescribed of all that may betray the witness. A caution that no evidence is to be used that is not in the publication gives a hint of other irregularities of even a more serious nature.[148]
The publication being a matter of supreme importance, it was the duty of the inquisitors personally to draw it up, and not entrust it to subordinates, least of all to the fiscal, who was technically the prosecutor. Orders to this effect were issued in 1529; they were repeated in the Instructions of 1561 but, in 1568, the Suprema was obliged to take the Barcelona tribunal to task for allowing the fiscal to do it, and a later writer informs us that inquisitors continued to shirk the labor and threw it upon the secretaries.[149]
The labor was doubtless great, when the witnesses were numerous and loquacious, and the delicate duty was apt to be recklessly performed by subordinates, fearful of rebuke if they allowed too much to be known. The custom was to give the evidence of each witness separately, as deposed by “a certain person” and, when practicable, to divide it up into articles, each covering a separate charge or fact. In this process the elimination of all circumstances that might give a clue to the identity of the witnesses was easy, and there was little scruple in misleading the defendant or in omitting whatever might be thought to weaken the case. In the publication read to Marí Gómez la Sazeda, when on trial at Toledo in 1544, the evidence of one witness is divided and represented as given by two, with the object, as noted on the margin, of preventing her from identifying him.[150] In the case of Gaspar de Torralva, before the same tribunal in 1531, the publication bears such notes as “the evidence of the seventh witness omitted,” “the evidence of the eighth witness omitted.”[151] There was no possible supervision or control over this; the discretion of the inquisitors was absolute and the prisoner was at their mercy.
PUBLICATION OF EVIDENCE
In many cases the publication was scarce more than a slovenly repetition of the fiscal’s accusation and afforded to the accused no possible aid in his defence, as in that given to Juan de la Barra, tried for Lutheranism at Toledo, in 1656.[152] When it was drawn up more elaborately, it became confusing in the highest degree. One reads the long array of the assertions, or the conjectures, or the gossip retailed by twenty-five or thirty witnesses, vaguely set forth as what a “certain person” said or thought about another certain person, with no specifications of time or place, and one wonders how the prisoner could even grasp it sufficiently to form any definite conception of the character and weight of the evidence against him. And, with his life perhaps hanging in the balance, he was required to answer all this on the spot, article by article, and was closely cross-examined on his replies. That even an innocent man should compromise himself in the pitfalls thus cunningly laid for him was not unlikely, and yet this publication of evidence was represented as a special favor granted in view of the other restrictions imposed on the defence—a favor not always conceded in the secular courts.[153]