A History of the Inquisition of Spain; vol. 3

by Henry Charles Lea

After this ordeal was passed the advocate was called in and furnished with the publication and the answers of the accused. The two conferred together, under the eye of the inquisitor and pen of the secretary; if the accused rejected the renewed advice of the advocate to confess and discharge his conscience, the plan of defence was concerted. What this was, as a rule, made little difference. When, in 1499, the inquisitors-general felt it necessary to instruct inquisitors that they must pay attention to the defences and exceptions alleged by the accused, it indicates how they were recognized as prosecutors rather than judges. Yet it was freely admitted that, in view of the limitations of the defence, they should be most zealous in considering whatever it presented.[154]

The defence was so perfunctory a routine that the systematic writers mostly dismiss it with the curt observation that its witnesses must be zealous Christians and in no way connected with the defendant. Simancas, however, treats it at greater length, and his enumeration of its possibilities shows how restricted they were. He admits at the start the legal maxim that it is impossible to prove a negative, which was virtually, in most cases, the task imposed on the accused. Then he proceeds to define what the defendant can do. He can call on witnesses to prove his religious character or to disable for enmity the opposing witnesses, or to show that at a certain time or place he did not say what was attributed to him. Then there are general pleas in abatement, extreme youth, second childishness, insanity, drunkenness, thoughtless speech, ignorance, jocularity, the pressure of fear under threats, or intense grief. Or he may recuse the judge, which should be referred to the Suprema and not to arbiters, who cause much delay.[155]

THE DEFENCE—RECUSATION

Recusation of a judge was a right recognized in the traditional legislation of Spain.[156] It was admitted in the Inquisition and we have seen, in the cases of Carranza and Villanueva, how little the accused profited thereby, even when nominally successful. It was a recourse practically open only to the powerful or to the trained, at best but a dangerous expedient, and of necessity had to be done at the commencement of a trial. It evidently was not employed often enough for a definite form of procedure to have been provided. The Instructions of 1561 require that, if an inquisitor be recused, he must abandon the case to his colleague; if he has none, or if both are recused, the matter must await the decision of the Suprema.[157] This would indicate that the recused judge retired as a matter of course, but the Carranza and Villanueva cases prove that the objections of the prisoner had to be demonstrated as legitimate and this is further indicated when the troublesome Jesuit, Padre Juan Bautista Poza’s extravagant Mariolatry was condemned at Rome and approved in Spain. It took seven years after his Elucidarium Deiparæ had been placed on the Roman Index, in 1628, before the Spanish Inquisition could be compelled by the nuncio to prosecute him for his rebellious defiance. When on trial by the Toledo tribunal, he recused the Inquisitor Cienfuegos; his reasons were examined by the Suprema, which consulted the other inquisitors and the recusation was sustained. How unusual was this proceeding is indicated by the boast of his triumphant brethren that this was one of the remarkable events that had occurred in Spain.[158] Yet an incident in the trial of Fray Luis de Leon shows the advantage taken of any obstacle to prevent recusation. After two and a half years of seclusion in prison from the world, he asked to know the names of the existing inquisitor-general and members of the Suprema, in order that he might recuse any whom he regarded as inimical, yet this elementary piece of information was denied, in spite of repeated applications, in which his counsel joined, showing that the latter was debarred from telling him what was of public notoriety.[159] Strictly speaking, recusation was not a defence but merely a preliminary to it, and its rarity renders it of minor importance.

Of the pleas in abatement enumerated by Simancas, that of youth amounted to little for, as we have seen, as soon as the age of responsibility was reached, the offender was liable to punishment, and there was little mercy shown. In fact, there was a device, when the culprit was below the age of fourteen, of postponing the sentence until he had attained that age.[160]

THE DEFENCE—INSANITY

Insanity was of much greater moment. The insane were recognized as irresponsible and were sent to hospitals. It was not infrequently pleaded, and the tribunals were constantly on the watch to protect themselves against deception, yet it was long before definite rules were adopted with regard to the matter. In the enlightened view taken by the Inquisition regarding witchcraft, instructions of 1537 indicate a disposition to regard reputed witches as insane; whenever the inquisitors considered this to be the case, all acts and words leading to such conclusion were to be scrupulously detailed in the records. Barcelona at the time had on hand a witch named Juana Rosquells, whom the physician and consultors considered to be out of her mind; not knowing what to do they referred to the Suprema, which ordered her discharge and somewhat inconsistently required her to be put under bail.[161] Even more tentative was the case of Toledo, in 1541, of Juan García, a day-laborer, favored with revelations of the wildest kind. In his audiences he replied unintelligibly to the questions asked and, when the case came before the consulta de fe, it summoned him and asked whether he would take a hundred lashes or confinement in a hospital. He very sensibly declined both, and the session terminated with a vote that his sanity be investigated. This was done in the most superficial way, the consulta de fe when reassembled voted to acquit him, with a warning that if he persisted in his wild talk he should have a hundred lashes, whether insane or not. He was accordingly told to be gone in God’s name.[162]

There evidently was as yet no method prescribed for dealing with such cases and it is somewhat remarkable that the Instructions of 1561 allude only to those, by no means infrequent, in which prisoners became demented during trial, and in these it is only ordered that they be provided with a curador, which infers that the trial was to be continued.[163] In conformity with this, at Granada, in 1665, a prisoner who had become insane after confessing, was furnished with a curador under whose auspices the case was carried to conclusion. He was condemned as a heretic and his property was confiscated; as he had confessed and begged for mercy while still in his senses, he was absolved from censures so that he might enjoy the suffrages of the Church, while as to the penances requiring sanity for their performance, such as reconciliation, abjuration, exile, etc., their determination was postponed till he should regain his reason.[164] When madness occurred after conviction and sentence, Peña tells us that the execution should be postponed until the reason is restored, for perhaps the culprit may repent and he is sufficiently punished by the madness. Even when it is feigned this should be done, for it is a less evil that the crime should be unpunished than to destroy his soul by putting him to death impenitent. In any event confiscation is to be enforced.[165]

When the accused was decided to be insane the plan adopted was to transfer him to a hospital, but in 1570 the Suprema required to be consulted before this was done. Hospitals were not always willing to receive such patients, but they were constrained to do so, as appears by an order of the Suprema in 1574, in such a case.[166]

The diagnosis of insanity is sufficiently obscure to modern science, and it is not surprising that the Inquisition experienced difficulty in protecting itself against attempts at imposition, which were regarded as frequent. Peña informs us that insanity was always looked upon with suspicion, as probably fictitious, but he can only suggest that the gaolers should keep careful watch, and the inquisitors threaten or employ torture, to which there was no objection, unless there was risk of death, and which was an effective means of detecting imposture.[167] There was, in fact, as we have seen, no hesitation in having recourse to it when other means failed, but it is to the credit of the Inquisition that it was ready to exhaust all its resources in doubtful cases, to determine the question of sanity, however much its ultimate conclusions might be warped by prejudice or preconceptions.