A History of the Inquisition of Spain; vol. 3

by Henry Charles Lea

In this system, in which the burden of proof was thrown upon the accused, while he was crippled in every way as to the means of proving innocence, injustice could only be averted by judges acting virtually as counsel for the defence, in place of which they habitually served as parties to the prosecution. How it worked can best be understood by a few instances, with varying results.

In 1494, Diego Sánchez of Zamora was prosecuted for Judaism in the tribunal of Toledo. He had been trained, from his fourteenth year, in the cathedral, where he had risen, twenty years before, to the position of organist and beneficiary. There were but two witnesses against him—Pedro de Toledo, a chaplain of the archbishop, who testified to seeing him eat squabs on a Saturday and eggs in Lent and remove fat from meat. The other was María de Santa Cruz, a servant-girl, burnt for heresy, who on her way to the quemadero, being urged to clear her conscience by denouncing her accomplices, said that once when he was sick his father told him that he would not get well unless he sent some oil to the synagogue, whereupon he sent both oil and candles. She was beyond the reach of vengeance but, as usual, her name and the circumstances were suppressed. There is grim comedy in the efforts made by Sánchez and his advocate to unravel this story. They repeatedly requested the dead witness to be recalled and re-examined and to have the date fixed, for Sánchez had once been delirious for some days and it might have occurred then; a formal series of interrogatories was drawn up to be put to her, and eight witnesses were to be examined to prove the truth of the delirium, all of which the inquisitors met with profound silence. Then, in hopes of discovering all possible enemies who might have testified, a long series of quarrels was detailed which he had had with members of his family and others. In this he chanced to stumble upon María de la Cruz, who had been his servant, but was a thief and, becoming pregnant, had accused a man-servant of his as the father. He dismissed them both, but took back the man; the girl fell into evil courses and was scourged through the streets, which she attributed to him and repeatedly threatened revenge. He failed to identify Pedro de Toledo, but he proved an irreproachable career in the cathedral for twenty-five years, and he escaped with abjuration de levi and suspension for a year from celebrating mass—enough to dishonor him.[173]

EVIDENCE FOR THE DEFENCE

This hopeless floundering in the effort to rebut evidence of which the source was so carefully concealed appears still more strongly in the case of Diego de Uceda, in 1528, before the same tribunal, on a charge of Lutheranism, founded on a chance talk with a stranger at Cerezo, while travelling from Burgos to Córdova. The suppression of time and place and of details, in the publication, threw him on a false scent and he imagined the accusation to have arisen from a conversation some nights later at Guadarrama, with the Archpriest of Arjona, and all his energies were wasted on the attempt to prove that the latter talk was blameless, leaving the real testimony against him uncontroverted. It was a game at cross-purposes, in which the inquisitors allowed him to entangle himself hopelessly. Incidentally, the record affords a vivid picture of the agony of suspense endured by the prisoner in his cell during the inevitable delays arising from the method of procedure. He was chamberlain of Fernando de Córdova, clavero or treasurer of the Order of Calatrava; as such he had followed the court, and his witnesses in abono were necessarily scattered. Six months were consumed in finding them and securing their testimony, during which he sought repeated audiences, imploring the inquisitors for the love of God to despatch his case. At one time a second messenger was sent at his expense, to Burgos and to Valladolid, with long instructions, and he counted the days that it would take at ten leagues a day, the customary allowance for foot-couriers. At last he was summoned to an audience and told that all his witnesses save four had been examined and he could name others in their place. This he declined; he had produced ample testimony as to character but of course had failed to rebut the evidence of the unknown witnesses who had denounced him. As we have already seen, he was tortured, confessed and revoked and was sentenced to appear in an auto de fe, to abjure de vehementi, with a fine of sixty ducats and some spiritual penances, leaving him a dishonored and ruined man for a few careless words to a stranger.[174]

It is to the credit of the tribunals that they seem generally ready to make all effort necessary to obtain the testimony of the witnesses whom they admitted. In 1573, the Suprema orders the Barcelona tribunal to advise a French prisoner so that he could procure from the King of France a safe-conduct for the persons whom he sends thither to procure evidence for him, and the receiver is instructed to pay sixty-four ducats for the expenses of the commission—of course out of the sequestrated property.[175] In 1682, in the trial at Barcelona of Margarita Altamira, a worthless woman, she named as a witness a day-laborer whom she knew only as Isidro. He was hunted for in the city without success and efforts were made to trace him. In Cardona an Isidro Giralt was found and examined but proved not to be the man. Then it was thought that he might be somewhere in the parish of Maya, and the commissioner of Solsona was ordered to find him and send him and his wife to Barcelona, but the search was vain and no one of the name could be found there. Margarita was then asked if she could give any further indications to aid in finding him: she thought that perhaps María Barranco might know something, but on investigation María was found to be dead. Then she mentioned other witnesses who could testify to her good character, and they were duly summoned and interrogated.[176] All this was as it should be, but it depended on the temper of the tribunal and the prisoner had no power to help himself.

This customary defence of disabling the witnesses for enmity, although it was mostly blind groping to identify them, was sometimes successful. The most extensive use of the tacha that I have met occurs in the Toledo case of Gaspar Torralba, in 1531. His prosecution for Lutheranism was merely an effort to get rid of a troublesome and truculent neighbor, in the little village of Vayona, near Chinchon. There were thirty-five witnesses against him, for he was generally hated and feared. In his defence he enumerated no less than a hundred and fifty-two persons, including his wife and daughter, as his mortal enemies, and he gave the reason in each case which amply justified their enmity. In this comprehensive drag-net he succeeded in catching nearly all of the adverse witnesses and, in addition, he adduced abonos and indirectas to prove his orthodoxy and regular religious observance. The tribunal evidently recognized the nature of the accusation; he was admitted to bail, July 1, 1532, and finally escaped with a moderate penance.[177] Life must have been scarce worth living in Vayona when he was let loose.

THE DEFENCE

At Valencia, in 1604, there was quite a group of cases showing successful disabling of witnesses among Moriscos. Gaspar Alcadi, accused by two women of saying that he did not believe in Christianity, identified them and proved enmity, so that his case was suspended. One woman accused two men, Vicente Sabdon and Fay Vicente and three women, Angela Bastant, Angela Barday and Gerónima Alamin, but they all succeeded in fastening it upon her and showing her hostility, with the result of a suspension of prosecutions. In 1607 there were several more cases of the same kind.[178] A still more striking instance occurred in 1658, at Valladolid, when a dissolute woman accused three men and thirteen women of Sanabria as Judaizers. They seem to have found little difficulty in identifying and disabling her and were all acquitted, February 1, 1659.[179] In general, however, the records show that the main recourse of the accused, in seeking to identify and disable witnesses for enmity, was rarely successful.

After the wholesale forcible conversions of Jews and Moors a defence was sometimes advanced by the accused that he was not baptized and consequently not a Christian nor subject to the jurisdiction of the Inquisition. There were subtile questions involved in this, on which theologians were not wholly in accord, but in practice the main point turned on whether the fiscal was obliged to prove the baptism. Against this was urged a decree of Paul IV, in 1556, when some Portuguese in Italy defended themselves with this plea, and he ordered the prosecutions to proceed on the ground that, if they had not been baptized, they would not have been tolerated in Portugal. An old inquisitor, about 1640 says that in Saragossa he had a case of a Morisco who advanced such a plea and, on examination of his parish registers, no record of his baptism could be found, although there were those of his elder and younger brother. In spite of this, on the strength of the papal decision, the prosecution went on and his sentence of reconciliation was confirmed by the Suprema.[180]

In all this the function of the advocate was reduced to a minimum. He was to make no suggestions to his client except to confess; he was not to advise him to disable any of the witnesses or to name witnesses of his own. His sole duty, we are told, was to abandon a pertinacious heretic and to admonish a Christian to tell the truth. If he chanced to gain outside information, he was not to communicate it to the prisoner but to the inquisitors and, if any friend or kinsman spoke to him about the case, he was to say that he knew nothing of it. So, in the written defence which he was required to present, he could use no information of his own, for the accused alone could state facts, and the advocate could only set them forth. He could receive nothing from the prisoner or his friends, even after the case was ended; the tribunal fixed his fee, which was paid to him by the receiver.[181]