A History of the Inquisition of Spain; vol. 3

by Henry Charles Lea

Under such circumstances the argument which he would frame was not likely to be of any benefit to his client. If he were young, bright and ambitious, he might endeavor to impress the tribunal with his ability, although the strict secrecy imposed deprived him of the incentive which publicity would give. For the most part, however, he would discharge his nominal duties with as little waste of energy as possible; he had nothing to gain by zeal, and would be careful not to offend the inquisitors and fiscal on whom he was dependent. While, therefore, we occasionally meet with a careful and well-reasoned argument, presenting the case of the accused in the most favorable light, and pointing out the irregularities and illegality and weakness of the evidence, in general the defence is perfunctory, of no real service to the accused, while ostensibly giving him the benefit of defence by a trained lawyer and enabling the tribunal to overrule what might be alleged in his favor.

EXAMINATION OF THE ACCUSED

Meanwhile, at each stage of the case, the accused was subjected to searching examination. By rule, this had to be conducted by the inquisitors, and if there were two, both were required to be present; as the Suprema declared, about 1520, this was necessary to enable them to vote intelligently.[182] The fiscal, very properly, was not allowed to be present, and the notaries or secretaries were ordered to confine themselves to their duties in recording and not to interpose questions. The general instructions for these examinations are praiseworthy. In 1518 the Suprema ordered the avoidance of superfluous questioning, as it might lead the accused to contradict himself through ignorance and, in 1529, as the result of a visitation of Saragossa, it rebuked the inquisitors for asking irrelevant questions instead of confining themselves to the subject matter, as required by the Instructions. The questions were to be clearly and intelligibly put, and the accused was to answer them categorically, yes or no. He was not to be deceived or misled by being made to believe that there was evidence where none existed, nor was he to be questioned about accomplices, unless there were sufficient indications concerning them.[183] Unlike the medieval Inquisition, where every kind of deceit was allowed to entrap the accused into compromising himself, the final rules, formally expressed by Pablo García, were that the inquisitors must carefully abstain from interrogating the prisoner about matters not included or indicated in the evidence, and from leading him to believe that mere suspicions were knowledge founded on proof.[184] Yet, with marked inconsistency, the monitions with which the trials opened, assumed, as we have seen, the guilt of the prisoner, that ample information existed of it, and that his confession was wanted for his own salvation.

As a rule, in these earlier audiences, no questions were put except to ask the accused what he had remembered, and he was left to spontaneous confession, without a guide as to what was expected of him. Sometimes, however, in the later periods a special audiencia de preguntas was ordered, which might last for several days, as in the case of Beatriz López, at Valladolid, in 1697.[185] Ordinarily the real examinations began when the accused answered to the accusation, and were continued after his replies to the publication. At any time, moreover, if he made admissions or a partial confession, the opportunity was taken, by skilful questioning, to bring him, step by step, to full acknowledgement of his offences. In this, leading questions were forbidden. All examinations were to be searching and thorough and, in 1654, the Suprema complained that many crimes remained unpunished because of the carelessness and looseness with which this duty was performed. Inquisitors in general were, therefore, instructed to repeat their questions again and again, until every detail of time, place and circumstance was ascertained.[186]

When the prosecution and defence had thus exhausted all their resources, the latter was required to conclude and the case was pronounced to be concluded, although the fiscal could open it again, if new evidence appeared, and the accused could appeal from this as from all other sentences. It was then ripe for judgement, but the inquisitors were not authorized to pronounce sentence alone. The necessity for episcopal concurrence required the intervention of a representative of the bishop of the prisoner’s diocese and, in addition, the rule of the Old Inquisition was preserved under which some graduates in law and theology were assembled to deliberate and vote with the others. These were called consultors and we have seen that they were a recognized portion of the inquisitorial organization. The whole body formed what was known as the consulta de fe, in whose hands lay the fate of the accused. The number of consultors was uncertain. In 1488, at Barcelona, we hear of a consulta in which five masters of theology and five doctors of canon law were called in, and of another in which there were twelve of each, but such assemblies were unwieldy and, in 1596, the Suprema restricted the number to two theologians and three jurists. There was a scandalous practice allowed by the Instructions of 1561, of having the fiscal present without a vote, in order to give information—information which would be apt to expand into argument. Subsequently this seems to have been confined to some tribunals, but in all he could be called upon to elucidate any doubtful point, either orally or in writing.[187] No such privilege was allowed to the accused. Even lawyers who served as abogados de los presos were declared, in 1538, to be ineligible for service as consultors.[188]

THE CONSULTA DE FE

In the imperfect records of the early trials, there is often no allusion to a consulta de fe, although the sentence generally contains the customary formula that it has been rendered with the advice of learned and God-fearing men. Even this is sometimes omitted, but it is probable that the formality was usually observed although, in the haste of those terrible days, it was, as a rule, little more than a formality. The ordinary custom was to assemble a consulta when a sufficient number of finished cases had accumulated to render an auto de fe desirable, and it could scarce find time for a conscientious scrutiny of the evidence. How business was sometimes despatched is seen in the preparations for the great auto de fe at Ciudad Real, February 23, 1484. Among the victims were Juan de Fez and his wife, on whom the consulta passed sentence, January 28th, although Juan had only confessed, under threat of torture, the day before, and it was not until February 6th that he ratified his confession, so that the condemnation was pronounced before the case was finished.[189] Yet discussion was not wholly wanting. In the case of Diego García, at the consulta held January 18, 1490, eight voted for torture and three for perpetual prison, but at a meeting next day they were unanimous for torture, which Diego endured without confession and thus escaped with moderate penance.[190]

In those early days it was possible, as the records inform us was done, to read the whole case from beginning to end, for, in those hurried proceedings, the records were brief. In later times when the documents of a trial extended perhaps over hundreds—or it might be thousands—of folios, this was manifestly impossible, and there was submitted to the consulta only an abstract containing what was deemed important, when of course it would be within the power of the tribunal to present it in such fashion as it desired. There was a salutary limitation on this by the Suprema, in 1560, when it forbade the preparation of these abstracts by the fiscal, but the necessity for such prohibition is suggestive of existing abuses.[191] Occasionally the consulta exercised the power of summoning and examining the accused, as we have seen in the case of Juan García, in 1541, when there were doubts as to his sanity. It did the same with Juan Vázquez, at Toledo in 1605, which resulted in dismissing the case.[192]

Whether, in these assemblies, the consultors had a deliberative or merely a consultative vote, was a matter of some discussion. In 1515, Cardinal Adrian, and in 1518 the Suprema, instructed inquisitors that though they must not render judgement without consulting jurists, they need not follow their advice, but could consult others and state the reasons for rejecting the previous opinions.[193] Arnaldo Albertino, on the contrary, after debating the question at length, decides that, under the canon law, inquisitors are bound by the majority vote.[194] This ignored the self-dependent organization of the Spanish Inquisition, and Rojas asserts positively that the vote of the consultors is consultative and not decisive.[195] Simancas decides that the true rule is that the inquisitors are not bound by the opinion of the consultors, although the question is debated; the Suprema instructed the tribunal of Córdova that, if the inquisitors and Ordinary are in accord, their opinion prevails over that of all the consultors, yet in Valladolid, unless there is a majority, even if the inquisitors and Ordinary agree, there is discordia and the case is referred to the Suprema.[196] All this was settled by the Instructions of 1561, which declared that, if the inquisitors and Ordinary were unanimous, their vote was decisive against consultors more numerous, but that, whenever there was discordia between the former, the matter was to be referred to the Suprema and, in important cases, even when there was unanimity, it was to be consulted before executing the vote.[197]

DELAYS