A History of the Inquisition of Spain; vol. 3

by Henry Charles Lea

TO the modern mind the judicial use of torture, as a means of ascertaining truth, is so repellant and illogical that we are apt to forget that it has, from the most ancient times, been practised by nearly all civilized nations. With us the device of the jury has relieved the judge of the responsibility resting upon him in other systems of jurisprudence. That responsibility had to be met; a decision had to be reached, even in the most doubtful cases and, where evidence was defective and conflicting, the use of torture as an expedient to obtain a confession, or, by its endurance, to indicate innocence, has seemed, until modern times, after the disuse of compurgation and the judgements of God, to be the only means of relieving the judicial conscience. It was admitted to be dangerous and fallacious, to be employed only with circumspection, but there was nothing to take its place.[1]

That it should be used by the Inquisition was a matter of course, for the crime of heresy was often one peculiarly difficult to prove; confession was sought in all cases and, from the middle of the thirteenth century, the habitual employment of torture by the Holy Office had been the most efficient factor in spreading its use throughout Christendom, at the expense of the obsolescent Barbarian customs. It is true that Spain was loath to admit the innovation. In Castile, which rejected the Inquisition, Alfonso X, notwithstanding his admiration of the Roman law, required that confession must be voluntary and insisted that, if obtained by torture, it must subsequently be freely ratified, without threats or pressure.[2] In the kingdoms of Aragon, which admitted the Inquisition, torture remained illegal, and it was only by the positive commands of Clement V that it was employed, in 1311, on the Templars.[3] By the time that the Spanish Inquisition was organized, however, torture in Castile was in daily use by the criminal courts, and there could be no question as to the propriety of its employment by the Holy Office. In Aragon, Peña tells us that, although it was forbidden in secular jurisprudence, it was freely permitted in matters of faith. Yet its use was jealously watched, for when the aid of torture was sought in the case of a prisoner accused of the murder of a familiar, the Córtes of 1646 complained of it as an unprecedented innovation, which was only prevented by the active intervention of the diputados and viceroy.[4] Valencia had been less rigid in excluding torture from its courts, but so limited its use that, in 1684, the tribunal reported that, in cases of unnatural crime (of which it had cognizance, subject to the condition of trial by secular process), it no longer used torture, because the methods permitted by the fueros were so light that the accused felt no fear of them, and they were useless in extracting confession.[5]

MORE MODERATE THAN IN ROME

We shall see that occasionally tribunals abused the use of torture, but the popular impression that the inquisitorial torture-chamber was the scene of exceptional refinement in cruelty, of specially ingenious modes of inflicting agony, and of peculiar persistence in extorting confessions, is an error due to sensational writers who have exploited credulity. The system was evil in conception and in execution, but the Spanish Inquisition, at least, was not responsible for its introduction and, as a rule, was less cruel than the secular courts in its application, and confined itself more strictly to a few well-known methods. In fact, we may reasonably assume that its use of torture was less frequent, for its scientific system of breaking down resistance, in its long-drawn procedure, was more effective than the ruder and speedier practice of the secular courts where, as we are told by Archbishop Pedro de Castro of Granada, it was notorious that no one confessed except when overcome by torture.[6]

In this respect, the comparison between the Spanish and the Roman Inquisition is also eminently in favor of the former. We shall have occasion presently to see the limitations which it placed on the use of torture, while in Rome it was the rule that all who confessed or were convicted in matters of faith were tortured for the further discovery of the truth and the revelation of accomplices. In addition to this there were many classes of cases in which torture was employed by Rome to extort confession and in which it was forbidden in Spain—those involving mere presumption of heresy, such as solicitation, sorcery, blasphemy etc. Moreover in Rome the in arbitrio judicum applied not only to the kind and duration of the torture but also to its repetition.[7] Spanish writers on practice, therefore, were justified in claiming for their own tribunals a sparing use of torture unknown in Italy, while, as regards its severity, the frequency with which in the trials we find that the accused overcame the torture would indicate that habitually it was not carried to extremity, as it so frequently was in the secular courts. No torture-chamber in the Inquisition possessed the resources of the corregidor who labored for three hours, in 1612, to obtain from Diego Duke of Estrada confession of a homicide—the water torture, the mancuerda, the potro, hot irons for the feet, hot bricks for the stomach and buttocks, garrotillos known as bone-breakers, the trampa to tear the legs and the bostezo to distend the mouth—and all this was an every-day matter of criminal justice.[8]

The indirect torture of especially harsh imprisonment was not unknown to the Inquisition, and was occasionally employed for the purpose of breaking down obstinacy. It was not, as in the medieval Inquisition, prescribed as an ordinary resource, but it was at the discretion of the tribunal and could at any time be brought into play, as in the case of a pertinacious heretic, in 1512, who was consigned to the most noisome part of the prison, and afflicted in various ways, in the hope of enlightening his understanding.[9] In the later period of leisurely action, protracted imprisonment was frequently resorted to, in the hope of inducing repentance and conversion, when wearing anxiety and despair weakened the will as effectually as the sharper agonies of the pulley and rack. There was also the ingenious device, frequently effective, by which the fiscal concluded his formal accusation with a demand that, if necessary, the accused should be tortured until he confessed. This was unknown in the earlier period, but the Instructions of 1561 recommend it, giving as a reason its good results, and also that torture requires a demand from the prosecutor and a notification to the defendant, who is unprepared for it at this stage of the trial.[10] After this it became the universal custom in all cases admitting of torture, and the profound impression produced on the unfortunate prisoner can be readily conceived.

PRELIMINARIES

Torture itself, however, was regarded as too serious to be left to the arbitrary temper of a baffled or angry inquisitor, and was preceded by formalities designed to prevent its abuse. It was the last resort when the result of a trial left doubts to be satisfied. After the prosecution and defence had closed, and the consulta de fe had assembled to consider the sentence, if the evidence was too weak for condemnation while the innocence of the accused was not clear, it could adopt a vote to torture and postpone the decision to await the outcome. Even in the ferocity of the early period this deliberateness was frequently observed, although in the reckless haste of procedure it was often omitted. Thus, in the case of Diego García, a priest accused of having said twenty years before, when a boy, that the sacrament was bread, the consulta held two meetings, January 18 and 19, 1490, and finally voted torture. There was no haste however and it was not until February 11th that García was exposed to the very moderate water-torture of about a quart of water. No confession was obtained and he was untied, with the protest that he had not been sufficiently tortured, but it was not repeated and, on February 26th, he was acquitted and restored to his fame and honor, though, with the curiously perverse inquisitorial logic, he was made to abjure de vehementi and forbidden to celebrate mass for six months.[11] The vote of the consulta however was not universal and, in 1518, the Suprema ordered it to be always observed, but a clause in the Instructions of 1561, reminding inquisitors that they must not inflict torture until after hearing the defence shows how difficult it was to restrain their arbitrary action.[12] Even in the early eighteenth century, in reviewing a summary of cases of Valencia, from 1705 to 1726, the Suprema rebuked the tribunal for torturing Sebastian Antonio Rodríguez without previous consultation, but at this period the consulta de fe was becoming obsolete and everything was centering in the Suprema.[13]

The vote of the consulta was still only preliminary. After it, the accused was brought into the audience-chamber, where all the inquisitors and the episcopal Ordinary were required to be present. He was notified of the decision of the consulta; if he was a diminuto, the points in which his confession had failed to satisfy the evidence were pointed out; if a negativo, no explanations were necessary; if it was on intention or in caput alienum he was made to understand it. He was adjured, in the name of God and the Blessed Virgin, to confess fully, without false evidence as to himself or others and, if this failed to move him, a formal sentence of torture was signed by all the judges and read to him. It recited that, in view of the suspicions arising against him from the evidence, they condemned him to be tortured for such length of time as they should see fit, in order that he might tell the truth of what had been testified against him, protesting that, if in the torture he should die or suffer effusion of blood or mutilation, it should not be attributed to them, but to him for not telling the truth. If the torture was to discover accomplices, care was taken to make no allusion to him and to give him no chance of clearing himself, for he was assumed to be already convicted.[14]