A History of the Inquisition of Spain; vol. 3

by Henry Charles Lea

Even this sentence was not necessarily a finality for, if the accused offered a new defence, it had to be considered and acted upon before proceeding further.[15] Moreover he had theoretically a right to appeal to the inquisitor-general from this, as from all other interlocutory sentences. This right varied at different times. A ruling by the Suprema, in 1538, appears to indicate that it was granted as a matter of right, but the Instructions of 1561 tell inquisitors that, if they feel scruple, they should grant it, but if satisfied that the sentence is justified they should refuse the appeal as frivolous and dilatory.[16] Still the right to ask it was so fully recognized that, if the accused was not twenty-five years of age and thus a minor, his curador or guardian was required to be present, in order to interject an appeal if he saw fit, and I have met with an instance of this in the case of Angela Pérez, a Morisco slave, before the Toledo tribunal in 1575, where it was as usual unsuccessful, for the Suprema confirmed the sentence.[17] Tribunals seem not infrequently to have allowed appeals, but, with the growing centralization in the Suprema, they became superfluous and a formula, drawn up in 1690, directs that no attention be paid to them.[18]

CONDITIONS

When the indications of guilt were too slender to justify torture, the consulta de fe sometimes voted to threaten torture.[19] Then the sentence was formally drawn up and read to the accused, he was taken to the torture-chamber, stripped and perhaps tied on the potro or escalera, without proceeding further. A curious case of this was that of Leonor Pérez who, at the age of seventy, was sentenced, May 3, 1634, in Valladolid, to be placed in conspectu tormentorum. When stripped, on May 10th, the executioner reported marks of previous torture; the proceedings were suspended and, on May 13th, she admitted that, twenty years before, she had been tortured in Coimbra. On June 14th the sentence was again executed, but, before being stripped, she confessed to some Jewish beliefs and then fainted. A postponement was necessary and two days later she revoked her confession. The case dragged on and it was not until August 1, 1637 that she was condemned to abjure de vehementi, to six years of exile, a fine of two hundred ducats, and to be paraded in vergüenza, but we still hear of her as in prison, early in 1639.[20] It required strong nerves to endure this threat of torture, with its terrifying formalities and adjurations, and it was frequently effective.

The conditions held to justify torture were that the offence charged was of sufficient gravity, and that the evidence, while not wholly decisive, was such that the accused should have the opportunity of “purging” it, by endurance proportionate to its strength. From the inquisitor’s point of view, it was a favor to the accused, as it gave him a chance which was denied to those whose condemnation was resolved upon. This is illustrated by a highly significant case in the Toledo tribunal in 1488. Juan del Rio had lived long in Rome, where he was present in the jubilee of 1475; by the arts of the courtier he won the favor of Sixtus IV and returned to Spain about 1483, loaded with benefices—among them a prebend in the Toledo cathedral—which excited cupidity and enmity. He was an Old Christian, of pure Biscayan descent, who could not be suspected of Judaism, but he was a loose and inconsiderate chatterer; in the Spain which he had left there was much licence, in the Rome where he had so long sojourned there was more; he could not, on his return, accommodate himself to the new order of things, and his reckless talk gave the opportunity of making vacancies of his numerous preferments. The evidence against him was of the flimsiest; the most serious charge was that, when a tenant had been unable to pay rent on account of the Inquisition, he had petulantly wished it at the devil. At a later period he would have had a chance to purge the evidence by the water-torture, but this was not permitted him; he was hurried to the stake as a pertinacious negativo, leaving his spoils to those who could grasp them.[21]

It was a well-accepted maxim of the civil law that torture should not be employed when the penalty of the crime charged was less severe than the infliction of torture—an equation of suffering which afforded to the doctors ample opportunity of defining the unknown quantity. This was fully accepted by the Inquisition and we are told that torture is not indicated for propositions merely offensive, rash, scandalous or blasphemous, or for the assertion that simple fornication is not a mortal sin, or for heretical blasphemy, or sorcery, or for propositions arising from ignorance, or for bigamy or solicitation in the confessional, or for lying under excommunication for a year, or for other matters which infer only light suspicion of heresy, even though for some of these offences the punishment was scourging and the galleys. Torture is freely alluded to as an irreparable injury the use of which would be unjustifiable in such matters.[22]

CONDITIONS

This, however, was, like everything else in this nebulous region, open to considerable laxity in application. When Francisco de Tornamira, a boy of eighteen and page of the Duke of Pastrana, was tried in 1592, on the charge of having said that Jews and Moors could be saved if they had faith in their respective beliefs, he denied and was tortured till he confessed, and then the triviality of his offence was admitted by subjecting him only to abjuration de levi, to hearing a mass as a penitent in the audience-chamber, and to a reprimand. The same tribunal in 1579, tried Stefano Grillen, an Italian, who, in a discussion with some chance fellow-travellers, maintained that the miracles at the shrines of Our Lady of Atocha and of la Caridad were wrought by the Virgin herself and not by her images. He freely confessed but was tortured—apparently on intention—and was dismissed with the same trivial punishment as Tornamira.[23] Even more suggestive is the case of Juan Pereira, a boy of fifteen, tried, in 1646, for Judaism at Valladolid. The proceedings were dilatory and he gradually became demented; nothing could be done with him and opinions were divided as to the reality of his insanity. The Suprema was applied to and sagely ordered torture to find out. It was administered, April 22, 1648, but the method of diagnosis was not as successful as its ingenuity deserved and, in August, he was sent to a hospital for six months, with instructions to observe him carefully. As his name after this disappears from the records, he probably died in the hospital.[24] It is evident that the Inquisition did not take to heart the warning issued by the Suprema, in 1533, that torture was a very delicate matter.[25]

When we come to inquire as to the character of evidence requiring torture for its elucidation, we find how illusory were all the attempts of the legists to lay down absolute rules, and how it all ended in leaving the matter to the discretion of the tribunal. As confession, though desired, was not essential to conviction, the negativo who was convicted on sufficient evidence was not to be tortured, but was to be relaxed. Even this rule, however, could be set aside at the caprice of the judge, though he was warned, in such cases, to put on record a protest that he did not direct the torture against the matters that had been proved, for the very good reason that endurance of torture might purge them and nullify the proof.[26] It was impossible to reduce to a logical formula that which in its essence was illogical, or to frame an accurate definition of evidence that was insufficient for conviction yet sufficient for torture. It was easy to say that semiplena evidence suffices, but what was semiplena? One authority will tell us that a single witness, even an accomplice, justifies torture, another that three accomplice witnesses are requisite. One impartial and unexceptionable witness, again, is sometimes held to require public fame as an adjuvant, but the records are full of cases in which torture was employed on the unsupported testimony of a single witness. The weight of other more or less confirmatory evidence was also keenly debated, without reaching substantial agreement—whether flight before arrest, or breaking gaol, or vacillation and equivocation when examined, or even pallor, was sufficient justification.[27] It is not surprising, therefore, that, as a practical result, we are told that all these questions must be left to the discretion of the judge, to be decided in each individual case.[28] Under such conditions it would be useless to expect consistency of practice in all tribunals and at all periods. We have seen above that cases were sometimes suspended because evidence had not been ratified, yet the Toledo tribunal, in 1584, tortured Lope el Gordo for that very reason, because the chief witness against him had not ratified his testimony, and it is satisfactory to add that Lope endured the torments and thus earned suspension of his case.[29]

The diminuto, whose confession did not cover all the adverse evidence, was, according to rule, to be tortured in order to account for the deficiency. If he endured without further admission, he was to be punished on the basis of what he had confessed, but if he did not thus purge the evidence, he was to be sent to the galleys. This was sometimes done in mere surplusage, apparently to gratify the curiosity of the tribunal, as in the Toledo case of Antonio de Andrada, in 1585, who confessed what was amply sufficient for his punishment, but, as there were some omissions, was tortured to elucidate them. In the seventeenth century, however, we are assured that there was much caution used in torturing diminutos, and that it was not done unless the omitted matters were such as to call for relaxation. If they concerned accomplices, however, whom the culprit was suspected of shielding, he was tortured in caput alienum. Retraction or vacillation of confession necessarily required torture to reconcile the contradiction; this occurred chiefly with timid persons, frightened by the demand of the fiscal for torture, and thus led to make admissions which they subsequently recalled, thus bringing upon themselves what they had sought to avoid.[30] The question of intention, in the performance of acts in themselves indifferent, was, as we have seen, the frequent occasion of torture, as there was no other means known to the jurisprudence of the period, which was bent on ascertaining the secrets of the offender’s mind.