A History of the Inquisition of Spain; vol. 3

by Henry Charles Lea

WITNESSES

Yet it is possible that in some cases, when torture appears to be pure surplusage, there may have been the kindly intention of contributing to the salvation of the sufferer, by inducing or confirming his conversion; for habitual persecution for the greater glory of God induced a state of mind precluding all rational intellectual processes, where the faith was concerned. Thus Rojas tells us that there should be no hesitation in the use of torture, when the salvation of the culprit’s soul was involved, so that he might be reconciled to the Church and undergo penance through which he might be saved.[31] This reasoning was urged in the case of Réné Perrault, in 1624, by some of the consultores of the tribunal of Toledo. His crime of maltreating the Host was public and unquestionable, but he had varied in his statements as to his faith; the consulta de fe was unanimous in ordering torture to discover possible accomplices, but some of the members desired a special additional torture in order to confirm him in the faith and save his soul.[32]

That witnesses should be tortured, in order to obtain or confirm their testimony, is an abuse which, repulsive as it may seem to us, has been, with more or less disguise, a practice wherever torture has been used. It is true that the Roman law prohibited that one who had admitted his own guilt should be examined as to that of another, and this principle, adopted in the False Decretals, became a part of the early canon law.[33] The Inquisition, however, regarded the conviction of a heretic as only the preliminary to forcing him to denounce his associates; the earliest papal utterance, in 1252, authorizing its use of torture, prescribed the employment of this means to discover accomplices and finally Paul IV and Pius V decreed that all who were convicted and confessed should, at the discretion of the inquisitors, be tortured for this purpose.[34] The question préalable or définitive, in which the convict was tortured to make him reveal his associates, became, through the influence of the Inquisition, a part of the criminal jurisprudence of all lands in which torture was employed. It was, in reality, the torture of witnesses, for the criminal’s fate had been decided, and he was thus used only to give testimony against others.

The Spanish Inquisition was, therefore, only following a general practice when it tortured, in caput alienum, those who had confessed their guilt. No confession was accepted as complete unless it revealed the names of those whom the penitent knew to be guilty of heretical acts, if there was reason to suspect that he was not fully discharging his conscience in this respect, torture was the natural resort. Even the impenitent or the relapsed, who was doomed to relaxation, was thus to be tortured and was to be given clearly to understand that it was as a witness and not as a party, and that his endurance of torture would not save him from the stake. The Instructions of 1561, however, warn inquisitors that in these cases much consideration should be exercised and torture in caput alienum was rather the exception in Spain, than the rule as in Rome.[35] In the case of the negativo, against whom conclusive evidence was had, and who thus was to be condemned without torture, the device of torturing him against his presumable accomplices afforded an opportunity of endeavoring to secure his own confession and conversion. We have seen this fail, in 1596, in the Mexican case of Manuel Diaz, nor was it more successful in Lima, in 1639, with Enrique de Paz y Mello, although the final outcome was different. He persistently denied through five successive publications of evidence, as testimony against him accumulated in the trials of his associates. He was sentenced to relaxation and torture in caput alienum; it was administered with great severity without overcoming his fortitude, and he persisted through five other publications as fresh evidence was gathered. Yet at midnight before the auto de fe, in which he was to be burnt, he weakened. He confessed as to himself and others and his sentence was modified to reconciliation and the galleys, while good use was made of his revelations against thirty of his accomplices.[36]

NO EXEMPTIONS

The torture of witnesses who were not themselves under trial was permitted when they varied or retracted, or so contradicted other witnesses that it was deemed necessary thus to ascertain the truth; but whether clerical witnesses could be so treated was a subject of debate. As a rule torture in such cases was directed to be moderate, neither light nor excessive, but when testimony was revoked it could be repeated up to three inflictions.[37] As we have seen above (Vol. II, p. 537) slaves testifying in the cases of their masters could always be tortured if necessary to confirm their evidence. In the prosecution of Juan de la Caballería, in 1488, as accessory to the murder of San Pedro Arbués, his slave-girl Lucía gave compromising evidence which she was persuaded to retract, with the result that she was twice tortured and confirmed it.[38]

Like majestas, in heresy there were no privileged classes exempt from torture. Nobles were subject to it and so were ecclesiastics of all ranks, but the latter were to be tortured less severely than laymen, unless the case was very grave, and they were entitled to a clerical torturer if one could be found to perform the office. As in their arrest, so in torture the sentence, by a carta acordada of 1633, had to be submitted to the Suprema for confirmation.[39]

As regards age, there seems to have been none that conferred exemption. Llorente, indeed, in describing a case in which a woman of ninety was tortured at Cuenca, says that this was contrary to the orders of the Suprema which prescribed that the aged should only be placed in conspectu tormentorum,[40] but I have never met with such a rule. In 1540 the Suprema ordered that consideration should be given to the quality and age of the accused and, if advisable, the torture should be very moderate, while the Instructions of 1561, which are very full, impose no limit of age and leave everything to the discretion of the tribunal.[41] Cases are by no means infrequent in which age combined with infirmity is given as a reason for omitting torture or inflicting it with moderation, but age alone offered no exemption. At a Toledo auto de fe we find Isabel Canese, aged seventy-eight, who promptly confessed before the torture had proceeded very far, and Isabel de Jaen, aged eighty who, at the fifth turn of the cords fainted and was revived with difficulty.[42] In 1607, at Valencia, Jaime Chuleyla, aged seventy-six, after confessing certain matters, was accused by a new witness of being an alfaquí; this he denied and was duly tortured.[43]

Not much more respect was paid to youth. In 1607, at Valencia, Isabel Madalena, a girl of thirteen, who was vaguely accused of Moorish practices, was tortured, overcame the torture and was penanced with a hundred lashes. In the same year that tribunal showed more consideration for Joan de Heredia, a boy of ten or eleven, whom a lying witness accused of going to a house where Moorish doctrines were taught. On his steadfast denial, he was sentenced to be placed in conspectu tormentorum, which was carried out in spite of an appeal by his procurator, but he persisted in asserting his innocence and the case was suspended.[44] Mental incapacity, short of insanity, was not often allowed exemption and it is creditable to the Valencia tribunal that when, about 1710, the Suprema ordered the torture of Joseph Felix, for intention with regard to certain propositions, it remonstrated and represented that he was too ignorant to comprehend the object of the torture.[45]

CONDITION OF PATIENT