When torture was administered, without eliciting a confession, the logical conclusion, if torture proved anything, was that the accused was innocent. In legal phrase, he had purged the evidence and was entitled to acquittal.[81] Such, indeed, was the law, but there was a natural repugnance to being baffled, or to admit that innocence had been so cruelly persecuted, and excuses were readily found to evade the law. On such a subject there could be no definite line of practice prescribed, and the situation is reflected by the Instructions of 1561, which tell the inquisitor that, in such cases, he must consider the nature of the evidence, the degree of torture employed, and the age and disposition of the accused; if it appears that he has fully purged the evidence, he should be fully acquitted, but if it seems that he has not been sufficiently tortured he can be required to abjure either for light or vehement suspicion, or some pecuniary penalty can be imposed, although this should be done only with great consideration.[82] Thus the matter was practically left to the discretion of the tribunal, with the implied admission that, when torture proved unsuccessful, it was merely surplusage.
ENDURANCE WITHOUT CONFESSION
The authorities naturally are not wholly at one with regard to the practical applications of these principles—except that acquittal should rarely be granted and, in fact, while the records are full of cases in which torture was overcome, it is somewhat unusual to find the parties acquitted, or their cases even suspended. About 1600 a writer tells us that these cases are to be treated with some extraordinary penalty or with acquittal or suspension, according to the degree of suspicion that remains, but that Moriscos, however light the suspicion, must appear in an auto de fe and abjure de vehementi and, if there has been evidence by single witnesses, they must be sent to the galleys for three years or more; with other culprits, if the suspicion is light, there may be acquittal or suspension, but suspension is the more usual. It all depends upon the degree in which the evidence has been purged by the torture.[83] As this degree was a matter purely conjectural, inquisitorial discretion was unlimited.
The rule as to Moriscos is borne out by the Valencia auto de fe of 1607, in which there appeared sixteen who had overcome the torture, most of whom were visited with imprisonment, scourging or fines.[84] With their expulsion in 1609-10, there was no further call for discrimination, and the general practice is expressed about 1640, by an experienced inquisitor, who tells us that, when there have been several single witnesses, the accused who overcomes the torture should be subjected to some severe extraordinary punishment, such as abjuring de vehementi, with confiscation of half his property, or a heavy fine—the latter being preferable as it is more easily collected and the culprit endures it better in order to preserve his credit.[85] That this reflects the current practice would appear from a Cuenca auto de fe, June 29, 1654. Don Andrés de Fonseca had been required to abjure de vehementi, at Valladolid in 1628; the evidence of his relapse was strong, but insufficient for conviction; he endured torture without confessing; then further evidence supervened and he was again tortured with the same ill-success; he appeared in the auto as a penitent, abjured de levi, with ten years’ exile and a fine of five hundred ducats. Doña Theodora Paula had overcome the torture and had abjuration de lev, six years’ exile and a fine of three hundred ducats. Doña Isabel de Miranda had been unsuccessfully tortured and was sentenced to two years’ exile and three hundred ducats. So, after fruitless torture, Doña Isabel Henríquez had the same punishment, and Manuel Lorenzo Madureyra was sentenced to abjuration de vehementi, ten years’ exile and five hundred ducats fine.[86] It is to the credit of the Valladolid tribunal that, in 1624, it showed itself more lenient and suspended six cases in which torture proved fruitless, inflicting no punishment except six years of exile on María Pérez, who was charged with false-witness.[87]
Perhaps the frequency with which torture was overcome may be partially explained by bribery of the executioner. This was rendered difficult by the secrecy surrounding all the operations of the tribunals, yet it was possible, and the kindred of one who was arrested would naturally seek to propitiate the minister of justice in case the prisoner should fall into his hands. At a Valencia auto de fe, in 1594, there appeared ninety-six Morisco penitents of whom fifty-three had been tortured without extracting confessions.[88] It may possibly be only a coincidence that, in 1604, Luis de Jesus, the torturer of the tribunal was prosecuted for receiving money from Moriscos, but we may readily imagine that communities, living in perpetual dread of the Inquisition, might tax themselves to subsidize the executioner regularly.[89] A similar case occurs in the Córdova auto of June 13, 1723, in which appeared the executioner, Carlos Felipe, whose offence is discreetly described as fautorship of heretics and unfaithfulness in their favor, in the discharge of his office.[90]
FREQUENCY
It is a little remarkable that, although the use of torture was so frequent and must have been generally known, there appears to have been a shrinking from admitting it in the sentences publicly read in the autos de fe, which habitually recited the details of the trials—possibly attributable, in part at least, to a desire to preserve secrecy, although it is particularly marked in the early period when secrecy had not become so rigid as it was subsequently. Indeed, in the sentence of Juan González Daza, who confessed under torture in 1484, at Ciudad Real, it is mendaciously asserted that he pertinaciously denied until he learned that his accomplice, Fernando de Theba, had confessed, when he did so freely.[91] This continued as a rule, though occasionally there is less reticence. In one sentence I have found it alluded to—that of Mari Gómez, at Toledo, in 1551.[92] Sometimes there is a veiled allusion to it, as though the inquisitors could not conceal it wholly, but felt a certain shame in admitting it openly. Thus in the sentence of Elvira del Campo (see p. 24), which gives a very detailed account of the incidents of the trial, it is stated that, on using “mas diligencias,” with her she admitted the charges, and in the sentence of Doctor Zapata, in 1725, “cierta diligencia” is alluded to as having been employed.[93]
It would of course be impossible to compile statistics of the torture-chamber, or to form a reasonably accurate estimate of the number of cases in which it was employed during the career of the Inquisition. Some fragmentary data, however, can be had, as in the record of the Toledo tribunal between 1575 and 1610. During this period it tried four hundred and eleven persons for heretical offences admitting of the use of torture, and in these it was used once on one hundred and nine, and twice on eight, besides two cases in which it had to be stopped on account of the fainting of the patient, and seven in which confession was obtained before it commenced. There were also five cases in which the accused was placed in conspectu tormentorum.[94] In all, we may say that here its agency was invoked in about thirty-two per cent. of heretical prosecutions. This is probably less than the average. In a number of cases tried by the tribunal of Lima between 1635 and 1639, nearly all the accused appear to have been tortured, while the report of the tribunal of Valladolid for 1624 shows that of eleven cases of Judaism and one of Protestantism, eleven were tortured and, in 1655, every case of Judaism, nine in number, was subjected to torture.[95]
After all, numbers, however they may impress the imagination, are not supremely important. They are simply a measure of the greater or less activity of the tribunals and not of the principles involved. Whenever there was a doubt to solve, whether as to the sufficiency of the evidence, the intention of the accused, the completeness with which he had denounced his associates, or other inscrutable matter, recourse to torture was a thing of course. In not a few cases, indeed, there seems to have been an almost infantile confidence in its power as a universal solvent. About 1710, Fernando Castellon, on trial at Valencia for Judaism, claimed not to be baptized and was promptly tortured to find out, but without success.[96] In 1579 the Toledo tribunal had to deal with Anton Moreno, an aged peasant, accused of entertaining views too liberal as to salvation; torture seemed the only means of definition and, between the turns of the garrote, he was made to express his opinions as to the saving effects of death-bed repentance and the viaticum on a sinner who had been duly baptized with the water of the Holy Ghost. There was ghastly ludicrousness in the attempt, under such persuasion, to ascertain the beliefs of an untutored old man, on these subtle questions of scholastic theology, ending with the result that he was adjudged to be worthy only of abjuration de levi, with a reprimand and hearing of a mass in the audience-chamber.[97]
FEES