The feelings of the orthodox towards these innovators are comprehensively expressed by Fray Francisco Alvarado, the leading champion of conservatism against the Córtes of 1810. “These philosophers” he says, “have come to disrupt our union, to disturb our peace, to embarrass our defence, to distract our attention, to corrupt our fidelity, to overturn our State, to seize our fortunes, to degrade our reason, to abolish our religion, to—what shall I say?—to make our free cities a hell where nothing but blasphemies are heard and where there is little lacking to replace order with sempiternal horror.”[646] Virulent as is this objurgation, it is but the natural expression of the passions excited by the struggle in progress, which each side felt to be a combat to the death. A moderated philosophism, as we shall see, triumphed in the Córtes of 1810-13 and, although there has followed nearly a century of vicissitudes, some of them sanguinary, it has, at least established its right to existence. The Inquisition was not mistaken in recognizing it, from the first, as its most dangerous enemy—the embodiment of the modern spirit, destined, for better or worse, finally to supplant medievalism.
CHAPTER XIV.
BIGAMY.
FROM an early period the Church assumed jurisdiction over marriage, derived from the function of the priest for its due celebration, and when, in the twelfth century, matrimony was erected into a sacrament, its control became absolute. Monogamy was a distinguishing feature of Christianity, and marriage was declared to be insoluble. The sacrament could be enjoyed but once during the life of both spouses, and its repetition was invalid, all of which naturally came within the province of the episcopal courts. The infraction of the ecclesiastical law, however, considered as an offence against society, was subject to secular penal statutes and, under the Partidas, it was punishable with relegation to an island for five years and confiscation for the benefit of children, to which penalties Juan I, in the Córtes of Briviesca, in 1387, added branding in the face.[647] In 1532, the Córtes of Segovia petitioned to have it made a capital offence, which Charles V refused, but added half confiscation and, in 1548, the Córtes of Valladolid substituted the galleys, the term for which Philip II, in 1566, defined as ten years, with public vergüenza.[648]
RESISTANCE IN CATALONIA
Thus there was ample provision for the trial and punishment of the offence by the spiritual and secular authorities, and there was no necessity for the assumption of jurisdiction by the Inquisition. Presumably it obtained a foothold through the laxity of the marriage tie among Moors and Jews, so that bigamy, like abstinence from pork and wine and change of linen on Saturday, created suspicion of heresy. This showed itself first in Aragon. As early as 1486, the Saragossa tribunal burnt in effigy the fugitive Dionis Ginot, a notary, for marrying a second wife during the lifetime of the first, and a number of other cases followed in which bigamy is conjoined with Judaic practices. For simple bigamy the penalty seems to have been perpetual prison, the punishment indicated for two culprits in the auto of February 10, 1488.[649] It also involved confiscation, for a letter of Ferdinand, October 22, 1502, to his receiver at Saragossa, orders him to deliver to certain parties ninety-four head of cattle confiscated on the bigamist Dornan Morrell.[650] In some way bigamy was construed as heresy for, in the Barcelona auto of February 3, 1503, Pere de Sentillana was required to abjure for marrying two wives, and in that of July 2, of the same year, Pere Ubach abjured for marrying in Rhodes and in Barcelona.[651]
This was one of the grievances of the Catalans, which they thought to remove in the Concordia of 1512, where it was agreed that bigamists, male and female, should be tried by the Ordinaries and not by the Inquisition, but they unwarily allowed the insertion of a provision “unless they believe erroneously as to the sacrament of matrimony or are suspect in the faith.”[652] As this practically left it to the discretion of the inquisitors, Inquisitor-general Mercader, in his Instructions of 1514, was safe in telling the tribunals that they were not to try cases of bigamy unless there was presumption of erroneous belief as to the sacrament, and this was the answer sent, in 1515, to the Sicilians, when they made complaint of inquisitorial abuses.[653] Leo X, when, in 1516, confirming the Concordia of 1512, in the bull Pastoralis officii, was careful to make the same reservation,[654] but in this, as in everything else ostensibly gained by the Concordia, the subjects of the crown of Aragon found themselves deceived and when the Córtes, about 1530, complained that the inquisitors assumed jurisdiction over bigamy, the curt answer was that they observed the provisions of the law.[655]
A case occurring in 1513 suggests ample justification for this struggle to prevent the Inquisition from acquiring cognizance of bigamy. In 1477, Don Jorje de Bardaxí betrothed himself by words de præsenti to Leonor Olzina but, learning that she was pregnant or had borne a child, he never married her in the face of the Church or consummated the marriage. He remained single, but she, in 1497, married Antonio Ferrer. In some way the Saragossa tribunal got wind of the betrothal twenty years previous and prosecuted her in 1513. In her defence she alleged that Bardaxí had previously been married to Doña Juana de Luna, whereupon the tribunal commenced proceedings against him for the betrothal in 1477 and would have thrown him into the secret prison had he not been too infirm. He was a man of consideration and appealed for protection to Ferdinand, who ordered that he should not be arrested, that every care be taken to eliminate perjured testimony and that, on conclusion of the case, the papers be sent to Inquisitor-general Mercader.[656] The result is unknown, but Bardaxí was at least exposed to the terrors of an inquisitorial trial on a vague assertion of an indiscretion committed thirty-six years before.
INFERENTIAL HERESY
Whether there was any formal opposition in Castile it would be impossible to say. There was a decided assertion of episcopal jurisdiction in the Council of Seville, held in 1512 by Archbishop Deza, the former inquisitor-general, which imposed a fine of two thousand maravedís on bigamists, in addition to the penalties provided by law; long absence of a missing spouse was not to be accepted as an excuse, and the death must be notorious or be duly proved before the Ordinary, before he could permit a second marriage.[657] Still, there was no special reclamation on the subject by the Córtes of Valladolid in 1518, nor any provision in the reform attempted through the Chancellor Jean le Sauvage. As in Aragon, the question turned theoretically upon the presumable heresy of the bigamist. About 1534, Arnaldo Albertino devoted an elaborate discussion to the matter,[658] but all this was academical rather than practical. In 1537, Dr. Giron de Loaysa, in his inspection of Toledo, reported that he had found everywhere many bigamists; they were so numerous that the inquisitors prosecuted them without distinction as to belief, and he suggested that special orders should be accordingly issued as the offence was so evil and so frequent.[659] This would have been superfluous. Simancas admits that, if the culprit says that he knew that he could not have two wives and thus did not err in the faith, it would seem that the Inquisition was estopped from proceeding, but custom has prevailed, though it would appear wiser to leave them to the episcopal courts. In a later work, however, he says that the Inquisition prosecutes them as thinking wrongly of the sacrament and impiously abusing it.[660] Thus it became settled, and otherwise the Inquisition would have been obliged to abandon its jurisdiction, for about 1640 an experienced inquisitor tells us that the accused never admitted heresy, but always professed consciousness of guilt. He was always asked whether he regarded a bigamous marriage as lawful and, if he answered in the affirmative, he was to be punished as a heretic.[661]
To keep up this fiction, the formal accusation by the fiscal asserted heresy or at least suspicion, at first in a simple form but subsequently with much amplification, stigmatizing the accused as an apostate heretic, or at least gravely suspect in the faith, for “thinking ill of the holy sacrament of matrimony and its institution and adopting the error of the heretics against the prohibition of polygamy.”[662] With the same view he was always required to abjure for suspicion of heresy, in the earlier time de vehementi, but later de levi.[663] The flimsiness of the pretext, however, is exposed by the fact that, in the Suprema, bigamy cases were always considered in the afternoon sessions, at which assisted the two lay members of the Council of Castile, and where public pleas and other secular matters were discussed.[664] Still, when the jurisdiction once was acquired, it was asserted to be exclusive and was defended with customary aggressiveness. The civil magistrates were unwilling to surrender their immemorial cognizance of the crime, and assumed that it was mixti fori, leading to frequent collisions. The tenacity with which these contests were conducted is illustrated in a Sardinia case, in 1658, where the royal court arrested Miquel Fiori for bigamy. When the inquisitors heard of this, they demanded the accused and the papers but, three hours after the demand was made, Fiori was paraded through the streets of Cagliari, receiving two hundred lashes, and was sent to the galleys. The indignant tribunal refused conference and competencia, and promptly excommunicated the veguer and his assessor. Then the quarrel was transferred to Madrid, where the Suprema and the Council of Aragon alternately for two years pelted the king with consultas, the former assuming that the crime was purely one of faith and that the jurisdiction of the Inquisition was exclusive; there could be no competencia, because the inquisitor-general was the sole judge of what constituted cases of faith. In October, 1659, the king ordered the excommunication of his judges to be lifted; the Suprema replied that it had commanded this in the previous February, but the inquisitors had given reasons for not obeying; it had repeated the order in August and presumed that it had been complied with, but it had not been and, in November the king reiterated his commands. He decided, however, as usual, in favor of the Inquisition, and the judges were summoned to surrender the prisoner and the papers, but they replied that Fiori had escaped from the galleys and that the papers had been sent to Spain. The Suprema regarded this as an evasion and the utmost it would do was to suspend the excommunications for six months at a time, especially as the offending judges refused to present themselves before the tribunal and beg for absolution.[665]