A History of the Inquisition of Spain; vol. 4

by Henry Charles Lea

PENALTIES

The time-honored episcopal jurisdiction over bigamy was treated with similar imperiousness. In 1650 the Suprema ordered the Valencia tribunal to demand from the Ordinary the case of Joana Arais, charged with bigamy, because it was a matter of faith, pertaining exclusively to the Inquisition. So, in 1658, when the Bishop of Salamanca arrested Domingo Moreno on the same charge, as soon as the Valladolid inquisitors heard of it, they claimed and obtained and tried him.[666] Yet, notwithstanding this, the episcopal authority over the sacrament of matrimony was acknowledged and, in all sentences, there was a clause referring to the Ordinary the question as to the validity of the marriages.

The Roman Inquisition was less aggressive than the Spanish for, while it claimed jurisdiction, it was willing that bigamy should be regarded as mixti fori between the secular, the spiritual and the inquisitorial tribunals. If the civil magistrate was the first to take action he could carry a case to its conclusion, and punish the delinquent according to the municipal law, but the episcopal Ordinary, or the inquisitor, ought to demand the culprit for examination as to his belief in the sacrament and then, after making him abjure and imposing appropriate penance, return him to the secular court.[667] Offenders were treated with somewhat greater severity than in Spain. The abjuration was always de vehementi and torture was freely employed for intention. The penalty was the galleys—five years in ordinary cases and seven or more when justified by circumstances.[668]

In Spain, as we have seen, the secular laws provided penalties, but these were disregarded by the Inquisition, when it secured exclusive jurisdiction, and in practice the tribunals exercised a wide discretion. Ordinarily men were punished with one or two hundred lashes and from three to five years of galleys at the oar, though those of gentle blood were exempt from scourging and were sent to presidios or to military service in the galleys.[669] The Seville auto of May 13, 1565, may be taken as an example, where there were fourteen bigamists. Ten of them were scourged with an aggregate of seventeen hundred lashes, and five, in addition, were sent to the galleys, with an aggregate of twenty-nine years. A woman had two hundred lashes, with prohibition to leave Seville for ten years, and two others were paraded in vergüenza. The heaviest punishment was that of the Bachiller Cristóbal de Ordaz, a physician, who was fined in two hundred ducats, provided that this did not exceed half his property, he suffered two hundred lashes and was sent to the galleys for six years irremissibly, after which he was banished for life, with a threat of perpetual galleys in case of infraction.[670]

Full allowance was made for extenuating circumstances. If husband or wife had been absent for years and reasonable effort had been made to ascertain their fate, or false news of death had been received, the accused was acquitted or the penalty reduced.[671] This is illustrated in the case of Anton de Cueba, a peasant of Cienpozuelos, before the Toledo tribunal in 1606. Both his wives were of his native place. He left it for awhile and on his return found his first wife absent. Then news came of her death in the hospital of Anton Martin in Madrid. He went there and verified it, returning with a certificate, on the strength of which and of public notoriety, four years afterwards, a licence for a second marriage was granted. Then the first wife returned and he was placed on trial. All this was carefully verified and the case was suspended.[672] There can, indeed, be little doubt that honestly misguided bigamists fared better at the hands of the Inquisition than they would have done in the secular courts, while the thorough organization of the tribunals enabled it to collect evidence throughout the land, whether for severity or mercy, in a manner impossible to either the civil or episcopal authorities. Its unwearied perseverance was sometimes severely taxed in the case of soldiers, removed from post to post, and is fairly illustrated in that of Joseph Antonio Ferro, a private in the regiment of Castile, accused, in 1763, to the Barcelona tribunal. His corps shifted its quarters and he was transferred to the regiment del Rey; his movements were followed up for years, the tribunals of Barcelona, Seville and Valladolid were successively employed on the case and, in 1769, that of Madrid was charged with its conduct.[673]

JURISDICTION DISPUTED

Discretion could be used to sharpen as well as to mitigate penalties, as may be seen in the case of the most accomplished bigamist in the records, Antonio ——, who appeared in the Valladolid auto of October 4, 1579. He confessed promptly and freely that within ten years he had married fifteen wives. It was the profession by which he earned a livelihood, for he wandered through the land marrying and running away with whatever he could secure. He must have been a most plausible scamp, for his favorite device was to personate some one who had disappeared, after gathering information sufficient to enable him to maintain the deception. This plan he repeated eleven times, in some cases establishing claims to considerable property. His sentence was to appear in the auto with a mitre bearing the insignia of all the fifteen marriages (usually the figure of a woman for each), two hundred lashes and the galleys for life. In view of the latter clause it seemed slightly superfluous to remit to the Ordinary, as usual, the question as to which of the women he should live with.[674]

As the eighteenth century advanced, the inquisitorial claim to exclusive jurisdiction was called in question. In the New Granadan case of Alberto Maldonado, of Santafé de Bogotá, the alcalde resisted the interference of the Inquisition with his prosecution of the culprit; the matter was brought before the royal Audiencia, which decided in favor of the tribunal, on grounds of expediency. Appeal was made to the home government, resulting in a decree, February 18, 1754, to the effect that bigamy was mixti fori and that cognizance belonged to the jurisdiction taking first action. Against this the Suprema presented a consulta, March 18th, but to no purpose. The decree was enclosed to all viceroys in a royal cédula, commanding that, in no case, should a competencia be admitted, for no custom could prevail against the regalías, without the royal consent. If the Inquisition desired to take action for the suspicion of heresy involved, it could do so after the culprit had served out the punishment imposed by the royal courts.[675]

The Inquisition was irrepressible and, in spite of these positive commands, a competencia arose in New Granada, which induced Carlos III to reconsider the questions. Consultas were called for and were presented, by the Suprema in April, 1765, and by the Council of Indies in April, 1766, resulting in a decree of July 21, 1766, by which Carlos restored the exclusive jurisdiction of the Inquisition. This was sent to the viceroys, September 8th and we find it ordered to be duly obeyed in Mexico by the Marquis de Croix, February 26, 1767.[676] Carlos soon saw reason to change his views. The Auditor de la Guerra had tried and sentenced an invalid soldier, when the Inquisition interposed and demanded the papers. This aroused him to a sense of the incongruity of the position, and he ordered the Royal Council to consider the matter. It presented a unanimous report, January 10, 1770, in conformity with which he decreed, February 5th, that the case belonged exclusively to the Auditoria de la Guerra. He utilized the occasion, moreover, by adding that he had ordered the inquisitor-general to instruct inquisitors that, in cases of this kind, they must observe the laws of the kingdom and not embarrass the royal judges in matters appertaining to them, but must limit the use of their faculties strictly to heresy and apostasy and not dishonor the royal vassals by arrests without manifest preliminary proof. All the royal tribunals were ordered to try and punish bigamists, according to the laws and to be zealous in preventing any contravention of the decree.[677]

This was a bitter rebuke, sullenly resented by the Inquisition. There were many pending cases in the tribunals and they forthwith suspended proceedings. This led to a royal letter of September 30, 1771, in which authority was granted to proceed with all cases not on trial in the royal courts, and all that might be denounced to the Inquisition, but subject to the condition that, when the culprit was not reo de fe, through belief that bigamy is lawful, sentence should not be rendered or punishment be inflicted but that the case should then be handed over to the courts having jurisdiction.[678]