A History of the Inquisition of Spain; vol. 4

by Henry Charles Lea

UNNATURAL CRIME

Sicily also belonged to Aragon, but was not included. In 1569 Philip II ordered the death-penalty to be rigidly enforced, without exceptions, and that the informer should receive twenty ounces from the estate of the convict, but this was slackly obeyed by the secular courts and, in the Concordia of 1597, he reserved the crime exclusively to the Inquisition, with the understanding that a papal brief should be applied for, relieving inquisitors from irregularity for relaxing culprits. Application was accordingly made to Clement VIII, but, after Philip’s death, the Viceroy Duke of Maqueda and the ambassador, the Duke of Sessa, at the instance of influential Sicilians, urged Clement to refuse, which he not only did but forbade the Inquisition to take cognizance of such cases. The tribunal complained that this deprived it of its jurisdiction over its own officials, to which the reply was that it was not the pope’s intention to exonerate them from it. The tribunal therefore continued to punish its own guilty ministers, and the number of cases cited would seem to indicate that the crime was by no means uncommon. The punishments inflicted were comparatively moderate—occasionally imprisonment for life or banishment, perpetual or temporary, from the place of offending, or deprivation of office with heavy fines.[797]

Dr. Martin Real, who tells us this, writing in 1638, further informs us that, throughout Italy, the crime was everywhere treated with a leniency wholly inadequate to its atrocity. The Roman Inquisition, moreover, took no cognizance of it. When, in 1644, some Conventual Franciscans rendered themselves conspicuous by sounding the praises of the practice, the Congregation contented itself with ordering their superiors to proceed against them with severity.[798]

In Portugal, João III had no sooner got his Inquisition into working order than he was seized with the desire to obtain for it jurisdiction over the pecado maao. This he pursued with characteristic obstinacy, while the papacy manifested its customary repugnance. It was not until after his death that Pius IV, in a brief of February 20, 1562, committed the decision to the conscience of Cardinal Henrique, confirming in advance what he might do—but trials were to be conducted according to municipal law. Henrique had no scruples, but, in 1574, he applied to Gregory XIII for confirmation and for using the process for heresy in these cases, when again the pope committed to him the decision and ratified it in advance.[799] In 1640, the Regulations prescribe that the offence is to be tried like heresy, and the punishment is to be either relaxation or scourging and the galleys. In a case occurring in the Lisbon auto of 1723, the sentence was scourging and ten years of galley-service.[800]

In their general hostility to the Inquisition, the Aragonese kingdoms objected to this extension of its jurisdiction. There were complaints by the Córtes and, in the various Concordias and settlements, there were concessions secured which gave to the secular judges some participation in the trials. Into the details of these more or less temporary arrangements it is scarce worth while to enter, except to mention that, in the struggle which resulted in the Concordia of 1646, Aragon gained the point that the crime was recognized as mixti fori, to be tried by either the secular court or the Inquisition, according to priority in commencing action, and that familiars were included in this.[801]

The current practice may be gathered from the answers of Valencia and Saragossa, in response to inquiries by the Suprema, in 1573. In Valencia arrest was accompanied by sequestration, but not in Aragon, where the crime did not entail confiscation. In Aragon, when a new inquisitor was inducted, the papal briefs were presented to him and he accepted them, and all sentences commenced by qualifying the inquisitors as juezes comisarios apostolicos para conocer en el crimen de sodomia, showing that this was a special jurisdiction. The routine of procedure in the two tribunals did not vary much; the process was somewhat simpler than in heresy trials, the accused was allowed ample means of defence in counsel, advocates and procurators, witnesses’ names were not suppressed, except in Valencia when the accused was of high rank, in which case the Suprema was consulted. After the publication of evidence, the procurator had the right to examine the witnesses. The Concordia of 1568 had provided that convicts should not appear in autos, but in Aragon this was left to the discretion of the tribunal, which generally exhibited them there.[802]

UNNATURAL CRIME

These reports make no allusion to the concurrence of secular judges, but the practice may be gathered from a letter of Philip II, March 17, 1575, to the Captain-general of Catalonia, where it appears that, when a convict was relaxed, the royal court demanded to see the papers of the case before pronouncing sentence. This the king pronounced to be wholly wrong and ordered the custom of Valencia and Aragon to be followed—that, when a case was ready for decision, the inquisitors notified the captain-general, who delegated judges to take part in the consulta, after which the sentence was to be executed without further examination.[803]

Torture was freely employed, even on the testimony of a single accomplice. This raised a question in Aragon, where the use of torture was forbidden, as the trials were to be conducted in accordance with municipal law, but the Inquisition replied that the brief of Clement VII had been applied for at the request of the secular judges, who had found themselves unable to convict for lack of torture, and desired, for that reason, the Inquisition to have jurisdiction—the truth of which assertion may well be doubted. In 1636 there was raised a question as to torturing witnesses who revoked, but it was decided in the negative.[804]

Punishment varied with time and place. In Aragon, spontaneous confession was encouraged by simply reprimanding the culprit, warning him and ordering him to confess sacramentally, and this was confirmed by the Suprema, in a decree of August 6, 1600. In Valencia, however, self-denunciation was visited with scourging and galleys and, if testimony of accomplices supervened, with relaxation.[805] For those accused and regularly convicted, the statutory and ordinary punishment was burning. When, in 1577, the Captain-general of Valencia had some hesitation as to his duty, in the case of two culprits relaxed to him by the Inquisition, Philip II ordered him to execute them promptly and, as late as 1647, in an auto at Barcelona, one was garroted and burnt.[806] Yet, on the whole, there seems to have been a disinclination to relax these offenders, who could not escape, as heretics could, by confession and conversion. In 1616 we find the Suprema asking the Valencia tribunal why it had not confiscated the estate of Dr. Pérez, convicted of this crime and, in 1634, it enquires whether there is any fuero prohibiting the pena ordinaria, when guilt has been fully proved and the offender is of full age.[807] About 1640, an experienced inquisitor informs us that, in Saragossa, the penalty for those over 25 was relaxation; for minors, scourging and the galleys, but he adds that this is not observed; he had seen many thus convicted and condemned to relaxation, but the Suprema always commuted the penalty.[808]