47th. In cases where only the semi-proof, or some indications of a crime exist, the accused has been sometimes permitted to clear himself canonically before the number of persons appointed in the ancient instructions; the inquisitors, the ordinary, and the consultors, may therefore allow it if they think proper, but they must observe that this proceeding is very dangerous, not often used, and can only be employed with great caution[30].
48th. The third manner of proceeding in this case is to employ the question. This measure is thought to be dangerous and not certain, because its effects depend upon the physical strength of the subject; consequently no rule can be prescribed on this point, but it is left to the prudence and equity of the judges. Nevertheless the question shall only be decreed by the ordinary, the consultors, and the inquisitors, or applied without their concurrence, as circumstances may occur, when their presence would be necessary[31].
49th. When it is necessary to decree the torture, the accused shall be informed of the motives for employing it, and the offences for which he is to suffer it; but after it has been decided he shall not be examined on any particular fact, he shall be allowed to say what he pleases. Experience has shown that if he is questioned on any subject when pain has reduced him to the last extremity, he will say anything that is required of him, which may be injurious to other persons, in making them parties concerned, and producing other inconveniences.
50th. The question shall not be decreed until the process is terminated, and the defence of the accused has been heard. As the sentence of recourse to the question admits of an appeal, the inquisitors shall consult the council, if the case is doubtful; if the accused can maintain his appeal, it shall be admitted. But if the point of law is clear, the inquisitors are not required to consult the council, or to admit the application of the accused; they are at liberty to proceed immediately to execution, as if it had not been made.
51st. If the inquisitors think that the appeal ought to be admitted, they shall send the writings of the process to the Supreme Council, without informing the parties, or any individual not belonging to the tribunal, because the council will send an order to the inquisitors, if it is considered proper that they should be made acquainted with it.
52nd. If an inquisitor is challenged, and there is another in the tribunal, the first shall abstain from performing his office, and the second shall take his place, after the council has been informed of the circumstance. If there is only one inquisitor in the tribunal, the proceedings shall be suspended until the decision of the Supreme Council has been received; the same course shall be pursued if there are several inquisitors, and they are all challenged.
53rd. Twenty-four hours after the accused has been put to the question, he shall be asked if he persists in his declarations, and if he will ratify them. The notary of the tribunal shall appoint the time for this formality, and likewise that for the application of the question. If at this moment the accused confesses his crimes, and afterwards ratifies his declarations in such a manner that the inquisitors may believe him to be converted, repentant, and sincere in his confessions, he may be admitted to reconciliation, notwithstanding the article in the ordinance of Seville, in 1484. If the accused retracts his declaration, the inquisitors shall proceed according to rule.
54th. When the inquisitors, the ordinary, and the consultors decree the question, they shall not decide on what is to be done after it has been administered, as the result is uncertain, nothing being regulated on this point. If the accused resists the torture, the judges shall deliberate on the nature, form, and quality of the torture which he has suffered; on the degree of intensity with which it was inflicted; on the age, strength, health, and vigour of the patient: they shall compare all these circumstances, with the number, the seriousness of the indications which lead to the supposition of his guilt, and they shall decide if he is already cleared by what he has suffered; in the affirmative they shall declare him free from prosecution, in the other case he shall abjure according to the nature of the suspicion.
55th. The judges, notary, and the executioners shall be present at the torture; when it is over, the inquisitors shall cause an individual who has been wounded to be properly attended, without allowing any suspected person to approach him, until he has ratified his declarations.
56th. The inquisitors shall take every precaution that the gaoler shall not insinuate anything to the accused relating to his defence, that he may only follow his inclination in all that he says. This measure does not allow the gaoler to fill the office of guardian or defender to the prisoner, or even representative of the fiscal; he may however serve as a writer for the accused, if he does not know how to write: in this case he shall be prohibited from substituting his own ideas for those of the accused.