Article IV is the only one that may be said to concern the actual jurisprudence of the Holy Office. This is intended not so much to soften the rigour as to remove the inconveniences that might arise out of Article X of the “Instructions” of 1484.
By that article it was decreed that confiscation should be retrospective—i.e. that a heretic’s property should be confiscate not from the day of the discovery of his heresy, but from the date of the offence itself. So that any property that might in the meantime have been alienated—whether in the ordinary way of commerce or otherwise—must be considered as the property of the Holy Office, and was to be seized by the Holy Office, no matter into whose hands it might meanwhile have passed.
Such a decree, as will be seen, was proving a serious hindrance to trade; for it became unsafe to purchase anything from any one, since should either party to the transaction subsequently be discovered to have fallen into the sin of heresy prior to that transaction, the other would be stripped of the acquired property, and might be subjected to the entire loss. Moreover, as proceedings were taken against the dead, and as there was no limit imposed upon the retrospection allowed to inquisitors, no man could account himself safe from confiscations incurred through the sin of some other from whom he or his forbears had acquired the property.
The vagueness of this article urgently demanded amending, and this was the purpose of Article IV of the “Instructions” of 1485. It decreed that all contracts concluded before 1479 should be accounted valid, although it might come to be discovered against either of the contracting parties that he was guilty of heresy at the time of such contract.
This is the only instance in which we find Torquemada promulgating a decree to soften the rigour of any previous enactment, and it is very clear that it is a decree dictated not by clemency but by expediency.
In the event of fraud, or of any one being a party to a fraud to abuse the privilege conferred by this article, Torquemada provided that the offender, if reconciled, should receive a hundred lashes and be branded on the face with a hot iron; whilst, if not reconciled—even though he should be a good Catholic—he must suffer confiscation of all his property.[135]
To justify the punishment of branding on the face, the case of Cain is urged as a proper precedent, and so modern a historian as Garcia Rodrigo does not hesitate to put this seriously forward.[136]
Three years later—in 1488—Torquemada found it necessary to add a further fifteen articles to his “Instructions,” and we may anticipate a little by briefly surveying their provisions at this stage.
Complaints to Rome of the injustices and the excessive rigour of the inquisitors—a constant feature of Torquemada’s Grand-Inquisitorship—had by that time become so numerous that the Pope found it necessary to order Torquemada to re-edit what Amador de los Rios very aptly terms his “Code of Terror.”[137]
The chief ground of these complaints had concerned the delays that so commonly occurred in bringing an accused to trial. When a prisoner’s acquittal ultimately chanced to take place, it was after a long term of imprisonment for which there was no compensation or redress; and when the person so treated was a man of position and influence, it is natural that he would protest strongly against the treatment to which he had been subjected before it was discovered that no charge could be sustained against him. The real reason of these delays must not be supposed to lie in dilatoriness or sluggishness on the part of the inquisitors. Indeed, the excessive dispatch with which they conducted the affairs of their tribunal is a matter to the scandal of which Llorente draws attention more than once—and particularly in the course of chronicling the fact that in the year of its introduction into Toledo this court dealt—as we shall see—with no less than some 3,300 cases, 27 of the accused being burnt and the remainder penanced in various degrees. He protests with reason that it is utterly impossible that at such a rate of procedure evidence can properly have been sifted and any sort of justice done.