He counsels them to confine the prisoner in an uncomfortable dungeon, fettered hand and foot; there to visit him frequently and exhort him to confess. Should he ultimately do so, he is to be treated as a penitent heretic[117]—in other words he is to escape the fire but suffer perpetual imprisonment.
The term perpetual imprisonment, or perpetual immuration, is not to be accepted too literally. It lay at the discretion of the inquisitors to modify and commute part of such sentences, and this discretion they exercised so far as the imprisonment was concerned. But the confiscation of the prisoner’s property and the infamy attaching to himself, his children, and his grandchildren—by far the heavier part of the punishment—could not in any way be commuted.
However tardily confession might come from the negativo, the inquisitors must accept and recognize it. Even if he were already bound to the stake, and, at last, being taken with the fear of death, he turned to the friar who never left him until the faggots were blazing, admitted his guilt and offered to abjure his heresy, his life would be spared. And this for all that they recognized that a confession in such extremes was wrung from him by “the fear of death rather than any love of truth.”
It must naturally occur to any one that, conducted in secret as were the examinations of the witnesses, and no opportunity being afforded the accused of demolishing the evidence offered against him, since he was rarely informed of its extent, many a good Catholic, or, at least, many a man innocent of all heretical practices, must have gone to his death as a negativo. For the methods of the Holy Office opened the door extraordinarily wide to malevolence; and human nature being such as it is—and such as it was in the fifteenth century—it is not to be supposed that malevolence never seized the chance, that it never slunk in through that gaping door to vent itself in such close and sheltered secrecy—to strike in the back, in the dark, with almost perfect immunity to itself, at the man who was hated, or envied, or whom it was desired to supplant.
It was not sufficient for the prisoner to protest his innocence. He must prove it categorically. An innocent man might be unable to furnish categorical proof; witnesses for the defence were extremely difficult to obtain by one who was charged with heresy; it was a dangerous thing to testify in favour of such a man; should his conviction none the less follow, the witness for the defence might find himself prosecuted as a befriender, or fautor, of heretics. Yet, even when testimony for the defence was obtained, the judges leaned upon principle to the side of the accusers; and since they considered it their mission to convict rather than to judge, they would always assume that the accusers were better informed than the defenders.
Therefore this danger of death to the innocent existed. The inquisitors themselves did not lose sight of it, for they lost sight of nothing. But how did they provide for it? Pegna has a great deal to say upon the subject. He tells us that some authorities pretend that when a negativus protests that he staunchly believes all that is taught by the Roman Catholic Church such a man should not be abandoned to the secular arm.
But this is an argument mentioned by the scholiast merely that he may demolish it. It is indefensible, he says with confidence; and, as indefensible, it is almost universally rejected.
Torquemada most certainly did not favour it. He lays it down clearly in Art. XXIV of his first “Instrucciones” that a negativo must be deemed an impenitent heretic, however much he may protest his Catholicism. The accused will not satisfy the Church, which demands confession of his fault solely that she may pardon it; and she cannot pardon it until it is confessed. That is the inquisitorial view of the matter.
It is evident that the danger of occasionally burning an innocent man did not perturb the inquisitorial mind. In fact, Pegna reveals to the full the equanimity with which it could contemplate such an accident.
“After all,” says he, “should an innocent person be unjustly condemned, he should not complain of the sentence of the Church, which was founded upon sufficient proof, and which cannot judge of what is hidden. If false witnesses condemned him, he should receive the sentence with resignation, and rejoice in dying for the truth.”[118]