This odious garment, its origin and history, shall presently be more fully considered.
Article VII
As the crime of heresy is a very heinous one, it is desired that the reconciled may realize by the penances imposed upon them how gravely they have offended and sinned against Our Lord Jesus Christ. Yet, as it is our aim to treat them very mercifully and kindly, pardoning them from the pain of fire and perpetual imprisonment, and leaving them all their property should they, as has been said, come to confess their errors within the appointed time of grace, the inquisitors shall, in addition to the penances imposed upon the said reconciled, order them to bestow as alms a certain portion of their property, according to the position of the penitent and the gravity of the crimes confessed. These pecuniary penances shall be applied for the Holy War which the most serene Sovereigns are making upon the Moors of Granada, enemies of our Holy Catholic Faith, and to other pious works that may be undertaken. For just as the said heretics and apostates have offended against Our Lord and His Holy Faith, so, after re-incorporation in the Church, it is just that they should bear pecuniary penances for the defence of the Holy Faith.
These pecuniary penances shall be at the discretion of the inquisitors; but they shall be guided by the tariff given them by the Reverend Father Prior of Holy Cross (i.e. by Torquemada).
It was no inconsiderable proportion of their property that was required of them, as may be seen from the penance of “alms” for the war against Granada imposed upon those who were reconciled in Toledo two years later; one-fifth of their property being demanded.(See Fidel Fita in “Boletin de la Real Academia de la Historia,” vol. xi. .)
Article VIII
Should any person guilty of the said crime of heresy fail to present himself within the appointed period of grace, but come forward voluntarily after its expiry and make his confession in due form before having been arrested or cited by the inquisitors, or before the inquisitors shall have received testimony against him, such person shall be received to abjuration and reconciliation in the same manner as those who presented themselves during the term of the said edict, and he shall be submitted to penances at the discretion of the inquisitors. But such penances shall not be pecuniary because his property is confiscate [so that his admission to abjuration is not quite upon the same terms].
But if at the time of his coming to confess and seek reconciliation, the inquisitors should already be informed by witnesses of his heresy or apostasy, or should already have cited him to appear before the Court to answer the charge, in such a case the inquisitor shall receive the penitent to reconciliation — if he entirely confesses his own errors and what he knows of the errors of others — and shall impose upon him heavier penances than upon the former, even up to perpetual imprisonment should the case demand it
This is merely one of those quibbles that permeate this jurisprudence. The article in this last respect is so framed as to make it appear that under such circumstances the inquisitors would be acting more mercifully than against an accused heretic; but the latitude of punishment is such that they need display no such mercy — perpetual imprisonment being the punishment prescribed for any heretic (who is not “relapsed ) seeking reconciliation.
But no persons who shall come to confess after expiry of the period of grace shall be subjected to pecuniary penances — unless their Highnesses should mercifully condescend to remit all or portion of the confiscation incurred by those so reconciled.
This last clause seems rather in the nature of a provision against any merciful weakness on the Sovereigns’ part.
Article IX
If any children of heretics having fallen into the sin of heresy by indoctrination of their parents, and being under twenty years of age, should come to seek reconciliation and to confess the errors they know of themselves, their parents and any other persons, even though they should come after the expiry of the term of grace, the inquisitors shall receive them kindly, imposing penances lighter than upon others in like case, and they shall contrive that these children be tutored in the Faith and the Sacraments of Holy Mother Church, as they are to be excused upon the grounds of age and education.
They are not, however, to be excused to the extent of enjoying any of their parents’ property. That is confiscate by virtue of the parents’ heresy; and by virtue of that same heresy on the part of their parents these children and their own children must remain under the ban of infamy, inhibited from wearing gold or silver, etc., and from holding any office under the crown or any ecclesiastical benefice. It seems almost ironical to talk of imposing light penances upon wretches who are automatically subject to such penalties as these. But by that “light penance” Llorente conceives would be meant their wearing a sanbenito for a couple of years, appearing in it at Mass and being paraded in it in processions.
Article X
Persons guilty of heresy and apostasy, by the fact of their having fallen into these sins, incur the loss of all their property and the administration of it, counting from the day when first they offended, and their said property is confiscate to their Highnesses’ treasury. But in the matter of ecclesiastical pains in the case of those reconciled, the inquisitors in pronouncing upon them shall declare them to be heretics, apostates, or observers of the rites and ceremonies of the Jews; but that since they seek conversion with a pure heart and true faith, and they are ready to bear the penances that may be imposed, they shall be absolved and reconciled to Holy Mother Church.
The object of this article is really to make the act of confiscation retrospective where necessary, so as to circumvent any who should attempt, by alienation of his property, to avoid its confiscation. Since the confiscation was incurred upon the date of the first offence against the Faith, the inquisitors were to trace any property that might subsequently have been disposed of by the delinquent, and even should it have gone to the paying of debts or the endowment of a daughter married to one who was an old and “clean” Christian, the Holy Office must seize and confiscate it to the Royal Treasury.
Article XI
If any heretic or apostate who shall have been arrested upon information laid against him should say that he desires reconciliation and confess all his faults, what Jewish ceremonies he may have observed, and what is known to him of the faults of others, entirely and without reservations, the inquisitors shall admit him to reconciliation subject to perpetual imprisonment as by law prescribed. But should the inquisitors, in conjunction with the diocesan ordinary, in view of the contrition of the offender and the quality of his confession, think well to commute this penance to another lighter one, they shall have faculty so to do.
It seems that this should take place chiefly if the heretic at the first sitting of the court, or upon his first appearance before it, without awaiting the declaration of his offences, should announce his desire to confess and abjure; and such confession should be made before there is any publication of witnesses or of the matters urged by them against him.
Article XII
Should the prosecution of an accused have been conducted to the point of the publication of witnesses and their depositions, but should he then confess his faults and beg to be admitted to reconciliation, desiring formally to abjure his errors, the inquisitors shall receive him to the said reconciliation subject to perpetual imprisonment, to which they shall sentence him — save if in view of his contrition and other attendant circumstances the inquisitors should have cause to consider that the reconciliation of such a heretic is simulated; in such case they must declare him an impenitent heretic and abandon him to the secular arm: all of which is left to the conscience of the inquisitors.
“Abandonment to the secular arm” is, as shall presently be considered, the ecclesiastical equivalent to a sentence of death by fire.
The term “publication of witnesses” must not be accepted literally. What it really meant will become clear upDn reading Article XVI, which was specially framed by Torquemada to modify and limit this time-honoured custom of ci
vil and ecclesiastical courts.
Article XIII
If any of those who are reconciled during the period of grace or after its expiry should fail to confess all their own sins and all that they know of the sins of others, especially in grave cases, and should such omission arise not from forgetfulness but from malice, as may afterwards be proved by witnesses, since it is clear that the said reconciled have perjured themselves, and it must be presumed that their reconciliation was simulated, although they may have been absolved let them be proceeded against as impenitent heretics as soon as the said fiction and perjury are discovered.
Similarly if any person reconciled at the time of the edict of grace or afterwards, shall boast himself in public in such a manner that this can be proved, saying that he did not commit the sins to which he confessed, he must be deemed impenitent and a simulated convert, and the inquisitors shall proceed against him as if he were not reconciled.
Article XIV
If any, upon being denounced and convicted of the sin of heresy, shall deny and persist in his denial until sentence is passed, and the said crime shall have been proved against him, although the accused should confess the Catholic Faith and assert that he has always been and is a Christian, the inquisitors must declare him a heretic and so sentence him, for juridically the crime is proved, and by refusing to confess his error the convict does not permit the Church to absolve him and use him mercifully.
But in such cases the inquisitors should proceed with great care in their examination of the witnesses, closely crossquestioning them, gathering information on the score of their characters, and ascertaining whether there exist motives why they should depone out of hatred or ill-will towards the prisoner.
Article XV
If the said crime of heresy or apostasy is half-proven (semiplenamente provado) the inquisitors may deliberate upon putting the accused to the torture, and if under torture he should confess his sin, he must ratify his confession on one of the following three days. If he does so ratify he shall be punished as convicted of heresy; if he does not ratify, but revokes his confession as the crime is neither fully proved nor yet disproved, the inquisitors must order, on account of the infamy and presumption of guilt of the accused, that he should publicly abjure his error; or the inquisitors may repeat the torture.
There is nothing in this article that may be considered as a departure from or an enlargement upon any of the rules laid down by Eymeric in his “Directorium,” as we shall see when we come to deal with this gruesome subject of torture.
It is urged by apologists that, when all is said, the torture to which the inquisitors had recourse, and, similarly, the punishment of death by fire, were not peculiarly ecclesiastical institutions; that they were the ordinary civil methods of dealing with offenders, and that in adopting them the Church had simply conformed, as was her custom, with that which was by law prescribed.
It is quite true that originally these were the methods by which the secular tribunals proceeded against those who sinned against the Faith. But it must also be borne in mind that if the civil authorities so proceeded they implicitly obeyed the bull “ad extirpanda” of Sixtus IV, which imposed this duty upon them under pain of excommunication.
Owing to the inconvenience that attended this procedure in so far as torture and questions upon matters of Faith were concerned, it was later accounted desirable that the inquisitors themselves should take charge of it. They were enjoined, however, to see to it that there should be no shedding of blood or loss of life, since it was against the Christian maxims that a priest should be guilty of such things. So that when by misadventure it happened that blood was shed or a patient died under the hands of the torturers, the inquisitor conducting the examination became guilty of an irregularity. For this he must seek absolution at the hands of a brother cleric; and the inquisitors were informed — to make matters easier for them and to spare them anxieties in this matter — that they had the right to absolve one another under such circumstances.
But even if we fully admit that the use of torture — and similarly of fire — had been secular institutions of which the Church had simply availed herself as the only methods that commended themselves in such an age, it must still be held against the inquisitors that these methods were by no means tempered or softened in their priestly hands.
Article XVI
It being held that the publication of the names of witnesses who depone upon the crime of heresy might result in great harm and danger to the persons and property of the said witnesses — since it is known that many have been wounded and killed by heretics — it is resolved that the accused shall not be supplied with a copy of the depositions against him, but that he shall be informed of what is declared in them, whilst such circumstances as might lead to the identification of the deponents shall be withheld.
But the inquisitors must, when proof has been obtained from the examination of the witnesses, publish these depositions, withholding always the names and such circumstances as might enable the accused to learn the identity of the witnesses; and the inquisitors may give the accused a copy of the publication in such form [i.e. truncated] if he requires it.
If the accused should demand the services of an advocate, he shall be supplied. The advocate must make formal oath that he will faithfully assist the accused, but that if at any stage of the pleadings he shall realize that justice is not on his side, he shall at once cease to assist the delinquent and shall inform the inquisitors of the circumstance.
The accused shall pay out of his own property, if he have any, the services of the advocate; if he have no property, then the advocate shall be paid out of other confiscations, such being the pleasure of their Highnesses.
It is extremely doubtful if a more flagrant departure from all the laws of equity would be possible than that which is embodied in Torquemada’s enactment on the subject of witnesses.
The notion of an accused hearing nothing of what is deposed against him, of his not even being informed of the full extent of such depositions nor yet confronted with his accusers, is beyond a doubt one of the most monstrously unjust features of this tribunal. And by taking the fullest advantage of that enactment and reducing the proceedings to a secrecy such as was never known in any court, the inquisitors were able to inspire a terror which was even greater than that occasioned by the fires they fed with human fuel at their frequent Autos.
Torquemada based this enactment upon the caution laid down by Eymeric on the score of divulging the names of witnesses. But Eymeric went no further than to say that these names should be suppressed where a possibility of danger to the delators lay in their being divulged. The accused, however, might have the full record of the proceedings read to him, and he might infer for himself who were his accusers. There was no question in Eymeric of any truncations.
Torquemada’s aim is perfectly clear. It was not based, as is said in the article, upon concern for any danger that the delators might incur. For, after all, it shall be made plain before we conclude the survey of inquisitorial jurisprudence, that the wounding or even the death of those witnesses would be regarded (professedly, at least) as an enviable thing; they would be suffering for the Faith, and thus qualifying for the immortal crown of martyrdom. Rather was Torquemada’s object to remove all fear that might trammel delators and stifle delations. The delator must be protected solely to the end that other delators might come forward with confidence to inform against secret heretics and apostates, so that the activities of the Holy Office should suffer no curtailment.
Trasmiera, a later inquisitor, in the course of an eulogium of secrecy, speaks of it as “the pole upon which the government of the Inquisition is balanced, calling for the veneration of the faithful; it facilitates the delations of witnesses, and it is the support and foundation of this tribunal; once deprived of it, the architecture of the edifice must undoubtedly give way.”*
[* “Vida de Arbués,” p, 56.
It is interesting to turn to modern writers who defen
d this secrecy — such, for instance, as the Rev. Sidney Smith, S.J., whose good faith there is no cause to doubt. He writes as follows: “To pass over the question of injury often done to the reputation of third parties, it has occasionally been forced on public attention that crimes cannot be put down because witnesses know that by giving evidence they expose themselves to great risks, the accused having powerful friends to execute vengeance in their behalf. This was exactly the case with the Inquisition. The Marranos had great power through their wealth, position, and secret bonds of alliance with the unconverted Jews. These would certainly have endeavoured to neutralize the efforts of the Holy Office had the trials been open. Torquemada, in his statutes of 1484, gives expressly this defence of secrecy, etc.”— “The Spanish Inquisition,” , in “Historical Papers.”
The argument is specious, and it is fundamentally true. But when it is considered that the delator, so carefully screened from all danger, was protected entirely at the expense of the accused, it becomes clear that such a procedure must argue a reckless eagerness to accumulate convictions. It suffices to reflect that, whilst all the arguments advanced to justify this secrecy could with equal justice have been urged by the contemporary civil courts of Europe, it is impossible to point to a single one that had recourse to so inequitable a measure. The inquisitorial point of view may be appreciated, even with a certain sympathy, by the extremely tolerant. It cannot be justified.]
Collected Works of Rafael Sabatini Page 634
