The clause relating to advocates is founded upon the ancient ecclesiastical law which forbade an advocate to plead for heretics. His being enlisted under the present clause would clearly serve to increase the peril of the accused.
Article XVII
The inquisitors shall, themselves, examine the witnesses, and not leave such examinations to their notaries or others, unless a witness should be ill or unable to come before the inquisitor and the inquisitor similarly unable to go to the witness, in which case he may send the ordinary ecclesiastical judge of the district with another upright person and a notary to take the depositions.
Article XVIII
When any person is put to the torture the inquisitors and the ordinary should be present — or, at least, some of them. But when this is for any reason impossible, then the person entrusted to question should be a learned and faithful man (hombre entendido y fiel).
Article XIX
The absent accused shall be cited by public edict afifixed to the door of the church of the district to which he belongs, and after thirty days’ grace the inquisitors may proceed to try him as contumaciously absent. If there is sufficient evidence of his guilt, sentence may be passed upon him. Or, if evidence is insufficient, he may be branded a suspect and commanded — as is due of suspects — to present himself for canonical purgation. Should he fail to do so within the time appointed, his guilt must be presumed.
Proceedings against the absent may be taken in any of the following three ways:
(i) In accordance with the chapter “Cum contumatia de hereticis,” citing the accused to appear and defend himself upon certain matters concerning the Faith and certain sins of heresy, under pain of excommunication;. if he does not respond, he shall be denounced as a rebel, and if he persists in this rebellion for one year he shall be declared a formal heretic. This is the safest and least rigorous course to adopt.
(2) Should it seem to the inquisitors that a crime against any absent can be established, let him be cited by edict to come and prove his innocence within thirty days — or a longer period may be conceded if such is necessary to permit him to return from wherever he may be known to be. And he shall be cited at every stage of the proceedings until the passing of sentence, when, should he still be absent, let him be accused of rebellion, and should the crime be proved he may be condemned in his absence without further delay.
(3) If in the course of inquisitorial proceedings there is presumption of heresy against an absent person (although the crime is not clearly proved) the inquisitors may summon him by edict commanding him to appear within a given time to clear himself canonically of the said error, on the understanding that should he fail to appear, or, appearing, should fail to clear himself, he shall be deemed convicted and the inquisitors shall proceed to act as by law prescribed.
The inquisitors, being learned and discriminating, will belect the course that seems most certain and is most practicsale under the particular circumstances of the case.
Any person condemned as contumacious became an outlaw, whom it was lawful for any man to kill.
CANONICAL PURGATION, which is mentioned in this article, differs considerably from ABJURATION, and the difference must be indicated.
It is applicable only to those who are accused by the public voice — i.e. who have acquired the “reputation” of heresy — without yet having been detected in any act or speech that might cause them to be suspected of heresy in any of the defined degrees of such suspicion.
It almost amounts to a distinction without a difference, and is an excellent instance of the almost laboured equity in which this tribunal indulged in matters of detail whilst flagrantly outraging equity in the main issues.
For Canonical Purgation, says Eymeric, (“Directorium,” pars iii. ,) the accused must find a certain number of sureties or contpurgatores, the number required being governed by the gravity of the (alleged) offence. They must be persons of integrity and of the same station in life as the accused, with whom they must have been acquainted for some years. The accused shall make oath upon the Gospels that he has never held or taught the heresies stated, and the contpurgatores shall swear to their belief that this is the truth. This Purgation must be made in all cities where the accused has been defamed.
The accused shall be given a certain time in which to find his contpurgatores, and should he fail to find the number required he shall at once be convicted and condemned as a heretic.
And Pegna adds, in his commentary upon this, that any who shall be found guilty of heresy after having once been in this position is to be regarded as a “relapso” and delivered to the secular arm. For this reason he enjoins that Canonical Purgation should not lightly be ordered, as it is so largely dependent upon the will of third parties.
Eymeric adds, further, that sometimes Canonical Purgation may be ordered to those who are defamed by the public voice but who are not in the hands of the inquisitors. Should they refuse to surrender, the inquisitors shall proceed to excommunicate them, and if they persist in their excommunication for one year they shall be deemed heretics, and subject to the penalties entailed by such a sentence.
Article XX
If any writings or trials should bring to light the heresy of a person deceased, let proceedings be taken against him — even though forty years shall have elapsed since the offence — let the fiscal accuse him before the tribunal, and if he should be found guilty the body must be exhumed.
His children or heirs may appear to defend him; but should they fail to appear, or, appearing, fail to establish his innocence, sentence shall be passed upon him and his property confiscated.
It will, of course, be obvious that since no good or useful purpose could be served by instituting proceedings against the dead, nothing but cupidity can have inspired so barbarous a decree as this. The avowed object of the Inquisition — and very loudly and insistently avowed — was the uprooting of heresies to prevent their spread, and the inquisitors maintained that it was a painful necessity thrust upon them by their duty to God to destroy those who persisted in heresy, lest these, by their teaching and example, should contaminate and imperil the souls of others. Thus the Inquisition justified itself, and removed all doubt as to the purity of its motives.
But how should this justification apply to the trial of the dead — even though they should have been dead for over forty years?
The provision, however, was not Torquemada’s own. He followed in the footsteps of earlier inquisitors. He found his precedent in the 120th question propounded by Eymeric— “Confiscatio bonorum haeretici fieri potest post ejus mortem.” In this the author of the “Directorium” lays it down that although in civil law legal action against a criminal ceases with his death, such is not to be the case where heresy is concerned, on account of the enormity of the crime. (It may seem that, had he been quite honest, he would have said, “on account of the profits that may accrue from the prosecution.”)
Heretics, he pursues, may be proceeded against after their death, and, if convicted, their property may be confiscated — and this within forty years of their decease — depriving the heirs of all enjoyment of it, even though the third generation should be in possession.
All that Torquemada did was to extend the term of procedure beyond the forty years to which Eymeric had limited it.
And to the foregoing Eymeric adds that, should the heirs at any time have acquired knowledge that the deceased was a heretic, they shall be censured for having acted in bad faith and kept the matter secret! By this he actually puts it upon men to come forward voluntarily and accuse their dead fathers or grandfathers of heretical practices, to the end that they themselves may be rendered destitute and infamous to the extent of being incapacitated from holding any public office or following any honourable profession — and this though they themselves should be the most faithful of Catholics, untouched by the faintest breath of suspicion!
It is beyond words a monstrous and inequitable enactment. Yet, Hke all else, they can just
ify it. If there is one thing in which the inquisitors were truly admirable, it is in the deftness with which they could justify and reconcile with their conscience the most inhuman practice. They would answer questions as to the lawfulness of this proceeding by urging that they did it with the greatest reluctance, but that their duty demanded it to the end that the living should beware how they failed in fidelity to the Faith, lest punishment should overtake them in their descendants after they themselves had passed beyond the reach of human justice. Thus would they represent the act as salutary and to the advantage of the Faith. And since there is at least a scintilla of truth in this, who shall say that they did not tranquillize their consciences and delude themselves that the confiscations were a mere incident which nowise swayed their judgment?
That proceedings against persons deceased were by no means rare is shown by the frequent records of corpses burnt — one of the purposes for which they were exhumed; the other being that they must cease to defile consecrated ground.
Article XXI
The Sovereigns desiring that inquisition be made alike in the domains of the nobles as in the lands under the Crown, inquisitors shall proceed to effect these, and shall require the lords of such domains to make oath to comply with all that the law ordains, and to lend all assistance to the inquisitors. Should they decline to do so, they shall be proceeded against as by law established.
Article XXII
Should heretics who are delivered to the secular arm leave children who are minors and unmarried, the inquisitors shall provide and ordain that they be cared for and reared by some persons who will instruct them in our Holy Faith. The inquisitors shall prepare a memorial of such orphans and the circumstances of each, to the end that of the royal bounty alms may be provided to the extent necessary, this being the wish of the Sovereigns when the children are good Christians, especially in the case of girls, who should receive a dower sufficient to enable them to marry or enter a convent.
Llorente tells us that although he went through very many records of old proceedings of the Inquisition, in no single instance did he discover a record of any such provision in favour of, the child of a condemned heretic. (“Historia Critica,” vol. ii. .)
Harsh as were the decrees of the Inquisition in all things, in nothing were they so harsh as in the enactments concerning the children of heretics. However innocent themselves of the heresy for which their parents or grandparents might have suffered, not only must they go destitute, but further they must be prevented from ever extricating themselves appreciably from that condition, being inhibited — to the second generation — from holding any office under the Crown, or any ecclesiastical benefice, and from following any honourable or lucrative profession. And, as if that were not in itself sufficient, they were further condemned to wear the outward signs of infamy, to go dressed in serge, without weapons or ornaments, and never ride on horseback, under pain of worse befalling them. One of the inevitable results of this barbarous decree was the extinction of many good Spanish families of Jewish blood in the last decade of the fifteenth century.
This the inquisitors understood to be the literal application to practical life of the gentle and merciful precepts of the sweet Christ in Whose name they acted.
Eymeric and his commentator Pegna make clear, between them, the inquisitorial point of view. The author of the “Directorium” tells us that commiseration for the children of heretics who are reduced to mendicity must not be allowed to soften this severity, since by all laws, human and divine, it is prescribed that the children must suffer for the sins of the fathers. (Pars iii. quaest. cxiv. and cxv.)
The scholiast expounds at length the justice of this measure. He says that there have been authors, such as Hostiensis, who pretend that it lacks the equity of the ancient laws, which admitted Catholic children to inheritance. But he assures us that they are wrong in holding such views, that there is no injustice in the provision, and that it is salutary, since the fear of it is calculated to influence parents and to turn them — out of love for their offspring — from the great crime of heresy.
To minds less dulled by bigotry it must have been clear that by this, as, for that matter, by many other of their decrees, all that was achieved was to put a premium upon hypocrisy.
Another consideration that escaped their notice — being, as they were, capable of perceiving one thing only at a time — was that if this precious measure was prescribed by all laws, human and divine, it should have been unavoidable. Yet they themselves provided the means of avoiding it — as we know — for the child vile enough to lay information of his parents’ heresy. By what laws, human or divine, did they dare to encourage such an infamy? By no law but their own — a law whose chief aim, it is obvious at every turn, was to swell the number of convictions.
What opinion was held of children who informed against their parents to avert the awful fate that awaited them should their parents’ heresy be discovered by others, is apparent in the case of the daughter of Diego de Susan — who, very possibly, was actuated by just such motives.
Article XXIII
Should any heretic or apostate who has been reconciled within the term of grace be relieved by their Highnesses from the punishment of confiscation of his property, it is to be understood that such relief applies only to that property which by their own sin was lost to them. It does not extend to property which the person reconciled shall have the right to inherit from another who shall have suffered confiscation. This to the end that a person so pardoned shall not be in better case than a pure Catholic heir.
Article XXIV
As the King and Queen in their clemency have ordained that the Christian slaves of heretics shall be freed, and even when the heretic is reconciled and immune from confiscation, this immunity shall not extend to his slaves; these shall be manumitted in any case, to the greater honour and glory of our Holy Faith.
Article XXV
Inquisitors and assessors and other officers of the Inquisition, such as fiscal advocates, constables, notaries, and ushers, must excuse themselves from receiving gifts from any who may have or may come to have affairs with the Inquisition, or from others on their behalf; and the Father Prior of Holy Cross orders them not to receive any such gifts under pain of excommunication, of being deprived of office under the Inquisition and compelled to make restitution and repay to twice the value of what they may have received.
Eymeric’s “Directorium” permitted the reception of gifts by inquisitors, provided that these gifts were not too considerable, but he enjoined inquisitors not to show too much avidity — not, it would seem, on account of the sin that lurks in avidity, but so as not to give scandal to the laity. (See “Directorium,” pars iii. .)
Article XXVI
Inquisitors shall endeavour to work harmoniously together; the honour of the office they hold demands this, and inconveniences might result from discords amongst them. Should any inquisitor be acting in the place of the diocesan ordinary, let him not on that account presume that he enjoys preeminence over his colleagues. If any difference should arise between inquisitors and they be unable themselves to adjust it, let them keep the matter secret until they can lay it before the Prior of Holy Cross, who, as their superior, will decide it as he considers best.
Article XXVII
Inquisitors shall endeavour to contrive that their officers treat one another well and dwell in harmony and honourably. Should any officer commit an excess, let them punish him charitably, and should they be unable to cause an officer to fulfil his duty, let them advise the Prior of Holy Cross thereof, and he will at once deprive such a one of his office and make such an appointment as may seem best for the service of Our Lord and their Highnesses.
Article XXVIII
Should any matter arise for which provision has not been made by this code, the inquisitors shall proceed as by law prescribed, it being left to them to dispose as their consciences show them to be best for the service of God and their Highnesses.
To thes
e tvirenty-eight articles Torquemada was to make further additions — in January of the following year, in October of 1488 and in May of 1498. We shall indicate to them, but for the moment it is sufficient to say that — saving some of those of 1498 — they are of secondary importance, being mainly in the nature of corollaries upon those we have dealt with, and chiefly concerned with the internal governance of the Inquisition rather than with its relations to the outside world.
CHAPTER XI. THE JURISPRUDENCE OF THE HOLY OFFICE — THE MODE OF PROCEDURE
No complete notion of the jurisprudence of the HolyOffice can be formed without taking a glance at this tribunal at work and observing the methods upon which it proceeded in its dealings with those who were arraigned before it.
Its scope has already been considered, and also the offences that came within its pitiless jurisdiction at the time of Torquemada’s appointment to the mighty office of Grand Inquisitor and President of the Suprema. It remains to be added that in his endeavours to cast an ever-wider net he sought to increase the jurisdiction of the Inquisition beyond matters immediately concerned with the Faith and to include certain offences whose connection with it was only constructive.
Whether he succeeded to the full extent of his aims we do not know. But we do know that he contrived that bigamy should become the concern of the Holy Office, contending that it was primarily an offence against the laws of God and a defilement of the Sacrament of Marriage. Adultery, which is no less an offence against that sacrament, and which is not punishable by civil law, he passed over; but he contrived that sodomy should be brought for the first time within inquisitorial jurisdiction and that those convicted of it should be burnt alive.
Collected Works of Rafael Sabatini Page 635
