A History of the Inquisition of Spain; vol. 1

THE principal source of strife between the Inquisition and the other authorities arose from its claim to exclusive competence in all cases involving those connected with it and their dependents. This gave rise to perpetual conflicts, conducted with the utmost tenacity, which filled the land with confusion and, in many cases, rendered the administration of justice a mockery. For two centuries the monarchs vainly endeavored to keep the peace by repeated efforts to define the boundaries between the rival jurisdictions and the methods of settling their differences. The tireless efforts, on the one side, of the Holy Office to extend its authority and increase its emoluments caused it constantly to violate compacts, while the jealousy of the civil magistracy on the other and its natural desire to repel intrusion rendered it prompt to use whatever means lay in its power. The struggle was unequal against the superior weapons furnished by papal faculties and against the royal favor which was with the Inquisition, but the conflict was maintained with marvellous constancy, supported by popular sympathy, and the time of the king and his advisers was frittered away in deciding a continuous stream of petty quarrels, growing out of trivial incidents, but assuming portentous proportions through the violent methods which had aggravated them.

To understand the claim of the Inquisition to exclusive cognizance of the cases of its subordinates it is necessary to bear in mind the benefit of clergy, through which, from the early middle ages, all clerics were exempted from the jurisdiction of the laity and were subjected wholly to the spiritual courts. This amounted virtually to immunity for crime, both because those courts were debarred from rendering judgements of blood and because of the inevitable favoritism manifested to those of their own cloth.[1047] As civilization advanced the disorders caused by a class, thus emboldened in wrong-doing by impunity, were the source of constant solicitude to rulers and were deplored by right-thinking churchmen. In this, Spain was no exception. In a project of instructions drawn up by a Spanish bishop for the delegates to the Lateran Council in 1512, the crimes and scandals perpetrated by married clerks and those in the lower orders, through expectation of immunity, are dwelt upon as reasons for a change; there were daily conflicts between the spiritual and secular courts, leading to interdicts cast on cities and some universal legislation by the Church was desirable.[1048] No such remedy was adopted, and when the Council of Trent gave promise of reform, the Spanish prelates, in contrast with the Inquisition, which made every effort to extend its jurisdiction over offenders, proposed in 1562 to the council that married clerks wearing secular habits should not enjoy protection from secular justice.[1049] In 1544, Fernando de Aragon, when Viceroy of Valencia, declared that his

principal trouble lay with the Church, of which the chief object was to protect evil-doers and liberate them from his justice, an opinion in which he was heartily seconded by the saintly Tomás de Vilanova, then recently appointed archbishop.[1050]

Yet the marked aversion in Spain to ecclesiastical encroachment led to repeated enactments restraining spiritual jurisdiction within strict limits. In a series of laws, dating from the fourteenth to the sixteenth century, Henry II, Juan II, Henry IV, Ferdinand and Isabella and Charles V endeavored by the severest penalties to repress its inevitable tendency to extend itself, whether by seizure of the persons or property of the laity or by entertaining cases between laymen. Ferdinand and Isabella, in 1493, even threatened half confiscation and perpetual exile from Spain for all who, under any pretext, aided ecclesiastical judges in taking prisoners from secular officials or who assisted them in any way.[1051] In addition to this was the recurso de fuerza through which appeal lay to the royal courts or to the Sala de Gobierno whenever the spiritual courts refused an appeal or heard secular cases or those in which laymen were concerned.[1052] It is necessary to bear in mind this tendency and these restrictions on ecclesiastical jurisdiction to estimate properly the latitude obtained by the Inquisition in purely secular affairs.

Whether, at its inception, the Inquisition enjoyed the prerogative of exclusive cognizance of cases involving its officials it would be impossible now to say. They were mostly laymen and as such were subject to the secular courts, while, in the popular opposition elicited by their proceedings, especially in the Aragonese kingdoms, there might be anticipated danger that they would be terrorized or prosecuted unless protected by being reserved for judgement by their own tribunals. The earliest mandate to this effect that I have met is a cédula of Ferdinand, March 26, 1488, addressed to all the officers of justice in Catalonia ordering them, under penalty of two thousand florins and the royal wrath, to take no cognizance of anything concerning the ministers and familiars of the Inquisition; all their acts in such cases are declared invalid, and any one whom they may have arrested is at once to be transferred to the tribunal, showing that, at least in Catalonia, no such exemption from secular justice had previously been recognized.[1053]

Yet in this unlimited decree Ferdinand had overlooked details which necessarily presented themselves in practice. Was this exemption from secular jurisdiction confined to the titulados y asalariados or did it extend to the unsalaried commissioners and familiars, receiving no pay, pursuing their customary avocations and only called upon for occasional service? There was also a question about the servants of officials, for an abuse of the spiritual courts had included those of clerics. Then it might be asked whether the protection accorded to the person of the official extended to his property in civil suits, with the wide avenue thus opened to abuses of many kinds. There was, moreover, a well-settled principle of law that the accuser or plaintiff must seek the court of the defendant; if, in violation of this, the official could enjoy what was known as the active fuero as well as the passive—that is, if he as plaintiff could bring suit or prosecution before his own tribunal—his power of offence would be vastly increased, together with his opportunities for tyrannizing over all around him.

These were questions which had to be decided. It would seem that the inquisitors construed their powers in the most liberal fashion, giving rise to abuses which called for repression and a limitation of their jurisdiction. The reformatory Instructions of 1498, accordingly, order them not to defend officials and their servants in civil cases and only officials in criminal actions, a rule repeated in a carta acordada of May 4th of the same year.[1054] This excluded servants wholly and deprived officials of the fuero in civil matters, but it was soon modified by Ferdinand, in a letter of January 12, 1500, to the Catalonia tribunal, ordering it not to interfere with the royal court in a certain suit, and expressing the rule that the plaintiff must seek the court of the defendant.[1055] It was impossible however to restrain inquisitors from exceeding their jurisdiction and he was obliged, August 20 1502, to repeat his injunctions to the same tribunal, in consequence of complaints from the Diputados. The inquisitors were roundly taken to task for lending themselves to the schemes of the receiver in buying up debts and claims and then collecting them through the tribunal; they were told that they must defend none but salaried officials actually in service; if they are plaintiffs in civil suits they must apply to the court of the defendants, while if they are defendants the plaintiffs must seek the tribunal. To evoke other cases, he says, causes great scandal and will lead to troubles which must be prevented.

A fortnight later he emphasized this about a civil case which they had evoked from the royal court; they must remit it back and not have to be written to again as he would not tolerate such proceedings.[1056] Thus familiars and servants were not entitled to the fuero, or inquisitorial jurisdiction, while salaried officials enjoyed it, active and passive, in criminal actions and only passive in civil suits.

Unduly favorable as was this to the Inquisition, the tribunals paid no attention to its limitations; they welcomed all who sought their judgement seat, and the desire for it of those who had no claim on it shows that they had a reputation of selling justice. One or two cases will exemplify this and show how good were the grounds of complaint by the people. There was a certain Juan de Sant Feliu of Murviedro, whose father and mother-in-law had been condemned for heresy, and to whom Ferdinand had kindly granted their confiscations, including the dowry of his wife. In 1505 the town of Murviedro farmed out to him and his wife the impost on meat for 11,100 sueldos a year; he died and, in the settlement of his account, he was found to owe the town a hundred and fifty libras, which it proceeded to collect from his sons in the court of the governor. Under pretext that his property had been confiscated and restored, they appealed in 1511 to the tribunal of Valencia, which promptly evoked the case and inhibited the court from further action, whereupon the town complained to Ferdinand who ordered the case remitted to the governor. Unabashed by this, in 1513, Sant Feliu’s heirs on the same pretext obtained the intervention of the tribunal in another case, in which Doña Violante de Borja had sued them for 7500 sueldos which she had entrusted to him to invest in a censo of the town of Murviedro; the censo had been paid off and he had concealed the fact and kept the money.

Judgement was given against them, when the inquisitors interposed and prohibited the royal court from further action. Ferdinand expressed much indignation at their interference with justice in a matter wholly foreign to their jurisdiction and ordered the prohibition to be withdrawn. Even more arbitrary was the action, in 1511, of the Majorca tribunal, when Pedro Tornamirandez sued the heirs of Francisco Ballester for some cattle and obtained judgement in the court of the royal lieutenant, whereupon the heirs appealed to the inquisitor who evoked the case and forbade further proceedings in the secular court. None of the parties had any connection with the Inquisition and there was not even the pretext of confiscation; it was a mere wanton interference with the course of justice, only explicable by some illicit gain, and when Ferdinand’s attention was called to it he ordered the inquisitor to revoke his action.[1057] If, under Ferdinand’s incessant vigilance the Inquisition thus boldly prostituted its powers, we can appreciate how well-founded, under his careless successors, were the complaints of those who suffered under wrongs perpetrated under the pretence of serving God.

In the Catalan Concordia of 1512 there was an attempt to do away with some of these abuses and the bull Pastoralis officii of Leo X, confirming the Concordia, marks another stage in the development of the fuero. No one, he said, could be cited save in his own ordinary court at the instance of an official or familiar; if it were attempted, all acts concerning it were invalid and the inquisitors must condemn the plaintiff in double the expenses and damage; if any official bought property in suit, or on which a suit was expected, he could be cited before a court not his own and if he claimed property under seizure by a secular judge, the latter could disregard all inhibitions issued by inquisitors; moreover inquisitors should have no cognizance in matters concerning the private property of officials. While thus striking at some of the more flagrant abuses of the fuero, Leo opened the door to worse ones by admitting familiars and the commensals or servants of officials to participation in the immunities of the Inquisition.[1058] The bull, in fact, is in accordance with the Instructions of 1514, as issued by Inquisitor-general Mercader, and we shall see how completely the restrictive clauses were ignored while those admitting familiars and servants were developed.[1059]

The question as to familiars and servants was not absolutely settled for some years. It is true that, in 1515 at Logroño, when the corregidor arrested Martin de Viana, a servant of the secretary Lezana, and refused to surrender him to the tribunal, he and his deputy and alguazil were excommunicated and the Suprema on appeal subjected them all to fines and humiliating penance.[1060] On the other hand, in 1516 at Valladolid, when Alonso de Torres, servant of Inquisitor Frias, was thrown into the royal prison, the inquisitor did not reclaim him but procured the interposition of the Suprema, which ordered him to be released on bail and then, after nine months had passed without a charge being brought against him, he procured a royal cédula for the release of his bondsmen.[1061] Whatever doubts may have existed on the subject were removed, in 1518, by a cédula of Charles V, reciting that in Jaen the secular courts assumed cognizance of criminal cases concerning officials and familiars and their servants, which was contrary to the privileges of the Holy Office, wherefore he forbade it strictly for the future.[1062] After this the Inquisition had no hesitation in insisting on its rights.

When, in 1532, the corregidor and officials of Toledo were excommunicated for punishing the servant of an inquisitor and the Empress-regent Isabel wrote to the tribunal to absolve them, the Suprema instructed it not to obey her.[1063] She learned the lesson and, in 1535, when ordering some servants of inquisitors and familiars to be remitted to the Inquisition, she said it was accustomed to have their cases, both civil and criminal, and it was her pleasure that this should be observed.[1064]

The civil authorities were somewhat dilatory in recognizing the immunity of servants, and cases continued to occur in which the tribunals vindicated their jurisdiction energetically. About 1565 two officers of the royal justice in Barcelona arrested a servant of Inquisitor Mexia in a brothel where he was quarrelling with a woman, for which they were thrown into the secret prison as though they were heretics and were banished for three months, while the judge of the royal criminal court, who had something to do with the matter, was compelled to appear in the audience-chamber and undergo a reprimand in the presence of the assembled officials of the tribunal. The virtual immunity for offenders resulting from the privilege is illustrated by the case, in the same tribunal, of Pedro Juncar, servant of the receiver, who murdered the janitor of the Governor of Catalonia; the governor arrested him but was forced to surrender him to the tribunal, which discharged him with a sentence of exile for a year or two and costs.[1065] The influence on social order of conferring immunity on such a class can readily be conceived.

The privilege of the fuero was not confined to servants but was extended in whatever direction the ingenuity and perseverance of the tribunal could enforce it. Penitents who were fulfilling their terms of penance were claimed and the claim was confirmed, in 1547, by Prince Philip. In Valencia and Barcelona the workmen employed on the buildings of the Inquisition were given nominal appointments under which they claimed immunity. In Lima the tribunal complained to the viceroy of the arrest of a bricklayer who was working for it, but it got no satisfaction. In Barcelona the tribunal granted inhibition with censures on the civil court, in which the brother of a familiar was suing a merchant on a protested bill of exchange.[1066]

We have seen the limitations imposed by Ferdinand and the bull Pastoralis officii and the reiteration of the principle that the plaintiff must seek justice in the court of the defendant. As far as regards Castile, Charles V had overthrown this in criminal matters for both officials and familiars. Civil cases remained in a somewhat undetermined state, especially concerning familiars, the inquisitors endeavoring to grasp as far as they could both the active and passive fuero. When, in 1551, complaints came from Valencia that the tribunal was collecting debts for familiars, Inquisitor-general Valdés wrote that he did not know how this had come to pass and called for precise information as to when it had commenced and generally as to the method observed in the civil cases, active and passive, of familiars, so that he could answer Prince Philip.[1067] There was a good deal of uncertainty about the whole subject; the courts were restive and the situation was becoming strained. In the endeavor to settle it, Charles, in 1542, reissued his edict of 1518 with a sobre carta emphatically commanding its strict observance and forbidding the secular courts from any cognizance of the criminal cases of officials or familiars.[1068] This did not mend matters. The courts persisted in exercising jurisdiction over familiars, the recurso de fuerza was freely invoked and competencias multiplied. Both sides appealed to Charles, who was in Germany, and this time the opponents of the Inquisition gained the advantage.

Prince Philip, as regent, issued a cédula, May 15, 1545, in which he described how laymen, subject to the secular courts, obtained immunity for their crimes on pretext of being familiars; how the tribunals, in defending them, cast excommunications on the officers of justice, through which scandals and disquiet were daily increasing, and the course of justice was impeded. The familiars were in no way entitled to immunity from the secular courts, as they were not officials, although a different custom existed in Aragon and the inquisitors pretended to it in Castile, under the cédula of 1518 and the sobrecédula of 1542, but these were both irregular, not having been despatched by the Council and Secretariat of Castile as is customary and necessary. Therefore in order that delinquent familiars may not remain unpunished and be induced to commit crimes by the prospect of immunity, the emperor ordered the matter to be thoroughly discussed and meanwhile the cédulas of 1518 and 1542 to be suspended, in conformity with which they are declared to be suspended, inquisitors are ordered no longer to take cognizance of the cases of familiars and the secular courts are instructed to prosecute them in accordance with the laws.[1069]

The Inquisition did not acquiesce tamely in this defeat, which was aggravated by the secular courts interpreting it as giving them jurisdiction over officials as well as familiars. It protested and resisted and showed so little obedience that the Córtes of Valladolid, in 1548, asked that it should be compelled to confine itself to its proper functions in matters of faith.[1070] Quarrels and recursos de fuerza continued and finally the whole question was referred to a junta consisting of two members each from the Suprema and Council of Castile. The representatives of the Inquisition conceded that it had been in fault in appointing too many familiars and in claiming for them all the exemptions of salaried officials; those of the Council admitted that the courts had erred in interfering with civil and criminal cases properly appertaining to the Holy Office. Mutual concessions were made, resulting in what was known as the Concordia of Castile, March 10, 1553—an agreement which the Inquisition admitted, a century later, that neither side had observed.[1071]