To crown all this, the Suprema, in 1657, reached the audacity of arguing that the right of familiars to bear arms was imprescriptible and could not be abrogated by any prince, for it would impede the Inquisition in the free exercise of its functions, wherefore it denied that any competencia could be formed in such cases; the secular authorities had no jurisdiction and there could not even be a discussion about their claim to interfere.[997] Philip IV had the weakness to submit to these extravagant claims, in 1658, and to decide that the Suprema alone had cognizance in such matters. The case in which this occurred was that of Jaime Espejo, alcaide of the penitential prison of Valencia, arrested for carrying pistols and it has interest for us because in it the inquisitor, Don Antonio de Ayala Verganza, argues away all the royal decrees and pragmáticas as not meaning what they said and proves it by citing a vast number of cases in which, when carried up to the king, he overruled his own legislation, invariably deciding in favor of the Inquisition and against his own jurisdiction. He could sometimes be brought to issue wholesome general regulations, but, when it came to their execution, the ever-present dread of interfering with the service of God overwhelmed him.[998]

Yet Philip promptly reversed himself for, in a despairing effort to put an end to these interminable quarrels, he was induced to issue a royal letter, December 23, 1659, declaring that the cognizance of infractions of the laws respecting prohibited arms lay with the royal jurisdiction and that no competencias should be formed in these cases. When this letter was alleged by the royal court, in the case then pending of Joseph Navarro, a familiar arrested for carrying a pistol, the Inquisition in reply airily cast aside the pragmática of 1613, and its confirmation in 1633, by asserting that both before and after those laws it had always exercised jurisdiction over these cases, as was notorious to every one—which was all doubtless true. As for the recent letter of 1659, it had not been issued with the assent of the Suprema; being thus irregularly issued it should not be regarded as valid, until the king should be supplicated to modify it, and until this was done the accused should be surrendered to it or he could be released under bail to both jurisdictions.[999] The vacillating monarch probably yielded again; whether he did so or not mattered little to the Holy Office, which regarded his decrees so lightly. The miserable business of quarrelling over the multiplication of the laws went on and, in 1691, Carlos II found it necessary again to prohibit the carrying of pistols and armas cortas and to deprive offenders of their claims to jurisdiction, even if they were familiars or salaried officials of the Inquisition.[1000]

Several cases in the earlier years of Philip V seem to indicate that this matter was an exception to the general limitation of the privileges of the Holy Office and that there was a tendency to admit its claims.[1001] Their final extinction, however, was not far off. In 1748, Fernando VI prohibited all officials of tribunals, including the Inquisition, from carrying cut-and-thrust weapons any kind; exclusive jurisdiction in the enforcement of this was reserved for the secular courts and all claims to fuero were abolished. He confirmed and extended this by proclamations of 1749, 1751 and 1754, with penalties of six years in the mines for commoners and six years service in presidio for nobles. In another of 1757 he regretted the non-observance of these laws and ordered their irremissible enforcement without privilege of fuero. This legislation was supplemented by Carlos III, in 1761, who included in the prohibition all fire-arms of less than four palms length of barrel, although he conceded to gentlemen the use of holster pistols when on horseback but not when on mule-back.[1002] Yet the Inquisition continued to issue the old form of commissions granting unlimited license, until the magistrates of Seville and Alcalá la Real refused to recognize them when, in 1777, it admitted its altered position by a modification which granted the right to carry non-prohibited weapons, but only when on duty for the Holy Office, and contented itself with exhorting the secular authorities not to interfere with this.[1003]

In somewhat ludicrous contrast with the belligerent spirit, indicated by the earnest desire to carry arms, was the claim that all connected with the Inquisition were exempt from military service. In its relations with the State the Holy Office recognized no duties of citizenship; it only claimed privileges. That the salaried officials, regularly employed in the tribunals, should enjoy such exemptions was merely in accordance with old custom, for a law of Juan II, in 1432, specifically released from the obligation of service nearly all officials, including even physicians, surgeons and schoolmasters.[1004] That this should apply to the Inquisition seems to have been assumed as a matter of course in its early days but, in 1560, the corregidor of Córdova summoned the officials and familiars to appear in the musters; they all claimed exemption, when the inquisitor-general upheld the appeal of the officials but denied that of the familiars. Similar questions arose in Murcia in 1563 and 1575, in which a similar distinction was drawn.[1005] In Valencia, the familiars had probably been more successful, for an article in the Concordia of 1568 provides that they must serve their turns in guarding the coasts and that inquisitors shall not defend them in seeking exemptions under pretext of their office.[1006] The same question arose in Majorca and was settled by a law providing that familiars refusing to perform guard-duty on their appointed days could be compelled by the royal officials.[1007] Thus by common consent at this time salaried officials were exempted while the claims of familiars were rejected.

In the troubles of the seventeenth century, when the very existence of Spain was threatened, the question as to officials as well as familiars came up again and the Suprema sought to protect both classes. In 1636 and 1638, the corregidors of various cities refused to except the officials when making up the lists for conscription, but Philip IV decided that they were exempt.[1008] As the danger increased, in 1640, with the rebellions in Catalonia and Portugal, and the resources of the kingdom were strained to the utmost, all claims were disregarded. By a cédula of September 7, 1641, Philip declared this to be a religious war, as the rebels were allied with nations infected with heresy. Inquisitor general Sotomayor was required to summon all officials and familiars to organize and serve and was clothed with power to enforce it. No protest was made against this, for it was a financial rather than a military move; arrangements were made to commute service for cash and the Suprema was thus aided in meeting the royal demands for contributions.[1009]

This was only a temporary truce. Philip, in a letter of February 22, 1644, to Inquisitor-general Arce y Reynoso, reported that the attitude of the officials had excited much dissatisfaction in Galicia; he therefore ordered that no exemptions be admitted and no excuses be received. To this the Suprema responded with bitter complaints that in Saragossa the lot had fallen on a messenger of the tribunal and the widow of a notary, who were told that they must furnish substitutes, all of which was in violation of the privileges of the Inquisition, crippling it in its pious labors so essential to the faith and reducing it in popular esteem to a level with other institutions. Unstable as usual where the Holy Office was concerned, Philip abandoned his position and admitted that salaried officials were not liable to serve or to furnish substitutes, which the Suprema promptly conveyed to the tribunals, cautioning them not to employ excommunication in collisions with the royal officials until after obtaining its permission.[1010]

Even in this hour of supreme need the liability of familiars was contested. Philip endeavored to placate the Suprema by assigning them to garrison duty, but it remonstrated, asserting that the Inquisition could not perform its functions if wholly deprived of them, and the cause of religion was higher than any other. It therefore asked that no place should be left without one, in small towns there should be two and in larger places four. To this Philip assented, on condition that those exempted should contribute to those who served, but the Suprema demurred; every one could avoid service who could pay the assessment, so this would be giving the familiars no special privileges; there could be no question that favors shown to the Inquisition would contribute to success in the war, for experience had demonstrated that the more sovereigns had fostered it the more fortunate they had been. However just was the argument it was fruitless; Philip adhered to his decision, but when the corresponding decrees were issued, the Council of Castile remonstrated in its turn and the distracted monarch was involved in a fresh discussion between the two.[1011]

The Suprema carried its point that those exempted should not contribute to those conscripted and the arrangement remained in force. It was repeated in a carta acordada of January 14, 1668, and, when, in 1681, a question arose in Tembleque, the Suprema cautioned the Toledo tribunal not to issue more letters of exemption than the settlement permitted, in order to avoid competencias which only serve to render the Holy Office hateful and to imperil its other privileges.[1012] Carlos III seems to have been more liberal when, in 1767, he included, in an elaborate list of those exempt from military service, the ministers and dependents of the Inquisition who were relieved from billets under the decree of May 26, 1728, which, it will be remembered, granted the privilege to the number of familiars allowed under the old Concordias. Carlos IV was more exacting for, in 1800, when regulating the conscription in minute detail, he granted exemption only to the titular officials and took special care to exclude familiars and other dependents.[1013] This continued to the end. September 14, 1818, the Suprema communicated to the tribunals a decision of the king that, in order to secure exemption from conscription, it was not necessary to exhibit a royal commission, but one from the inquisitor-general or Suprema sufficed.[1014] Evidently the local tribunals were no longer allowed to issue certificates of exemption.

The right of officials and familiars to hold secular offices raised questions that caused no little debate. It was evidently of advantage to the Inquisition that those who were bound to it and enjoyed its exemptions should be in positions of influence where they could guard its privileges and promote their extension. On the other hand, for these very reasons, the people were jealous of office-holding by its ministers and dreaded to have their local authorities relieved of responsibility through their claim on the fuero or jurisdiction of the Inquisition. Had these local positions been elective, popular good sense could have averted the danger, but they were awarded by lot, the names of those deemed eligible being placed in a bolsa or bag—a process known as insaculacion—and drawn forth.[1015]

The earliest instance I have met of a refusal to include officials of the Inquisition among the eligibles occurs in 1503, when Ferdinand wrote to his Lieutenant-general of Majorca that he was astonished to learn that the names of Pere Prat, his son Pere Prat, Carman Litra and Gerónimo Serma had not been insacculated because they held office in the Inquisition; it should rather be a recommendation; they must not be thus dishonored and their names must at once be put in the bolsa.[1016] Doubtless Ferdinand’s watchfulness preserved this privilege for officials during his life, but subsequently popular feeling must have manifested itself by their exclusion, for, in 1523, Charles V forbade it in an edict and he followed this by a special pragmática, May 30, 1524, asserting their eligibility to public office in all his dominions and for all future time, under pain of the royal wrath and of two thousand florins, but he provided that they should not be entitled to the jurisdiction of the Inquisition for official malfeasance.[1017] Notwithstanding this, Philip II was obliged to issue special instructions on the subject to Sardinia in 1552 and to Navarre in 1558.[1018]

In this, as in so much else, the Catalans were especially intractable. Córtes of the three kingdoms of Aragon were held in 1553, in which Catalonia alone took up the matter and adopted a law, confirmed by Prince Philip, prescribing that no bayle or his lieutenant, or judge, or scrivener could be a familiar, nor could he accept office after his term of service had expired.[1019] This received scant obedience, nor did the Inquisition pay attention to the clause in the pragmática of 1524 depriving it of cognizance of official malfeasance. One of the complaints of the royal Audiencia to de Soto Salazar, in his visitation of the Barcelona tribunal in 1566, was that it assumed jurisdiction in all such cases. Salazar recommended that this should be forbidden, for it impeded the proper administration of the towns, and officials could not be punished for violating local ordinances about bread, vineyards, meadows, breaking irrigating canals to water their lands, and multitudinous other derelictions.[1020]

Catalonia refused to accept the Concordia of 1568 and, in 1585, the Córtes re-enacted the provisions of 1553 in an enlarged form, including almost all offices, and subjecting violation to a penalty of two hundred ducats, which was confirmed by Philip II.[1021] This seems to have been enforced for, in 1586, a memorial from the Bishop of Segovia says that in Catalonia the names of all officials of the Inquisition were removed from the lists of eligibles, that commissioners and familiars were resigning and that every day withdrawals were received from applicants, so that the tribunal would be crippled and the Córtes could have contrived nothing more damaging.[1022] The Catalans held good, despite the earnest efforts of the Holy Office, which declared long afterwards that this was the severest blow that it had ever received. In the Córtes of 1599 the battle was renewed after elaborate preparations by the inquisitors. On June 30th the king presented a series of articles, in response to those submitted to him by the Córtes, and among them was one declaring officials and familiars eligible to all offices, but the Catalans would have none of it. In the elaborate memorial presented to Clement VIII by the Suprema against the work of the Córtes, it complained bitterly of the laws of 1553 and 1585 as diminishing notably the authority of the Inquisition and causing great lack of officials, so many having ignominiously resigned, while others could not be found to replace them.[1023]

Again, when the Córtes were about to assemble in 1626, the Barcelona tribunal implored the Suprema to use its utmost exertions for the repeal of the law of 1585, for no person of consideration would accept office and it was obliged to appoint those of low condition, which was fatal to its authority. The Córtes yielded in so far as to adopt an article throwing open the offices, provided incumbents were justiciable by the civil courts for a long series of offences, but the whole legislation of the Córtes came to naught through lack of the royal confirmation.[1024] When the question was coming up again in the Córtes of 1632, earnest appeals were made to the Suprema to have the obnoxious law of 1585 repealed. The condition of the Inquisition in Catalonia was represented as most deplorable by reason of it. In a memorial to the king it was stated that in Barcelona there were but four or five familiars, and they were mechanics, ineligible to public office; there was not a single advocate of the accused, nor an ecclesiastical consultor, so greedy was every one for public office. Throughout the principality there was the same dearth—familiars only in miserable villages, destitute of tempting positions, and those were of base condition, for in fact the barons would endure none other in their lands. The Suprema was urged to bring the matter before the Rota and it submitted the question to its fiscal, but he wisely reported that, although a favorable result was to be anticipated, yet it was expedient to set the example of recourse to Rome which might result in other matters being carried thither with damage to the jurisdiction of the Holy Office.[1025]

Thus Catalan pertinacity triumphed. When, in 1667, Pedro Momparler, familiar at Alconer, asked permission to resign, in order to accept the office of bayle, and his request was referred to the Suprema, it replied that it should be denied on account of the evil influence of his example, but it added that if he should renounce his familiarship before the royal justice for the term of his office, the inquisitors should pretend ignorance.[1026]

In Majorca, frequent alterations of the law show that it was subject to active debate and that preponderance shifted from one side to the other. In 1637 it was decided that none of those connected with the Inquisition could hold public office; then, in 1643, they were allowed to do so, in positions where they had not to vote or to give counsel; again, in 1660, the prohibition was made absolute; then, in 1662, royal letters of January 11th and March 4th removed the prohibition, provided they would previously renounce all claim to the jurisdiction of the Inquisition. These letters afford a remarkable illustration of the vacillation of the monarch and of the extent to which bureaucracy had crippled his autocracy—only this time it was the Council of Aragon which imitated the methods of the Suprema. The latter body was dissatisfied with the arrangement and addressed to the king a consulta, April 5, 1663, asking its suspension and that a junta of the two councils should be called to consider the subject. Philip promptly acceded and, on April 10th, ordered the Council of Aragon to write to that effect to the viceroy. The command was not obeyed and, on September 19th, the Suprema asked him to remedy the omission, whereupon he asked the council to state its reasons and, on its doing so, he again ordered it, October 3d, to execute his decree of April 10th. It was still recalcitrant and, on March 19, 1664, the Suprema represented the delay to the king who the next day called upon the council to render an exact account of what it had done, replied that in conformity with his commands it had written on October 3, 1663, copy of which it enclosed. This proved to be merely copies of the letters of 1662 which had given rise to the debate, showing that it had deliberately nullified his orders. In view of all this the Suprema, July 24, 1664, asked the king to insist on literal compliance and that a copy of the despatch of the Council of Aragon to the viceroy should be furnished to it. This proved to be merely a duplicate of that of October 13, 1663, with the date altered to April 6, 1664. Then the Suprema again asked the king peremptorily to order exact obedience and he replied that he had done so. Meanwhile the Viceroy and the inquisitor of Majorca had been playing at cross-purposes in consequence of the contradictory despatches received by each.[1027] Such a method of carrying on an organized government seems incredible and, trivial as was the question at issue, a case such as this throws light on one of the causes of Spanish decadence. The question itself, after all this trouble, apparently remained unsettled, for, in 1673, there was a competencia over Gabriel Berga, a knight of Santiago and a familiar, when the tribunal contended that he could not renounce its jurisdiction.[1028]

It would be superfluous to follow out in detail the vicissitudes of this matter in the other provinces of Spain, where it gave abundant occasion for quarrels conducted with customary vehemence. It seems to have settled itself into the rule that officials and familiars were eligible to public office but that, during their terms of service, they were not entitled to the jurisdiction of the Inquisition. Such, we are told in 1632, was the practice in Castile, Aragon and Valencia.[1029] Yet still there were disputes for, about the middle of the seventeenth century, a formula is given for use when a familiar is prevented from taking office. This sets forth at much length that, if familiars are refused office, no one will take the position, which will inflict great detriment on the faith; it cites the royal cédulas, it sets aside opposing arguments by showing that for all malfeasance in office the familiar will be subject to the royal jurisdiction and finally it orders his immediate induction in his post under penalty of excommunication and of five hundred ducats; no further notice will be given and all further action will be published in the halls of the Inquisition, which will be full legal notice to all parties concerned.[1030] I have met with no further legislation on the subject and presumably some arrangement of this kind was in force to the end.

There is no allusion to this in the earlier Concordias and no specific grant that I have been able to find. It seems to have been merely a gratuitous assumption on the part of the Inquisition, asserted with its customary persistence. A noteworthy case growing out of it occurred, in 1622, in the town of Lorca (Murcia) where a familiar refused to serve in the office of collector of the alcavala, or tax on sales, and was imprisoned for contumacy. The inquisitors of Murcia demanded his liberation and excommunicated the alcalde mayor for refusing to obey. This failing, they prepared to arrest him and called upon the corregidor of Murcia, Pedro de Porres, for assistance. On his refusal they excommunicated him and then laid an interdict on the city of Murcia. The citizens appealed to their bishop, Fray Antonio Trejo, who remonstrated with the tribunal and, finding this unavailing, issued an edict declaring the interdict invalid. Bishops were not subject to inquisitorial jurisdiction, even for heresy, without special papal faculties, but the inquisitor-general, Andres Pacheco, was the most audacious and inexorable assertor of inquisitorial omnipotence and he did not hesitate to condemn the episcopal edict, to publish the condemnation in all the churches, to fine the bishop in eight thousand ducats and to summon him, under pain of four thousand more, to appear within twenty days and answer to the action brought against him by the fiscal as an impeder of the Inquisition. The bishop and chapter sent the dean and a canon to represent them, but, without a hearing, they were thrown incomunicado into the secret prison, excommunicated and the censure published in all the churches. The inquisitors imprisoned the parish priest of Santa Catalina for disregarding the interdict and the whole ecclesiastical body of Murcia became involved. Finally, through the intervention of the king and the pope, the bishop was absolved, but the Inquisition reaped a rich harvest of fines. Those of the bishop, dean and some of the canons were kept by the Suprema, while the local tribunal, in addition to inflicting terms of exile, of from one to eight years, secured from José Lucas, the episcopal secretary, a thousand ducats, from Alonso Pedriñan, the fiscal, eight hundred and, from thirteen other priests and dignitaries of the church, sums ranging from fifty to one hundred and fifty—in all, an aggregate of 3272 ducats.[1031]

A claim enforced so relentlessly was dangerous to dispute and even the Aragonese Concordia of 1646, which registered a triumph over the Holy Office, admitted the right of salaried officials and familiars to decline onerous offices.[1032] In time, however, there seems to have come a slight modification of the claim. About 1750 we have the formula of a mandate, issued at the instance of a familiar, forbidding, under pain of excommunication and of two hundred ducats, the authorities of a town from including him among those liable to serve in any of the minor offices, nor in any of the more important ones until every other inhabitant has served his turn.[1033]

It is not difficult to understand the origin of the claim that the buildings of the Inquisition and the houses of its officials were sanctuaries into which the officers of justice could not penetrate without special permission. The asylum afforded to criminals in churches was an old established practice throughout Europe to which Spain was no exception. Even as late as 1737 the papal sanction was deemed necessary to except from this certain crimes, such as murder, highway robbery and high treason.[1034] Asylum was also afforded by the feudal rights which debarred royal officers of justice from intruding on lands of nobles, and the withdrawal of this right in Granada is cited as one of the causes of the agitation leading to the rebellion of 1568.[1035] In Aragon this was developed so far that a law of Jaime I, in the Córtes of Huesca in 1247, which still continued in force, gave to the houses of infanzones, or gentlemen, the same right of asylum as that possessed by churches.[1036]

It is therefore somewhat remarkable that the claim of affording asylum was not made at the outset by the Inquisition, especially in view of the importance attached to the secrecy which shrouded all its operations. Yet, until the middle of the sixteenth century, such claims when made were authoritatively repudiated. Inquisitor-general Tavera writes, September 3, 1540, a sharp letter to the inquisitors of Seville saying that he is informed that recently certain murderers had been received and protected in the castle of Triana, occupied by the tribunal, and that the officers of the royal justice had not been allowed to search for them; the punishment of delinquents should be in no way impeded and no occasion be given for complaint; the gates of the castle must be kept shut so that criminals cannot take refuge there.[1037] So, in 1546, among instructions from the Suprema to the tribunal of Granada, is an order that no criminals or debtors shall find refuge in the Inquisition, nor be allowed to sleep there nor between the gates; the janitor must eject them and, if they will not go, report it to the inquisitors for proper action.[1038] This shows that the abuse was commencing but that it was disapproved and the same is seen in the Valencia Concordia of 1554, which says that, as the Inquisition has no privileges as an asylum, it cannot protect those who take refuge there.[1039]

Evidently the local tribunals were claiming a right which the central authority disallowed; they were moreover claiming it not only for the building of the Inquisition but for the houses of officials and familiars. Among the malfeasances of the Barcelona tribunal, reported in 1567 by de Soto Salazar, were cases of this kind. When the bayle of Perpignan sought to arrest some culprits they were sheltered by Pedro de Roca, a familiar, in his house and he resisted the bayle who came with a posse to arrest them; Roca accused the bayle and his men for this; they were imprisoned for a long while by the Barcelona inquisitors and were condemned to fines and exile. So when the bayle of Sens, with a posse, broke into the house of Vicente Valele, who was merely a temporary commissioner, to arrest some culprits who had taken refuge there, he accused them and they were all imprisoned.[1040]

The rapidity with which the abuse developed in Valencia is manifested by a comparison of the Concordias of 1554 and 1568. The former, as we have seen, admits that the Inquisition could offer no asylum, while the latter is obliged to forbid the lower officials and familiars from putting the arms of the Inquisition on their houses; all such must be removed and their houses shall not have immunity from the officers of justice—evidently the officials found profit in harboring thieves and murderers and the tribunal supported them.[1041] In Barcelona a sort of compromise was reached by which, on application to the tribunal, one of its ministers was sent with the officers of justice to enter houses of officials where criminals had taken refuge, but the Córtes of 1599 complained that this delay afforded time for escape and, in the abortive Concordia enacted there, a clause provided that this should not be necessary and that, in case of resistance, houses could be entered. It shows how slow was the Suprema to assert a right of asylum that, in its protest to Clement VIII, it accepts this article on the ground that the Inquisition never has impeded the pursuit and arrest of malefactors.[1042] In time, however, it overcame these scruples and, in 1632, it issued repeated orders that the officers of justice should not be allowed to enter the houses of officials. Philip IV countermanded this, but the Suprema presented a consulta saying that there was no objection when the pursuit was flagrante delicto; prisoners, however, were frequently confined in the houses of officials and an unlimited right of entry might be abused to obtain communication with them in violation of the all-important secrecy of the Holy Office. As usual, the vacillating monarch yielded and, in 1634, issued a decree restricting the right of search to cases of hot pursuit.[1043]

It is remarkable that the Aragonese Concordia of 1646, imposed by the Córtes on Philip, which in so many ways restricted the privileges of the Inquisition, recognized this doubtful one in the fullest manner. As the ministers, it says, of so holy an office should enjoy certain honors and pre-eminence, it orders that they, including familiars, shall have as to their houses the same privileges as caballeros and hijosdalgo—which, as we have seen, included the right of asylum.[1044] As regards the buildings of the Inquisition itself, a scandalous case occurring in 1638 shows how far it had travelled since Tavera rebuked the tribunal of Seville. In Majorca the Count of Ayamano, at the head of a band of assassins, committed the sacrilege of escalading the walls of a convent for the purpose of murdering his wife who had sought refuge there. Philip ordered every effort made to arrest him and his accomplices, but he escaped to Barcelona with eight of them and all found asylum in the Inquisition, in the apartments of his uncle, the Inquisitor Cotoner. It affords a curious insight into the conditions of the period to see that this created a situation impenetrable to the highest authorities of the land. Philip called a junta of two members each of the Suprema and Council of Aragon to devise how the criminals could be captured without scandal or quarrel with the Inquisition. The result of their deliberations seems to be a letter from the Suprema to Cotoner telling him that, if he wanted to help his nephew, it should be outside and not inside of the Inquisition, in order to avoid the troubles ensuing on an attempt of the royal officers to remove him. The imperturbable Cotoner was not to be scared by this gentle warning and a fortnight later the Suprema enclosed to him a royal decree telling him that he would see the untoward results of sheltering his nephew. As complete satisfaction was demanded he was ordered to report in full all details, including his motives in harboring one who was put to the ban, especially when the latter was not a familiar.[1045] Unfortunately we do not know how the affair ended, but when the Suprema, in place of dismissing Cotoner, inquired as to his motives, we may assume that the asylum offered by the Inquisition saved the forfeit life of the criminal by some compromise.

The immunity of the houses of officials became generally recognized, with the proviso that permission of search would be granted by inquisitors if special application was made to them, when they preserved their jurisdiction by sending one of their people to accompany the officers of justice. An exception which proved the rule however was made in favor of the administrators of the tax on tobacco, to whom general letters were given empowering them to search the houses of officials for contraband tobacco. Even this was argued away by the Suprema in 1728, when it asserted that semi-proof in advance was necessary to justify search and full proof to give jurisdiction.[1046]

It is evident from the above that the Holy Office, with its claims for special privileges and exemptions and its methods for enforcing their recognition, was a very disturbing factor in the body politic. Yet the greatest source of conflict lay in the exclusive jurisdiction which it sought to establish over all who were connected with it, not only between themselves but between them and the rest of the community. This engrossed so large a portion of its activity and was the cause of such perpetually recurring trouble that its consideration requires a chapter to itself.

CHAPTER IV.

CONFLICTING JURISDICTIONS.

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.