THE INQUISITION OF SPAIN.

BOOK III.

JURISDICTION.

CHAPTER I.

HERESY.

It is not easy at the present day, for those accustomed to universal toleration, to realize the importance attached by statesmen in the past to unity of belief, or the popular abhorrence for any deviation from the standard of dogma. These convictions were part of the mental and moral fibre of the community and were the outcome of the assiduous teachings of the Church for centuries, until it was classed with the primal truths that it was the highest duty of the sovereign to crush out dissidence at whatever cost, and that hatred of the heretic was enjoined on every Christian by both divine and human law. The heretic was a venomous reptile, spreading contagion with his very breath and the safety of the land required his extermination as a source of pestilence.[1]

In the earlier periods of the Inquisition, moreover, when the hierarchy was filled with New Christians of doubtful orthodoxy, it was essential to know that the sacraments necessary to salvation were not vitiated by the apostasy of the ministrant, for his intention is indispensable to their validity. No man could tell how many priests there were like Andrés González, parish priest of San Martín de Talavera, who, on his trial at Toledo, in 1486, confessed that for fourteen years he had secretly been a Jew, that he had no intention when he celebrated mass, nor had he granted absolution to the penitents confessing to him. There was also a classical story, widely circulated, of Fray Garcia de Zapata, prior of the Geronimite monastery of Toledo, who, when elevating the Host, used to say “Get up, little Peter, and let the people look at you” and who always turned his back on the penitent to whom he pretended to grant absolution.[2]

The merciless zeal of the Holy Office might gradually relieve the people of this danger, but it intensified by its methods the unreasoning abhorrence of heresy. The honest cavalier Oviedo, about the middle of the sixteenth century, merely phrases the current opinion of the time when he says that all possible punishments prescribed by the canons and admitted by the laws should be visited on the persons and property of heretics; they eat the bread of the good, they render the land infamous, by their conversation they lead souls to perdition and, with their marriages and kinships, they corrupt the blood of good houses.[3] As time wore on this increased rather than diminished. Galceran Albanell, Archbishop of Granada, who had been tutor of Philip IV, wrote to his former pupil April 12, 1621, to express his horror at learning that the English ambassador had been allowed to have divine service performed in his house, after the rites of his sect. The king should not allow it; it is the greatest of sins and unless it is remedied we shall all perish. It is an accursed reason to allege that that accursed king permits the Spanish ambassador to have mass celebrated in London. The English ambassador should be dismissed and the English king can send away the Spanish ambassador; if the Council of State interferes, let Philip show them the way of God. The Licenciado de Angulo should have a bishopric because he resigned his office as fiscal of the Council rather than affix his name to a paper in which the English king was styled Defender of the Faith and Albanell declares his readiness to resign his own see in Angulo’s favor.[4] To a population sedulously trained in such sentiments the awful ceremonies of the auto de fe were a triumph of the faith, of which they felt proud, and they were filled with pious exultation when the flames of the brasero consumed the bodies of heretics who passed through temporal to eternal fire. It was a vindication of the honor of God, and it is necessary to understand and bear in mind this temper when considering the performance by the Inquisition of its allotted task.

The jurisdiction of the Holy Office over heresy was confined to the baptized, for baptism is a condition precedent to heresy; the unbaptized are outside of the Church and it has no spiritual authority over them. In the auto de fe of 1623, at Valladolid, a woman taken out to be relaxed for Judaism, declared that she was not baptized, whereupon the proceedings respecting her were stopped and she was remanded for investigation.[5] Although baptism can be validly administered by a heretic, yet in the trial of foreign Protestants, minute inquiry was made as to the details of their baptism in their sects, so as to be assured that they were truly baptized; in the case of Jacques Pinzon, at Toledo, in 1598, his advocate ingeniously but vainly argued that this could not be assumed, because it could not be proved that the minister had the proper intention, without which the rite was invalid.[6]

Age placed slender limits on inquisitorial jurisdiction. Children were considered capable of committing heresy as soon as they were doli capaces, at six or seven years, but were not held responsible until they reached years of discretion. This was fixed by Torquemada at twelve for girls and fourteen for boys, below which they were not to be made to abjure in public,[7] but the limit was frequently infringed. In 1501, Inesita, daughter of Marcos Garcia, between nine and ten years old and Isabel, daughter of Alvaro Ortolano, aged ten, were sentenced to appear in an auto de fe. They had confessed to fasting once or twice and the latter had been told by her father not to eat pork.[8] In 1660, at Valladolid, Joseph Rodríguez, aged eight, accused of Judaism, was regularly tried, with all the complicated formalities of procedure, occupying a year, and was made to give evidence against his father and brother; he was absolved secretly and placed in the penitential prison for instruction.[9] Of course there was no maximum limit of age. In 1638, at Valladolid, María Díaz, a hundred years old, was thrown into the secret prison for Judaism and her trial went forward.[10]

Responsibility to the Inquisition varied with the grade of heresy, which was carefully classified by the theologians. Material heresy is error in a baptized person arising from ignorance and, if the ignorance is inculpable, it is scarce to be considered as true heresy deserving of punishment.[11] Formal or mixed heresy is voluntary and pertinacious error, pertinacity being adherence to what is known to be contrary to the teachings of the Church. This formal heresy is again distinguished into internal, or mental, and external. Internal, or mental, heresy is that which is secretly entertained and is not manifested by either word or act. External heresy is subdivided into occult and public. Occult external is that which is manifested by words or signs, either in secret or to one or two persons only—as though a man in the solitude of his chamber should say “There is no God,” or should utter his thought in the presence of another. Public external is that which is manifested openly, either in public or to more than two persons.[12] The bearing of these distinctions on the work of the Inquisition will be apparent hereafter.

There was still another definition of even greater importance. Heresy was both a sin and a crime. As a sin it was subject to the forum internum, or forum of conscience; as a crime, to the forum externum or judicial forum. A penitent in sacramental confession, admitting heretical belief, might receive sacramental absolution and be pardoned in the sight of God, but the crime, like that of murder or any other violation of human laws, would still remain to be punished in the judicial forum. We shall see that in the Inquisition the penitent, who confessed and repented and received absolution, was still subject to penalties ranging, according to circumstances, from slight penance to death.

Prior to the organization of the Inquisition in the thirteenth century, the cognizance of heresy was a natural attribute of the episcopal office. The duty of persecution was negligently performed and, when the Catharan and Waldensian heresies threatened the predominance of the Latin Church and the Albigensian Crusades left it master of the situation, the Inquisition gradually sprang up as an assistance to the bishops. There was some rivalry, but the bishops, as a rule, did not share in the confiscations and, as few of them had persecuting zeal sufficient to induce them to perform this gratuitous service, the field was virtually abandoned to the new organization, in the lands where it was introduced. Still the episcopal rights were undisputed. Jurisdiction over heresy was recognized to be cumulative—that is, it was enjoyed by both tribunals, either of which was entitled to any case in which it had taken prior action. Finally, in 1312, the Council of Vienne, in response to complaints of the cruelty of inquisitors, formulated a settlement under which the combined action of both jurisdictions was required in all commitments to harsh detentive prison, in all sentences to torture and in all final sentences, unless the one called upon to coöperate failed to come within eight days.[13] This, embodied in the acts of the council, technically known as the Clementines, remained the law of the Church. The bishops, however, remained indifferent and rarely took independent action. The inquisitorial districts were large, comprehending a number of dioceses; the episcopal jurisdiction was limited to the subjects of a single diocese. It was impossible for the bishops to assemble at the seat of the tribunal, and when an auto de fe was in preparation they would usually delegate their Ordinaries to represent them or commission an inquisitor to act.

Such was the somewhat cumbrous combination of episcopal and inquisitorial jurisdiction which the founding of the Holy Office brought into Spain. Independent action by bishops still continued occasionally, of which we have seen example (Vol. I, p. 167) and it was recognized, though subordinated to the inquisitorial jurisdiction in a brief of Innocent VIII, September 25, 1487, conferring on Torquemada appellate power in cases before episcopal courts, whether they were acting separately or in conjunction with inquisitors, provided appeal was made before sentence was rendered.[14] The popes of the period, moreover, were careful to maintain the assertion of episcopal participation in inquisitorial proceedings, as is manifested in the superscription of their letters addressed “Ordinariis et Inquisitoribus,” or assuming that inquisitors acted under episcopal as well as papal authority.[15] Theoretically, this continued throughout the sixteenth century. The writers of highest authority treat bishops and inquisitors as possessing cumulative jurisdiction, so that both could prosecute, either separately or conjointly and the old canons were still cited threatening with deposition the bishop who was negligent in purifying his diocese of heresy.[16]

Thus there was no legislation depriving the episcopal order of its traditional jurisdiction over heresy, yet the Inquisition claimed, and made good the claim, that its cognizance was exclusive and that the Clementines merely gave to the bishops a consultative privilege in the three sentences specified. No such privative right was conferred in the papal commissions to the inquisitors-general and the only source of such right is to be looked for in Ferdinand’s masterful determination that nothing should interfere with the swift operation of his favorite institution, and no claim be admitted to a share in its pecuniary results. It was natural that he should favor the Inquisition, for procedure in the spiritual courts was public and was much less likely to result in conviction than the secrecy of the tribunals, and by 1500 he seems to have established the matter to his satisfaction for, in a letter of August 19th of that year to the Archbishop of Cagliari, he expresses surprise that the prelate, without his licence, or a commission from the inquisitor-general, should have meddled with matters belonging to the Inquisition and have collected certain pecuniary penances, although he had already been forbidden to do so. This prohibition is now emphatically repeated; he is to have nothing to do with the affairs of the Inquisition, except to aid the inquisitor when called upon, and he is at once to hand over his collections to the receiver, Pedro López, who is going to Sardinia.[17] Nothing can be more peremptory in tone than this missive, although the Sardinian tribunal was thoroughly disorganized and was about to be reconstructed by sending a full corps of officials. We may assume from this that if there had been any resistance on the part of the Castilian episcopate it had by this time been overcome.

That this concentration of exclusive jurisdiction in the Inquisition was the work of the royal power and was not universally admitted, even by the middle of the sixteenth century, is manifest from the remark of Bishop Simancas, himself an experienced inquisitor, when he says that it is the duty of bishops to enquire into cases of heresy, but they ought to send the prisoner and the testimony to the inquisitor, for otherwise their inexperience is apt to result in failure, as he had often found; there ought to be a papal decree prescribing this and, in default of it, the king is accustomed to order it of the bishops.[18] Of this we have an example, in 1527, when the vicar-general of the Archbishop of Toledo was required by Inquisitor-general Manrique to surrender a cleric whom he had arrested and was prosecuting.[19]

Simancas still recognizes the duty of the bishop to make preliminary inquiries into heresy, but even this had long before been forbidden, although there was a prolonged struggle before it was surrendered. In 1532 the Ordinary of Huesca issued an Edict of Faith, modelled on that of the Inquisition, calling for denunciation of heretics, for which the empress-regent sharply rebuked him, in a letter of March 23d, calling it an innovation unknown since the Inquisition had been introduced, and threatening him with fitting measures for the repetition of such intrusion on the jurisdiction of the Inquisition.[20] In spite of this, Archbishop Ayala of Valencia, in 1565, and his successor the Blessed Juan de Ribera, in 1576, and another bishop in 1567 repeated the indiscretion for which they were promptly called to account. When, in 1583, the Bishop of Tortosa committed the same offence, the Suprema wrote, January 14, 1584, that the popes had given the Inquisition exclusive jurisdiction over heresy and had prohibited its cognizance by others and that he must not in future intervene in such matters.[21] Undeterred by this, the Council of Tarragona, in 1591, reasserted the ancient episcopal jurisdiction by ordering all bishops to be vigilant in watching their flocks and, if they found any disseminators of heresy, to see to their condign punishment according to the canons.[22] How completely justified was the council in this and how false was the assertion of the Suprema, was manifested in 1595, when the Archbishop of Granada complained to Clement VIII that the inquisitors had forbidden him to issue an edict on the subject of heresy and the pope forthwith wrote to the inquisitor-general that this must not be allowed, for the faculties delegated to inquisitors in no way abridged episcopal jurisdiction.[23]

After this, at least, the Suprema could not plead ignorance and yet it persisted in the assertion that it knew to be false. A savage quarrel broke out in Guatimala between the bishop, Juan Ramírez, and the commissioner of the Inquisition, Phelipe Rúiz del Carral, who was also dean of the chapter. Ramírez imprisoned him and undertook to organize a sort of inquisitorial tribunal of his own, whereupon, in 1609, the Suprema presented to Philip III for signature a letter which it describes as drawn in the form customary for cases where bishops interfere in matters concerning the faith. This describes how the pope, in instituting the Inquisition, evoked to himself all cases connected with heresy and committed them to the inquisitor-general and his deputies, inhibiting all judges and Ordinaries from intervening in them, in consequence of which they have ceased to take cognizance of such matters and have referred to the inquisitors whatever came to their knowledge. As the bishop has laid his hand on things beyond his jurisdiction, he is ordered in future not to meddle with anything touching the Inquisition, as otherwise fitting measures will be taken.[24] The only foundation for this mendacious assertion was, as we shall see hereafter, that, in the struggle made by Ferdinand and Charles V to prevent appeals to Rome from the Inquisition, briefs were sometimes obtained from popes evoking to themselves all cases pending in the tribunals and committing them to the inquisitor-general, with inhibition to any one, including cardinals and officials of the curia, to entertain appeals from him. In this there is absolutely nothing that relates to original jurisdiction and nothing to limit the traditional functions of the episcopate, but the Suprema held the records and could assert what it pleased concerning them.

Still the bishops did not wholly abandon their rights and cases continued occasionally to occur, in which of course they were worsted. They were frequent enough to justify, in a Formulary of 1645, the insertion of a formula framed to meet them. It is addressed to the provisor of Badajoz and recites that the fiscal complains of him as having commenced proceedings against a certain party for heretical propositions; as this is a matter pertaining exclusively to the Inquisition, he is commanded to surrender it under the customary penalties of excommunication and fine. The fiscal also demands that the provisor be prosecuted so that in future neither he nor any one else shall dare to usurp the jurisdiction of the Inquisition and the document ends with a statement that the prosecution has been commenced.[25] Such methods were not easily resisted. When, in 1666, the Barcelona tribunal learned that the Bishop of Solsona, on a visitation, had taken considerable testimony against some parties in a matter of faith, it at once claimed the papers, which he promptly surrendered. It had the audacity to propose to prosecute him, but the Suprema wisely ordered it to take no action against him.[26] Yet Benedict XIV repeated the assertion of Clement VIII that the popes, in delegating powers to inquisitors, had never intended to interfere with episcopal jurisdiction or to relieve bishops from responsibility.[27]

Not content with thus depriving the episcopate of its immemorial jurisdiction over heresy, inquisitors sought to obtain cognizance of a class of cases clearly belonging to the spiritual courts, on the ground of inferential heresy—bigamy, disregard of church observances, infractions of discipline and the like. In 1536 the tribunal of Valencia created much excitement by including in its Edict of Faith a number of matters of the kind but, on complaint from the vicar-general, the Suprema ordered the omission of everything not in the old edicts.[28] The attempts continued and, in 1552, a decision was required from the Suprema that eating pork on Saturdays was not a case for the Inquisition,[29] and the Concordia of 1568 contains a clause prohibiting inquisitors from entertaining cases belonging to the Ordinaries.

In a carta acordada of November 23, 1612, the Suprema made an attempt to define the boundaries of the rival jurisdictions, in which it allowed to the spiritual courts exclusive jurisdiction only over ecclesiastics in matters touching their duties as pastors, the ministry of the Church, simony and cases relating to Orders, benefices and spiritual affairs, while it admitted cumulative jurisdiction in usury, gambling and incontinence.[30] Restricted as were these admissions, the Suprema itself did not observe them. In 1637, Sebastian de los Rios, cura of Tombrio de Arriba, who met with one or two accidents in handling the sacrament and feared accusation, by his enemies, of irreverence, denounced himself to the provisor of Astorga and was fined in four thousand maravedís. In spite of this he was prosecuted, in 1640, by the tribunal of Valladolid; he vainly pleaded his previous trial; the Suprema assumed its invalidity in ordering his incarceration in the secret prison, where he died.[31] This process of encroachment continued and towards the end, when there was little real heresy to occupy its energies, its records are full of cases which, even under its own definitions, belonged unquestionably to the spiritual courts—inobservance of ecclesiastical precepts of all kinds, irregularities in the celebration of mass, taking communion after eating, eating flesh on fast days, working and inattendance at mass on feast days and other miscellaneous business, wholly foreign to its original functions.[32] It does not argue favorably for the Spanish episcopate that they seem to have welcomed this relief from their duties and strenuously resisted the abolition of the Inquisition in 1813, which restored to them, under limitations, their original functions. After the Restoration, the Archbishop of Seville, in 1818, gathered evidence to show that the cura of San Marcos had not confessed for many years and then, in place of punishing him, handed the papers over to the tribunal. This was probably fortunate for the peccant priest, as the Suprema ordered that nothing should be done except to keep him under surveillance and that the archbishop should be warmly thanked and assured that the necessary steps had been taken.[33]

There was one formality preserved which recognized the episcopal jurisdiction over heresy. We have seen that, in the Clementines, the concurrence of both bishop and inquisitor was requisite in ordering severe detentive incarceration, in sentencing to torture and in the final sentence. No allusion was made to this in the bull of Sixtus IV authorizing the appointment of inquisitors for Castile. No allusion, in fact, was necessary, as it had been for nearly two centuries a matter of course in inquisitorial procedure, but the earliest inquisitors took no count of it and Sixtus, in his brief of February 11, 1482, called forth by complaints of their cruelty, insisted on the concurrence of episcopal officials in all judgements.[34] Ferdinand was indisposed to anything that threatened interference with the autonomy of the Inquisition and his experience in Valencia with the representatives of Rodrigo Borgia, the absent archbishop, showed him how this episcopal right could be exercised to obstruct proceedings and compel division of the spoils. He doubtless represented to Sixtus that there were many of Jewish blood among the bishops and their officials, whom it would not be safe to trust, for Sixtus, with Borgia behind him, met such objection with a brief of May 25, 1483, addressed to all the Spanish archbishops. In this he ordered them to warn any of their suffragans of Jewish extraction not to meddle with the business of the Inquisition but to appoint an Old Christian, approved by the archbishop, who should have exclusive powers over all such matters. In case this was not done the archbishop was to make the appointment for each diocese and the appointee was to be wholly independent of the bishop.[35] Then a question arose whether Torquemada’s appellate jurisdiction, as inquisitor-general, could override judgements in which bishops participated, but this was settled in Torquemada’s favor by a brief of Innocent VIII, September 25, 1487, thus completely subordinating episcopal to inquisitorial jurisdiction.[36]

Ferdinand was not satisfied, but he had to acquiesce and adopt the device of the bishops delegating one of the inquisitors as their representative—an expedient for which precedents can be found in the early Inquisition of Languedoc. That this soon became common is indicated in the Instructions of 1484, which warns the inquisitor holding the commission that he is not to deem himself superior to his colleagues.[37] Another plan was to require the bishops to issue a commission as vicar-general to whomsoever the inquisitors might designate, as Ferdinand ordered the bishops of Aragon to do, in a letter of January 27, 1484. The individual thus selected became an official of the tribunal and was borne on its pay-roll for a salary to be paid out of the confiscations for which he might vote. Of this we have examples in Martin Navarro thus serving at Teruel, in 1486, on a yearly stipend of two thousand sueldos and in Martin Garcia, included as vicar-general at a salary of three thousand sueldos, in the Saragossa pay-roll of the same year.[38]

It is possible that the bishops grew restive under this absorption of their powers and that they remonstrated with the Holy See for, in 1494, when Alexander VI issued commissions to the four new inquisitors-general there appeared a new condition requiring them to exercise their functions in conjunction with the Ordinaries of the sees or their vicars or officials, or other persons deputized by the Ordinaries.[39] Ferdinand, however, was not accustomed to brook opposition to his will. The most efficient and economical expedient was the episcopal delegation to an inquisitor and this he enforced by whatever pressure was necessary. Thus when, in 1498, the Bishop of Tarazona demurred to do this, Ferdinand, in a letter of November 21st, brushed aside his reasons and imperatively ordered the delegation to be sent at once. Still the bishop recalcitrated and Ferdinand wrote, January 4, 1499, that he must do so at once; no excuse would be admitted and nothing would change his determined purpose, but it was not until March that he learned the bishop’s submission. In this same year, 1499, he broke down, in similar rude fashion, the resistance of two other bishops and when, in 1501, the Archbishop of Tarragona notified the tribunal of Barcelona not to hear, without his participation, certain cases committed to them on appeal, Ferdinand expressed his indignant surprise; the archbishop must remove the obstruction at once and not await a second command.[40]

Ferdinand’s resolve was to render episcopal concurrence a mere perfunctory form and, when bishops presumed to act or their vicars-general were distasteful to him, there are various cases which attest his imperious methods of dealing with them. He had some trouble, on this account, with his son, Alfonso Archbishop of Saragossa, who, in 1511, obtained the perpetual administratorship of Valencia and who persisted in retaining as his delegate the vicar-general of Valencia, Micer Soler, against the commands of his father, so that in 1512 and again in 1513, there was delay in the celebration of autos de fe, greatly to Ferdinand’s annoyance.[41] These occasional obstructions explain why, as he wrote November 27, 1512, he endeavored to reduce it to a rule that the Ordinary should confer his powers on the inquisitors and should not be allowed to see the cases.[42]

The people did not view the matter in the same light and regarded the participation of the bishop or his representative as some guarantee against the arbitrary proceedings of the inquisitors. Among the complaints of the prisoners of Jaen, in 1506, to Philip and Juana, is one reciting that the inquisitors act independently of the episcopal provisor and communicate nothing to him, so as to be able to work their wicked will without interference.[43] Similarly the Córtes of Monzon, in 1512, included among the abuses requiring redress the royal letters concerning episcopal concurrence, the delegation of powers to inquisitors and other methods by which the participation of the bishops was evaded, and when Leo X, in 1516, confirmed the Concordia, he ordered that the Ordinaries should resume their functions.[44] It was the same in Castile, where, as we have seen (Vol. I, p. 217) one of the petitions of the Córtes of Valladolid, in 1518, was that the episcopal Ordinaries should take part in the judgements.

While the petitions of Valladolid for the most part received scant attention, this one at least bore fruit for, with the removal of Ferdinand’s pressure, the bishops had an opportunity to reassert themselves. In 1520, a decision of Cardinal Adrian required the presence of both inquisitors and Ordinary at abjurations and confessions under Edicts of Grace and, in 1527, Manrique and the Suprema declared that the Ordinary concurred in the cases required by the law—an ambiguous phrase which seems to have been variously construed.[45] This was not conducive to harmony, the inquisitors grudging any intrusion on their jurisdiction and the Ordinaries insisting on their rights under the Clementines. In 1529, when the Suprema chanced to be at Toledo, the matter was brought before it by Diego Artiz de Angulo, fiscal of the local tribunal, in a memorial arguing that to require the presence of the Ordinary would entail great delay, as he often could not attend when summoned; besides, he was always in contradiction with the tribunal, as was notorious to all connected with the trials, objecting to pecuniary and light penalties and endeavoring to acquire jurisdiction at the expense of the Holy Office. At Angulo’s request, the Suprema had a number of witnesses examined, of whom the most important was Martin Ximenes, who had been occupied for forty years in the tribunals of Barcelona, Toledo, and Seville. He testified that the Ordinaries were only called in for the three acts specified in the Clementines, but in explaining details he showed that the inquisitors construed them in a fashion to exclude the Ordinary from much of his functions, for, in place of participating in all sentences, he was allowed to join only in convictions for heresy and bore no part in the lighter cases, the object being to prevent his claiming a share in the pecuniary penalties, although he was summoned to the consulta de fe in which they were voted on. Other witnesses bore the same testimony and it is not difficult to understand why the Ordinaries took little interest in the exercise of the jurisdiction thus arbitrarily limited.[46] It was probably owing to this discussion that the Suprema, January 25, 1530, told the tribunals that differences with the Ordinary must be avoided. In the same year it notified Valencia that all cases sent up to it must have been voted on by him and, in 1532, it sent similar orders to Barcelona, adding that the presence of the Ordinary was requisite at all abjurations.[47] Evidently the tribunals were jealous, the Ordinaries were rebuffed and discouraged, and the coöperation of the two jurisdictions was little more than a formal recognition of a virtually obsolete right.

The routine practice and its working are exemplified in the report of a summons served, August 8, 1534, on Blas Ortiz, then vicar-general of Toledo. It cited him to come and assist in despatching the accumulation of cases since the last auto de fe, held nearly four years before. He was to lay aside all other business and present himself daily at the morning audience to witness the torture in nine specified cases and, at the afternoon audience, to vote on ten of which the trials had been completed. He was notified that, if he did not come, the inquisitors, after the delay specified by law (eight days) would proceed without him. The summons was borne by the fiscal, accompanied by a notary, who made a formal act of the service. When the fiscal stated his errand, Blas Ortiz negligently told him that there was no necessity of reading the paper; he was not well but, if he were able, he would be present at all the cases; if he did not come he committed his powers to the two inquisitors, or to either of them who was willing to accept the commission.[48] Apparently Ortiz did not come, for in several sentences rendered this year at Toledo the inquisitors styled themselves “apostolic inquisitors holding the powers of the Ordinary.”[49]

From some motive, not clearly apparent, a custom arose to some extent of appointing episcopal Ordinaries or provisors as inquisitors. This was frequent enough to lead the Córtes of Madrid, in 1552, to complain of the combination of the two offices, because when a provisor arrested a layman, which he could not do legally, he claimed that he acted as inquisitor, with the result that many persons were subjected to infamy. They therefore petitioned that no provisor should also be inquisitor, to which the answer was returned that in such cases royal cédulas had been issued and that this would be continued.[50] Discouraging as was this reply, the petition seems to have made an impression for, in 1556, both Charles V and Philip II rebuked Inquisitor-general Valdés, who was also Archbishop of Seville, because his provisor was also inquisitor in that tribunal. His defence was that this had been the case in Seville for half a century, owing to the poverty of the tribunal, which paid only one-third the customary salaries and that he himself defrayed the stipend of the provisor.[51]

During the remainder of the century we generally find the participation of the Ordinary carefully recorded, whether it was by a special representative or by delegation to the inquisitors. In 1561, Inquisitor Cervantes takes the Barcelona tribunal to task for not keeping record of this and he orders the fiscal to observe it sedulously for, without the concurrence of the Ordinary, the sentence is invalid.[52] A carta acordada of October 15, 1574, reminds the tribunals that he must sign all sentences of torture and all final sentences on which he has a vote, but there was a rule that he did not sign sentences of acquittal, even though he had voted on them.[53] Yet how purely perfunctory was his participation appears in the case of Fray Hieronimo de la Madre de Dios, at Toledo, in 1618. In the consulta de fe, Melgoso, the provisor, agreed with one of the inquisitors and a consultor on a certain punishment; another inquisitor voted for a heavier penalty and, when the matter was submitted to the Suprema, it adopted the latter, but Melgoso obediently signed the sentence.[54] The inquisitorial jurisdiction, for all practical purposes, had absorbed the episcopal.

As the inquisitorial districts usually embraced several dioceses and it was impossible for the bishop or provisor of those at a distance from a tribunal to be personally present when their subjects were tortured or sentenced, it became customary for them to delegate their powers to some resident of the city which was the seat of the tribunal. That they were not always careful in their selection would appear when the tribunal of Sicily was obliged, in 1574, to notify an archbishop that he must appoint ecclesiastics and not laymen to sit in judgement on matters of faith.[55] Taking advantage of this carelessness the Inquisition undertook to control the character of appointees and it issued, August 17, 1637, instructions to bishops that their provisors must be graduates in canon law but, as canonists proved to be scarce, it was obliged, October 12, to modify this and permit the appointment of theologians. In accordance with this there is an entry by the tribunal of Valencia, that it will recognize Don Luis Crispi as Ordinary of Tortosa, although he is a theologian.[56]

Thus a further encroachment was made on episcopal jurisdiction by the Inquisition in claiming and exercising the right to determine whom it would recognize as a fit representative of the bishop. How offensively this was sometimes used was manifested in 1752, in Lima, when the inquisitors Amusquibar and Rodríguez were involved in a prolonged quarrel with the secular and ecclesiastical organizations. To annoy the inquisitors, Archbishop Barroeta notified them that in view of their bitter competencia with the viceroy, he withdrew the faculty of Don Fernando de la Sota as his representative and appointed Padre Francisco Larreta, S. J. To this they replied that they recognized his right to withdraw the faculty, but as for Larreta he was incapacitated by his profession from exercising the functions; if the archbishop would appoint some one in accordance with the statutes of the Holy Office and possessing the necessary qualifications, he would be received. The assumption that they would recognize only whom they pleased staggered the archbishop and he asked them to explain the disqualification of Larreta, to which they insolently replied that they had already stated what was sufficient for his guidance. He submitted and appointed the Franciscan Thomas de la Concha, who was accepted, but when the archbishop transmitted the correspondence to Inquisitor-general Prado y Cuesta and asked for reparation he obtained none.[57]

Episcopal concurrence had never been more than a bare formality in recognition of the immemorial jurisdiction of bishops over heresy and, as time wore on, the Inquisition became careless even of this. In a number of trials by the tribunal of Madrid, between 1703 and 1710, the inquisitors are recorded as acting sometimes with and sometimes without the episcopal representatives and, in the latter half of the century, a writer informs us that the concurrence of the Ordinary is unusual; it depends on the will of the inquisitors, who sometimes summon him and sometimes do not.[58] Still there were some bishops, zealous for the claims of their order, who persisted in asserting this remnant of jurisdiction. Antonio Tavira, Bishop of Canaries, and subsequently of Salamanca, expressed their feelings when, in 1792, he complained to Carlos IV of the treatment of the episcopal order by the Inquisition, saying that they had ceased to vote in cases of faith in order to escape the humiliation and degradation to which they were exposed; they sent their vicars, although this was indecorous and wholly useless, but they felt that they must preserve this little shadow of a jurisdiction which was rightly theirs.[59]

Under the Restoration greater attention seems to have been paid to episcopal concurrence and the adherence to strict formalities is shown in a duplicate trial of Juan Antonio Manzano, a physician of Lumbrales in the diocese of Ciudad-Rodrigo and inquisitorial district of Llerena. In 1817 he was tried for heretical propositions by the tribunal of Logroño, which inquired of the Suprema whether the Ordinary of its own diocese could act and was told that the authority of the culprit’s own bishop was imperative and that the Bishop of Ciudad-Rodrigo must appoint a representative. The next year Manzano was again arrested, for the same offence, by the tribunal of Llerena and was transferred to Seville because Llerena had no prison. April 17, 1819, the Seville tribunal asked whether its own Ordinary could join in the sentence and received the same answer—that it must apply to the Bishop of Ciudad-Rodrigo to make an appointment.[60] It was all the merest technicality, for by this time the Suprema decided all cases, irrespective of how the consulta de fe might vote and thus the incontestable episcopal jurisdiction over heresy was practically abolished.

As regards the internal forum, or forum of conscience, the Inquisition claimed and enjoyed a still more absolute jurisdiction than in the external forum for which it had been primarily instituted. While in a formal and perfunctory manner it recognized the episcopal claims in the judicial forum, it so employed its delegated papal authority as to vindicate with the utmost jealousy exclusive control over the forum of conscience in matters of heresy. Bishops, in fact, had long before been ousted from this by the invention of papal reserved cases—cases in which sacramental absolution could only be had from the Holy See, thus creating a profitable market for its indulgences, confessional letters and the absolutions of its Penitentiary. Heresy was the chief sin anathematized in the early form of the bull, subsequently known as in Cœna Domini, from its annual publication on Holy Thursday and, in 1364, Urban V placed all the offences enumerated in it under the jurisdiction of the papal chamberlain.[61] The papacy thus assumed exclusive control over the sin of heresy, for which no absolution could be granted save by papal delegation, and Paul II, in 1469, and Sixtus IV, in 1478, issued further decrees to the effect that special licence was necessary for this, as no general commissions were held to cover it.[62] The Council of Trent, in 1563, timidly endeavored to revendicate a fraction of episcopal rights by asserting that bishops, in the forum of conscience only, could personally absolve for secret or occult heresy, but the Roman Inquisition, by repeated decisions based on the utterances of St. Pius V and Gregory XIII, overrode the conciliar decree and deprived them of that slender remnant of their functions.[63]

This strict reservation of the sin of heresy was imperfectly understood in Spain and so little was known of the laws of persecution that at first the New Christians, who apprehended arrest, endeavored to escape by sacramental confession and absolution, ignorant that already in the thirteenth century it had been decided that the pardon of the sin, in the forum of conscience, did not cover the crime in the judicial forum. This method of evasion could not be allowed and yet the Inquisition was uncertain how to act. A brief was therefore procured, November 10, 1487, from Innocent VIII, addressed to all the inquisitors and Ordinaries in Spain, reciting their doubts about proceeding against those who assert that they have secretly confessed and abjured to their confessors. To overcome this it was asserted that the decrees of the fathers required such abjurations to be accompanied by an oath, taken before an Ordinary, in presence of a notary and witnesses, never to return to the abjured heresy, wherefore the inquisitors were empowered to proceed against all who had not observed this rule.[64] If such a rule had ever existed, which is doubtful, it had long been forgotten and was wholly unknown in Spain, so that all who had had recourse to this device were brought under the jurisdiction of the Inquisition.