In the copy of the deposition the _third person_ shall be used, although the witness spoke to the _first_. Thus it must be said: The witness has seen or heard the accused conversing with an individual, &c.[25]
33rd. If an accused, who has made declarations in several sittings, reveals crimes committed by persons whom he named, and afterwards makes new declarations, only cites these persons in a vague and general manner, employing for example, the words, _all those whom I have named_, or a similar expression; these accusations cannot be brought against any accused person, as they do not apply in a direct manner; this must oblige the inquisitors to pay attention to the prisoner who speaks of different individuals, and cause him to name them one after the other, and afterwards to state the facts or words which he imputes to them.
34th. Although the accused has denied the charges, the publication of the depositions must be read to him, that he may not call in question the regularity of the proceedings of the tribunal which has arrested him, and that the judges may rely with more confidence on the law when they pa.s.s sentence; for this discretionary power exists only if the accused is convicted and confesses himself guilty; otherwise the charges brought against him by the witnesses, whose declarations have not been mentioned to him, cannot be of any value, particularly in a trial of this kind, when the accused is not present at the oath of the witnesses.
35th. When the accused has replied to the publication of the depositions, he shall be permitted to consult with his advocate, in the presence of an inquisitor and the recorder, that he may prepare his defence. The recorder shall write down the particulars of the conference which he considers worthy of attention. Neither the inquisitor nor recorder, still less the advocate, shall remain alone with the accused.
It shall be the same with all other persons, except the gaoler or his deputy. It is sometimes eligible that learned and pious persons should visit the accused, to exhort them to confess what they obstinately deny, though they have been convicted. These interviews can only take place in the presence of the recorder or an inquisitor. Procurators shall not be permitted to be appointed for the prisoner, though the _old instructions_ have established this measure, because experience has shown that great inconvenience arises from it[26]; besides which, the accused derives little advantage from it[27]. If any unforeseen circ.u.mstance renders this measure necessary, the advocate may be appointed to fill the office.
36th. If the accused wishes to write, to fix the points of his defence, he shall be furnished with paper: but the sheets shall be counted and numbered by the recorder, that the accused may give them back again either written upon or blank. When his work is finished, he shall be allowed to converse with his advocate, to whom he may communicate what he has written, on condition that his defender restores the original without taking a copy when he presents his address to the tribunal. When there is an examination in the defence of the prisoner, he shall be required to name, on the margin of each article, the witnesses he wishes to call, that those who are the most worthy of credit may be examined.
He must also be required to name as witnesses none but Christians of an ancient race, who are neither his servants nor relations, unless it is a case when the questions can only be answered by them[28]. Before the address is presented by the advocate, if the accused requires it, it shall be communicated to him, and the inquisitors shall desire the advocate to confine himself to the defence of the accused in what he has to say, and to observe a strict silence on everything said in the world, as experience has shown the inconvenience of this sort of revelations, even in respect to the accused persons; they shall cause him to restore all the papers, without taking copies of them, or even of the address, of which he must give up the notes, if there are any.
37th. Whenever the prisoner is admitted to an audience, the fiscal shall examine the state of the trial, to ascertain if he has declared anything new of himself or others; he shall receive his declaration judicially, and mark the names of the persons of whom he has said anything, and all the other points which might elucidate the affair, in the margin.
38th. The inquisitors shall receive the informations relative to the defence of the accused, the depositions in his favour, the indirect proofs and challenges of the witnesses, with as much care and attention as they receive those of the fiscal; that the detention of the prisoner, which prevents him from acting for himself, may not be an obstacle to the discovery of the truth.
39th. When the inquisitors receive important information in defence of the prisoner, he shall be brought before the tribunal accompanied by his advocate; they shall inform him that the proofs of all the circ.u.mstances which might mitigate his crime have been received, and that they can conclude the trial, unless any other demand occurs on their part, in which case they will do everything which may be permitted for the prisoner. If he declares that he has nothing more to say, the fiscal may give in his conclusions. It will be proper, however, that he should not do it immediately, that he may take advantage of every circ.u.mstance that may take place. If the accused demands the publication of the depositions in his defence, it must be refused, as it may tend to discover the persons who have deposed against him[29].
40th. When the trial is so far advanced that the sentence may be pa.s.sed, the inquisitors shall convoke the ordinary and the consulters. As there is no reporter, the dean of the inquisitors shall report the trial, without giving any opinion, and the recorder shall read it in the presence of the inquisitors and the fiscal, who shall sit by the consultors, and retire when he has heard the report, before the judges give their votes. The consultors shall give their votes first, and then the ordinary, the inquisitors after him, and the dean the last. Each voter shall be at liberty to make any observations which he thinks proper in giving his vote, without being interrupted or prevented. If the inquisitors gave different votes, they shall explain their motives, to prove that there is nothing arbitrary in their conduct. The recorder shall write each opinion in a register prepared for the purpose, and shall afterwards join it to the trial, to give testimony of it.
41st. When the accused confesses himself guilty, and his confessions have the required conditions, if he is not relapsed, he shall be admitted to reconciliation; his property shall be seized; he shall be clothed in the habit of a penitent, or a _san-benito_ (which is a scapulary of linen or yellow cloth, with two crosses of St. Andrew of another colour), and he shall be confined in the prison for those who are condemned to perpetual imprisonment, namely, that of _Mercy_. As to the colours of the habit he is to wear, and the confiscation of his property, there are _Fueros_ and privileges existing in some provinces of Aragon, and other rules and customs which must be conformed to, in acquitting the criminal, and restoring his ordinary garments to him, according to the sentence. If it is proper that he should remain in prison for an unlimited time, it shall be said in his sentence, that his punishment shall last as long as the inquisitors think proper. If the accused has really relapsed, after abjuring a _formal_ heresy, or is a _false penitent_ when he has abjured as _violently_ suspected, and is convicted in the present trial of the same heresy, he shall be given up to the common judge according to the civil law, and his punishment shall not be remitted, although he may protest that his repentance is sincere, and his confession true in this case.
42nd. The abjuration must be written after the sentence, and signed by the accused: if he is incapable of signing it, this ceremony must be performed by an inquisitor and the recorder: if the condemned abjures in a public _auto-da-fe_, the abjuration must be signed the next day, in the chamber of audience.
43rd. If the accused is convicted of heresy, bad faith, and obstinacy, he shall be _relaxed_, but the inquisitors must not neglect to endeavour to convert him, that he may die in the faith of the church.
44th. If an accused who has been condemned, and informed of his sentence on the day before the _auto-da-fe_, repents during the night and confesses his sins, or part of them, in a manner that shows true repentance, he shall not be conducted to the _auto-da-fe_, but his execution shall be suspended, because it might be improper to allow him to hear the names of the persons condemned to death, and those condemned to other punishments, for this knowledge and the report of the offence might a.s.sist him in preparing his judicial confession. If the accused is converted on the scaffold of the _auto-da-fe_, before he has heard his sentence, the inquisitors must suppose that the fear of death has more influence in this conversion than true repentance; but if, from different circ.u.mstances and the nature of the confession, they wish to suspend the execution, they are permitted to do so, considering at the same time that confessions made in such circ.u.mstances are not worthy of belief, and more particularly those which accuse other individuals.
45th. The inquisitors must maturely consider motives and circ.u.mstances before they decree the torture; and when they have resolved to have recourse to it, they must state the motive: they must declare if the torture is to be employed _in caput proprium_, because the accused is subjected to it as persisting in his denials, and incompletely convicted in his own trial; or if he suffers it _in caput alienum_, as a witness who denies, in the trial of another accused, the facts of which he has been a joint witness. If he is convicted of bad faith in his own cause, and is consequently liable to be _relaxed_, or if he is equally so in any other affair, he may be tortured, though he must be given up to the secular judge for what concerns him personally. If he does not reveal anything in being tortured as a witness, he shall nevertheless be condemned as an accused; but if the question forces him to confess his crime, and that of another person, and he solicits the indulgence of his judges, the inquisitors shall conform to the rules of right.
46th. If only a semi-proof of the crime exists, or if appearances will not admit of the acquittal of the prisoner, he shall make an abjuration as being either _violently_ or _slightly_ suspected. As this measure is not a punishment for the past, but a precaution for the future, pecuniary penalties shall be imposed; but he shall be informed that if he again commits the crime for which he was denounced, he will be considered as having _relapsed_, and be delivered over to the secular judge: for this purpose he shall sign his act of abjuration.
47th. In cases where only the semi-proof, or some indications of a crime exist, the accused has been sometimes permitted to clear himself canonically before the number of persons appointed in the ancient instructions; the inquisitors, the ordinary, and the consultors, may therefore allow it if they think proper, but they must observe that this proceeding is very dangerous, not often used, and can only be employed with great caution[30].
48th. The third manner of proceeding in this case is to employ the _question_. This measure is thought to be dangerous and not certain, because its effects depend upon the physical strength of the subject; consequently no rule can be prescribed on this point, but it is left to the prudence and equity of the judges. Nevertheless the question shall only be decreed by the ordinary, the consultors, and the inquisitors, or applied without their concurrence, as circ.u.mstances may occur, when their presence would be necessary[31].
49th. When it is necessary to decree the torture, the accused shall be informed of the motives for employing it, and the offences for which he is to suffer it; but after it has been decided he shall not be examined on any particular fact, he shall be allowed to say what he pleases.
Experience has shown that if he is questioned on any subject when pain has reduced him to the last extremity, he will say anything that is required of him, which may be injurious to other persons, in making them parties concerned, and producing other inconveniences.
50th. The question shall not be decreed until the process is terminated, and the defence of the accused has been heard. As the sentence of recourse to the question admits of an appeal, the inquisitors shall consult the council, if the case is doubtful; if the accused can maintain his appeal, it shall be admitted. But if the point of law is clear, the inquisitors are not required to consult the council, or to admit the application of the accused; they are at liberty to proceed immediately to execution, as if it had not been made.
51st. If the inquisitors think that the appeal ought to be admitted, they shall send the writings of the process to the Supreme Council, without informing the parties, or any individual not belonging to the tribunal, because the council will send an order to the inquisitors, if it is considered proper that they should be made acquainted with it.
52nd. If an inquisitor is challenged, and there is another in the tribunal, the first shall abstain from performing his office, and the second shall take his place, after the council has been informed of the circ.u.mstance. If there is only one inquisitor in the tribunal, the proceedings shall be suspended until the decision of the Supreme Council has been received; the same course shall be pursued if there are several inquisitors, and they are all challenged.
53rd. Twenty-four hours after the accused has been put to the question, he shall be asked if he persists in his declarations, and if he will ratify them. The notary of the tribunal shall appoint the time for this formality, and likewise that for the application of the question. If at this moment the accused confesses his crimes, and afterwards ratifies his declarations in such a manner that the inquisitors may believe him to be converted, repentant, and sincere in his confessions, he may be admitted to reconciliation, notwithstanding the article in the ordinance of Seville, in 1484. If the accused retracts his declaration, the inquisitors shall proceed according to rule.
54th. When the inquisitors, the ordinary, and the consultors decree the question, they shall not decide on what is to be done after it has been administered, as the result is uncertain, nothing being regulated on this point. If the accused resists the torture, the judges shall deliberate on the nature, form, and quality of the torture which he has suffered; on the degree of intensity with which it was inflicted; on the age, strength, health, and vigour of the patient: they shall compare all these circ.u.mstances, with the number, the seriousness of the indications which lead to the supposition of his guilt, and they shall decide if he is already cleared by what he has suffered; in the affirmative they shall declare him free from prosecution, in the other case he shall abjure according to the nature of the suspicion.
55th. The judges, notary, and the executioners shall be present at the torture; when it is over, the inquisitors shall cause an individual who has been wounded to be properly attended, without allowing any suspected person to approach him, until he has ratified his declarations.
56th. The inquisitors shall take every precaution that the gaoler shall not insinuate anything to the accused relating to his defence, that he may only follow his inclination in all that he says. This measure does not allow the gaoler to fill the office of guardian or defender to the prisoner, or even representative of the fiscal; he may however serve as a writer for the accused, if he does not know how to write: in this case he shall be prohibited from subst.i.tuting his own ideas for those of the accused.
57th. The affair being for the second time in a state for pa.s.sing sentence, there shall be a new audience of the inquisitors, the ordinary, the consultors, the fiscal and the notary. The fiscal shall hear the report of the last incidents, to ascertain if it contains anything important relating to his office; after it has been read he shall retire, that the judges may remain alone when they proceed to vote.
58th. When the inquisitors release an accused person from the secret prisons, he shall be conducted to the chamber of audience; they shall there ask him if the gaoler treated him and the other prisoners well, or ill; if he has communicated with him or other persons on subjects foreign to the trial; if he has seen or known that other prisoners conversed with persons not confined in the prison, or if the gaoler gave them any advice. They shall command him to keep secret these details, and all that has pa.s.sed since his detention, and shall make him sign a promise to this effect, if he knows how to write, that he may fear to break it.
59th. If a prisoner dies before his trial is terminated, and his declarations have not extenuated the charges of the witnesses, so as to give a sufficient cause for reconciliation, the inquisitors shall give notice of his death to his children, his heirs, or other persons who have the right of defending his memory and property; and, if there is cause to pursue the trial of the deceased, a copy of the depositions and the act of accusation shall be remitted to them, and all that they advance in defence of the accused shall be received.
60th. If the mind of an accused person becomes deranged before the conclusion of the trial, a guardian or defender shall be appointed for him; if the children or relations of the accused present any means of defence in his favour to the tribunal, when he is in possession of his senses, the inquisitors shall not permit them to be joined to the other writings of the process, because neither the children nor relations of the accused are lawful parties; yet in a distinct and separate writing they may decree what they think fit, and take measures to discover the truth, without communicating with the prisoner, or the persons who represent him.
61st. When sufficient proof exists to authorize proceedings against the memory and property of a deceased person, according to the _ancient instruction_, the accusation of the fiscal shall be signified to the children, the heirs, or other interested persons, each of whom shall receive a copy of the notification. If no person presents himself to defend the memory of the accused, or to appeal against the seizure of his goods, the inquisitors shall appoint a defender, and pursue the trial, considering him as a party. If any one interested in the affair appears, his rights shall be admitted, although he should be a prisoner in the holy office at the time; but he shall be obliged to choose a free person to act for him. Until the affair is terminated, the sequestration of the property cannot take place, because it has pa.s.sed into other hands: yet the possessors shall be deprived of it, if the deceased is found guilty.
62nd. If a person is found not liable to prosecution, this resolution of the tribunal shall be announced in the _auto-da-fe_ by a public act, in any manner most suitable to the interested party; the errors with which he was charged shall not be designated, if the accusation is not proved. If a deceased person is p.r.o.nounced free from prosecution, the judgment shall be formally published, because the action was public and notorious.
63rd. When a defender is appointed for the memory of a person accused after his death, in default of interested persons to take his defence, the choice must only fall on a person not belonging to the Inquisition; but he must be required to keep all the proceedings secret, and not to communicate the _depositions_ and the accusations to any but the lawyers of the prisoners, unless a decision of the inquisitors authorize him to make them known to other persons.
64th. When absent individuals are to be tried, they shall be summoned to appear, by three public acts of citation at different intervals, according to the known or supposed place of their residence. The fiscal shall denounce them contumacious, at the end of each citation.
65th. The inquisitors may take cognizance of several crimes which occasion suspicion of heresy, although they do not consider the accused an heretic, on account of certain circ.u.mstances; such as bigamy, blasphemy, and suspicious propositions. In these cases the application of the punishments depends upon the prudence of the judges, who ought to follow the rules of right, and consider the gravity of the offence.
However, if they condemn the accused to corporeal punishment, such as whipping, or the galleys, they shall not say that it may be commuted for pecuniary penalties; for this measure would be an extortion, and an infringement of the respect due to the tribunal.
66th. If the inquisitors and the ordinary differ in opinion when they a.s.semble to give their votes on the definitive sentence, the trial shall be referred to the Supreme Council; but if the division is produced by the manner in which the consultors have voted, the inquisitors may pa.s.s them over, (although they may be more numerous,) and establish the definitive sentence on their own votes, and that of the ordinary, unless the importance of the case compels them to apply to the council, even if the inquisitors, the consultors, and ordinary are unanimous[32].
67th. The _secret notaries_ shall draw up as many literal and certified copies of the declarations of the witnesses, and the confessions of the accused, as there are persons designated as guilty, or suspected of the crime of heresy, that there may be a separate proceeding against each; for the writings which contain the original charges are not sufficient, since experience has shown that it always causes confusion, and the prescribed method has been employed several times, although it increases the labour of the notaries.
68th. When the inquisitors are informed that any of the prisoners have communicated with other detained persons, they shall ascertain the truth of the fact, inform themselves of the name and quality of the denounced persons, and if they are accused of the same species of crime. These details shall be mentioned in the process of each prisoner. In these cases little credit can be given to any subsequent declarations made by these persons, either in their own cause, or in the trial of another.
69th. Where a trial has been suspended by the inquisitors, if another commences, though for a different crime, the charges of the first shall be added to those of the second, and the fiscal shall maintain them in his act of accusation, because they aggravate the new crime of which the prisoner is accused.
70th. When two or more prisoners have been placed in the same prison, they shall not be afterwards separated, or introduced to other companions; if extraordinary circ.u.mstances make it impossible to comply with this order, they shall be stated in the process of each person, and this incident ought to diminish the weight of their declarations after the change; for it is certain that each prisoner will tell his companions all that he knows and has seen, and that these reports will influence the other prisoners in the recantations which they sometimes oppose to their first confessions.
71st. If a prisoner falls sick, the inquisitors must carefully provide him with every a.s.sistance, and more particularly attend to all that relates to his soul. If he asks for a confessor, the inquisitors shall summon a learned man, worthy of possessing their confidence; they shall recommend that he shall not undertake any commission for any person, during the sacramental confession; and if the accused gives him one out of the tribunal of penance, that he shall communicate to the Inquisition everything relating to his trial. The confessor shall be required to inform the accused that he cannot be absolved in the sacrament of penitence, unless he confesses the crime of which he is accused. If the sick person is in danger of dying, or is a woman about to be delivered, the rules appointed for such cases shall be followed. If the accused does not ask for a confessor, and the physician declares that he is in danger, he shall be induced to make the request, and to confess himself.
If the accused makes a judicial confession of his crime, agreeing with the charges, he shall be reconciled, and when he has been acquitted by the tribunal, the confessor shall give him absolution. In case of death, ecclesiastical sepulture shall be granted, but secretly, unless it is inconvenient. If the accused demands a confessor when he is in good health, it may be useful to refuse it, as he cannot be absolved until after his reconciliation; unless he has already judicially confessed enough to justify the charges: in that case the confessor may encourage him to be patient.
72nd. The witnesses in a trial shall not be confronted, because experience has shown that this measure is useless and inconvenient, independently of the infringement of the law of secrecy which is the result.
73rd. When an inquisitor visits the towns of the district of his tribunal, he shall not undertake any trial for heresy, or arrest any denounced person, but he shall receive the declarations and send them to the tribunal. Yet if it is the case of a person whose flight may be apprehended, he may be arrested and sent to the prisons of the holy office; the inquisitor may also decide upon affairs of small consequence, such as heretical blasphemies, which may be judged without arresting the parties. The inquisitor shall not exercise this authority without being empowered by the ordinary.
74th. In the definitive sentence p.r.o.nounced against an individual declared guilty of heresy, and condemned to be deprived of his property, the period when he first fell into heresy shall be indicated, because this knowledge may be useful to the steward of the confiscations; it shall likewise be mentioned if this declaration is founded on the confession of the accused, on the depositions of the witnesses, or on both. If this formality is omitted, and the steward demands that it shall be fulfilled, the inquisitors shall comply; if it cannot be done by all together, it shall at least be executed by one of them, or the consultors.
75th. An account shall be given by the gaoler of the common and daily nourishment of each prisoner, according to the price of the eatables; if there is in the prison a person of quality, or who is rich and has several domestics, he shall be supplied with the quant.i.ty of food which he requires, but only on condition that the remnants be distributed to the poor, and not given to the gaoler.
76th. If the prisoner has a wife or children, and they require to be maintained from his sequestrated property, a certain sum for each day shall be allowed them, proportioned to their number, age, quality, and the state of their health, as well as to the extent and value of these possessions. If any of the children exercise any profession, and can thus provide for themselves, they shall not receive any part of the allowance.
77th. When any trials are terminated and sentences pa.s.sed, the inquisitors shall fix the day for the celebration of an _auto-da-fe_.
They give notice of it to the ecclesiastical chapter and the munic.i.p.ality of the town, and likewise to the president and the judges of the royal court, if there is one, that they may a.s.semble with the tribunal, and accompany it to the ceremony according to custom. They shall use proper means that the execution of those who are to be _relaxed_ shall take place before night, in order to prevent accidents.
78th. The inquisitors shall not permit any person to enter the prisons on the day before the _auto-da-fe_, except the confessors and the _familiars_ of the holy office when their employments make it necessary.
The _familiars_ shall receive the prisoner and be responsible for him, after the notary has taken evidence of it in writing, and shall be required to take him back to the prisons after the ceremony of the _auto-da-fe_, if he is not given over to the secular judge; they shall not allow any person to speak to him on the road, or inform him of anything that is pa.s.sing.