History of the Inquisition of Spain. Henry Charles Lea

      We have seen the limitations imposed by Ferdinand and the bull Pastoralis officii and the reiteration of the principle that the plaintiff must seek justice in the court of the defendant. As far as regards Castile, Charles V had overthrown this in criminal matters for both officials and familiars. Civil cases remained in a somewhat undetermined state, especially concerning familiars, the inquisitors endeavoring to grasp as far as they could both the active and passive fuero. When, in 1551, complaints came from Valencia that the tribunal was collecting debts for familiars, Inquisitor-general Valdés wrote that he did not know how this had come to pass and called for precise information as to when it had commenced and generally as to the method observed in the civil cases, active and passive, of familiars, so that he could answer Prince Philip.[1067] There was a good deal of uncertainty about the whole subject; the courts were restive and the situation was becoming strained. In the endeavor to settle it, Charles, in 1542, reissued his edict of 1518 with a sobre carta emphatically commanding its strict observance and forbidding the secular courts from any cognizance of the criminal cases of officials or familiars.[1068] This did not mend matters. The courts persisted in exercising jurisdiction over familiars, the recurso de fuerza was freely invoked and competencias multiplied. Both sides appealed to Charles, who was in Germany, and this time the opponents of the Inquisition gained the advantage. Prince Philip, as regent, issued a cédula, May 15, 1545, in which he described how laymen, subject to the secular courts, obtained immunity for their crimes on pretext of being familiars; how the tribunals, in defending them, cast excommunications on the officers of justice, through which scandals and disquiet were daily increasing, and the course of justice was impeded. The familiars were in no way entitled to immunity from the secular courts, as they were not officials, although a different custom existed in Aragon and the inquisitors pretended to it in Castile, under the cédula of 1518 and the sobrecédula of 1542, but these were both irregular, not having been despatched by the Council and Secretariat of Castile as is customary and necessary. Therefore in order that delinquent familiars may not remain unpunished and be induced to commit crimes by the prospect of immunity, the emperor ordered the matter to be thoroughly discussed and meanwhile the cédulas of 1518 and 1542 to be suspended, in conformity with which they are declared to be suspended, inquisitors are ordered no longer to take cognizance of the cases of familiars and the secular courts are instructed to prosecute them in accordance with the laws.[1069]

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

      THE LAW IN CASTILE

      The Concordia was silent as to the salaried officials, thus leaving them in possession of the active and passive fuero in both civil and criminal cases. It devoted itself wholly to the familiars who, in this as in so much else, were the leading source of trouble. After regulating, as we shall see hereafter, their number and character, it defined that in civil cases they should be subject wholly to the secular courts. For the greater crimes, moreover, cognizance was also reserved exclusively to the courts, the list comprising treason, unnatural crime, sedition, violating royal safe-conducts, disobedience to royal mandates, treachery, rape, carrying off women, highway robbery, arson, house-breaking and crimes of greater magnitude than these, as well as resistance or formal disrespect to the royal courts. Those who held office were also amenable to the courts for official malfeasance. This left only petty offences subject to inquisitorial jurisdiction and for these familiars were liable to arrest by secular magistrates, subject to being immediately transferred to the Inquisition. For doubtful cases it was provided that, when the lay judge and inquisitor could not agree, there should be no contention, but the evidence was to be sent to the court of the king, where two members each of the Suprema and Council of Castile should decide as to the jurisdiction; for this a majority was required and, in case of equal division of votes, the matter went to the king for final decision. No appeal from this was allowed and meanwhile the accused was retained in the prison to which he had been consigned at arrest.[1072] This process of adjudicating disputes became known as competencia, the details of which will be considered hereafter.

      Whatever concession the Inquisition made in thus surrendering a portion of its jurisdiction over familiars was more than compensated by what was evidently part of the agreement, the issue on the same day of Philip’s cédula addressed to all judicial bodies forbidding them to entertain appeals of any kind from the acts of the Holy Office (p. 341). It thus secured complete autonomy; it was rendered self-judging, responsible to the king alone, and the populations were surrendered wholly to its discretion.

      As far as regards Castile, the Concordia of 1553 was final. It is true that the royal cédula of Aranjuez, April 28, 1583, extended its principles to the salaried officials, but there is no trace of the observance of this.[1073] Another point was subjected to a temporary modification. The absolute denial of justice in allowing inquisitors to have their civil suits decided by their own tribunals attracted attention, after nearly a century, and the Suprema, February 18, 1641, ordered that these cases should be referred to it, when, if it deemed proper, it would commission the tribunal to hear them, but this slender restriction seems to have elicited so active an opposition that it was withdrawn within three months by a counter order of May 14th, restoring to the inquisitors the power of sitting in judgement on their own cases.[1074] It is easy to conceive the amount of oppression and wrong which they could thus inflict.

      With these trivial exceptions the Concordia remained the law in Castile. In 1568 Philip II issued a cédula stating that it had not been observed, wherefore he ordered strict compliance with it and, as late as 1775 Carlos III treats it as being still in force and to be respected by all parties.[1075] If Philip, however, expected peace between the rival and jealous jurisdictions, as the result of the Concordia, he deceived himself. Both were eager for quarrel and opportunities to gratify combative instincts were not lacking. The secular courts resented the intrusion of the Inquisition, which was careful to keep antagonism active by the insulting arrogance of its methods, whenever a question arose between them. There was ample field for contention, for not only were the excepted crimes loosely defined, giving rise to many nice questions, but the Inquisition acutely argued that before the royal courts could assume possession of a case the crime must be fully proved, for the familiar was entitled to the fuero until his guilt was ascertained, thus keeping in its own hands all the vital parts of the process and excluding the secular justices.[1076] Then the circle of excepted cases was enlarged, not only for familiars but for salaried officials, by various edicts from time to time, as we have seen with regard to pistols and discharging fire-arms. Another instance was a cédula of Philip II, in 1566, including among exceptions the violation of royal pragmáticas, which was put to the test, in 1594, when the Chancellery of Granada prosecuted a notary of the tribunal for wearing a larger ruff than was allowed by a sumptuary pragmática; the tribunal excommunicated the judges but, when the case was carried up to the Suprema and Council of Castile, the Chancellery was justified.[1077] In the frenzied efforts to maintain the value of the worthless vellon coinage, Philip IV, by repeated edicts between 1631 and 1660, deprived familiars and salaried officials of the fuero in cases of demanding more than the legal premium for the precious metals or of counterfeiting or importing base money.[1078] Frauds on the revenue from tobacco also deprived all offenders of exemptions, by a pragmática of 1719, but it was difficult to enforce and had to be repeated in 1743, after which at last Inquisitor-general Prado y Cuesta, in 1747, ordered the tribunals to obey it.[1079]

      VALENCIA

      Although Navarre was under the crown of Castile, the Concordia of 1553 was not extended to