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.
THE principal source of strife between the Inquisition and the other authorities arose from its claim to exclusive competence in all cases involving those connected with it and their dependents. This gave rise to perpetual conflicts, conducted with the utmost tenacity, which filled the land with confusion and, in many cases, rendered the administration of justice a mockery. For two centuries the monarchs vainly endeavored to keep the peace by repeated efforts to define the boundaries between the rival jurisdictions and the methods of settling their differences. The tireless efforts, on the one side, of the Holy Office to extend its authority and increase its emoluments caused it constantly to violate compacts, while the jealousy of the civil magistracy on the other and its natural desire to repel intrusion rendered it prompt to use whatever means lay in its power. The struggle was unequal against the superior weapons furnished by papal faculties and against the royal favor which was with the Inquisition, but the conflict was maintained with marvellous constancy, supported by popular sympathy, and the time of the king and his advisers was frittered away in deciding a continuous stream of petty quarrels, growing out of trivial incidents, but assuming portentous proportions through the violent methods which had aggravated them.
To understand the claim of the Inquisition to exclusive cognizance of the cases of its subordinates it is necessary to bear in mind the benefit of clergy, through which, from the early middle ages, all clerics were exempted from the jurisdiction of the laity and were subjected wholly to the spiritual courts. This amounted virtually to immunity for crime, both because those courts were debarred from rendering judgements of blood and because of the inevitable favoritism manifested to those of their own cloth.[1047] As civilization advanced the disorders caused by a class, thus emboldened in wrong-doing by impunity, were the source of constant solicitude to rulers and were deplored by right-thinking churchmen. In this, Spain was no exception. In a project of instructions drawn up by a Spanish bishop for the delegates to the Lateran Council in 1512, the crimes and scandals perpetrated by married clerks and those in the lower orders, through expectation of immunity, are dwelt upon as reasons for a change; there were daily conflicts between the spiritual and secular courts, leading to interdicts cast on cities and some universal legislation by the Church was desirable.[1048] No such remedy was adopted, and when the Council of Trent gave promise of reform, the Spanish prelates, in contrast with the Inquisition, which made every effort to extend its jurisdiction over offenders, proposed in 1562 to the council that married clerks wearing secular habits should not enjoy protection from secular justice.[1049] In 1544, Fernando de Aragon, when Viceroy of Valencia, declared that his principal trouble lay with the Church, of which the chief object was to protect evil-doers and liberate them from his justice, an opinion in which he was heartily seconded by the saintly Tomás de Vilanova, then recently appointed archbishop.[1050]
LATITUDE IN SECULAR AFFAIRS
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
