there was a time when it seemed as though it might throw off all subjection and become dominant. But for the prudence of Ferdinand, in insisting upon the power of appointment and dismissal, this might have happened in the temper of the Spanish people, trained to an exaltation of detestation of heresy which to us may well appear incomprehensible. There is no question that, under the canon law, kings, like their subjects, were amenable to the jurisdiction of the Inquisition and that they held their kingdoms on the tenure not only of their own orthodoxy but of purging their lands of heresy and heretics. The principles which had been worked so effectually for the destruction of the Houses of Toulouse and of Hohenstaufen and under which Pius V released the subjects of Queen Elizabeth from their allegiance, in 1570, were fully recognized in Spain as vital to the faith.[849] But beyond this the Spaniards, in the exuberance of their religious ardor, boasted that their national institutions conditioned orthodoxy as necessary to their kingship. Even when the seventeenth century was well advanced, a learned and loyal jurisconsult tells us that, from the time of the sixth Council of Toledo, in 638, their monarchs had imposed on themselves the law that, if they fell into heresy, they were to be excommunicated and exterminated; that Ferdinand, in 1492, had renewed this law and that he had instituted that most severe tribunal the Inquisition and had sanctioned that, in view of the Toledan canon, all kings in future should be subject to it.[850] Even Spanish loyalty could not have been relied upon to sustain a king suspect of heresy, against the claims of the Holy Office to try him in secret, and suspicion of heresy was a very elastic term. Impeding the Inquisition came within its definition and any effort to curb the arrogant extension of its powers could readily be so construed, as Macanaz found to his sorrow. The fact that the Inquisition possessed such power must have had its influence more than once on the mind of the sovereign when engaged in debate with his too powerful subject and perhaps explains what appears to us occasionally a pusillanimous yielding.
The monarchs had guarded the Inquisition against all supervision and all accountability to the other departments of government. Within its own sphere it was supreme and irresponsible and its sphere, owing to the exemption from the secular courts accorded to all connected with it in however remote a degree, covered a large area of civil and criminal business, besides its proper function of preserving the purity of the faith. In this self-centered independence it stood alone. Even the spiritual jurisdiction of the Church, so jealously guarded, had become subject to the recurso de fuerza, which, like the French appel comme d’abus, gave to those who suffered wrong an appeal to the Council of Castile.[851] But even from this the Inquisition was exempt. A decree of Prince Philip, in 1553, was its ægis and was constantly invoked. This was addressed to all the courts and judicial officers of the land and affirmed, in the most positive terms, the sole and exclusive jurisdiction of the Inquisition in all matters within its competence, civil or criminal, concerning the faith or confiscations—and faith was a convenient term covering the impeding of the Inquisition in all that it wanted to do. Philip recited that repeated cédulas of Ferdinand and Isabella and of Charles V had asserted this and now he reaffirmed and enforced it. No appeals from its tribunals were to be entertained, for the only appeal lay to the Suprema, which would redress any wrong, for it, by delegation from the crown and the Holy See, had exclusive cognizance of such matters. If therefore anything concerning the Inquisition should be brought before them they must decline to entertain it and must refer it back to the Holy Office.[852]
The Inquisition was not content to enjoy these favors as a revocable grace from the crown but, in a consulta of December 22, 1634, it advanced the claim that this decree was a bargain or compact between two powers which could not be in any way modified without mutual consent.[853] This was emphasized in a printed argument in 1642, asserting that that transaction could only become of binding force by the consent of both parties—the king and the inquisitor-general—and the king had no power to change it of his own motion, as it was an agreement. Even were it admitted to be a concession granted by the crown, this would make no difference, for a privilege conceded to one who is not a subject (as the Inquisition in the present case) and accepted by the latter becomes a contract which the prince cannot revoke.[854]
EFFORTS AT INDEPENDENCE
We shall see hereafter the use made of this by the Inquisition in its daily quarrels with all the other jurisdictions, but a single case may be cited here to indicate how it utilized this position to render itself virtually independent. There was a long-standing debate over canonries in the churches of Antequera, Málaga and the Canaries, which it claimed to be suppressed for its benefit under the brief of January 7, 1559, but which the royal Camara asserted to belong to the patronage of the king, whose rights of appointment were not curtailed by the brief. A suit on the subject, commenced in 1562, was not yet decided when, about 1611, the king filled vacancies in Málaga and the Canaries. This provoked a discussion, during which, without awaiting settlement, the inquisitors excommunicated the appointees—and an inquisitorial excommunication could be removed only by him who had fulminated it, by the inquisitor-general or by the pope. In 1611 the king ordered the appointees to be absolved and mandates signed by him to that effect were addressed to the inquisitors of Málaga and the Canaries. The Suprema complained loudly of this as an unheard of violation of the rights of the Holy Office and refused obedience. In 1612 it declared that, when the appointees abandoned the prebends which they had usurped, they should be absolved and not before. On February 12th, in a consulta to the king, it argued that its power had always been so great and so independent of all other bodies in the State that the kings had never allowed them to interfere with it, directly or indirectly; it determined for itself everything relating to itself, consulting only with the king and permitting no interference of any kind. Its determination prevailed over the weakness of the king who ordered the Camara to desist from its pretensions and not to despoil the Holy Office.[855]
These somewhat audacious assertions of independence were chiefly stimulated by the perpetual quarrels arising from the exclusive jurisdiction, civil and criminal, exercised by the Inquisition over its thousands of employees and familiars and their families, which kept the land in confusion. This is a subject which will require detailed consideration hereafter and is only referred to here because of its development into the exaggerated pretensions of the Inquisition to emancipate itself from all control. When Ferdinand granted this fuero it was understood on all hands to be a special deputation of the royal jurisdiction and as such liable at any time to modification or revocation. Ferdinand himself, in a cédula of August 18, 1501, alluded to it as such—the inquisitors enjoyed it just as the corregidors did.[856] So, in the Concordia of Castile, in 1553, defining the extent of this jurisdiction, the inquisitors are specially described as holding it from the king, and Philip II, Philip III and Philip IV repeatedly alluded to it as held during the royal pleasure.[857] There was no thought of disputing this until the seventeenth century was well advanced. The Suprema itself, in papers of 1609, 1619, 1637 and 1639 freely admitted that its temporal jurisdiction was a grant from the king, while its spiritual was a grant from the pope.[858]
Apparently the earliest departure from this universally conceded position was made, in 1623, by Portocarrero in an argument on a clash of jurisdictions in Majorca, wherein he sought to prove that the civil and criminal jurisdiction of the Inquisition over its subordinates was ecclesiastical and derived from the pope.[859] About the same time, in an official paper, a similar claim was advanced, based on the papal briefs authorizing Torquemada and his successors to appoint, dismiss and punish their subordinates.[860] These were mere speculations and attracted no attention at the time. We have just seen that as late as 1639 the Suprema made no claims of the kind but two years later, in 1641, it suddenly adopted them in the most offensive fashion. There was a competencia, or conflict of jurisdiction, between the tribunal of Valladolid and the chancillería or high royal court; the Council of Castile had occasion to present several consultas to the king, in one of which it said that the jurisdiction exercised in the name of the king by the Inquisition was temporal, secular and precarious and could not be defended by excommunication. Thereupon the Suprema assembled its theologians who pronounced these propositions to be false, rash and akin to heretical error; armed with this opinion the fiscal, or prosecuting officer, accused the whole Council of Castile, demanded that its consulta be suppressed and that its authors be prosecuted. Theoretically there was nothing to prevent such action, which would
