From the National Review
In Elizabethan and Protestant propaganda, the Spanish Empire figured as a threat to all that was good in the world.
A familiar reaction is to accuse someone of behaving like the Spanish Inquisition. As a rhetorical device, it works well. It carries overtones of a thought police, of a tyranny over mind and soul. It conjures up images of dank cellars and sinister monks with red-hot pokers. It is a byword for oppression and abuse dressed up as law.
Yet while any reasonable person would find a lot not to like about the Spanish Inquisition, much of our popular conception of it is the product of Elizabethan propaganda and gothic fiction. There was a concerted effort by northern (mostly Protestant) European kingdoms to paint the Spanish Empire as constitutionally evil; not just a political, religious, and military rival but an existential threat to all that was good in the world. The Inquisition was the poster child for these efforts, which collectively became known as the Black Legend. Julián Juderías, Jose Alvarez-Juno, and other 20th-century historians have done much to unwind the more cartoonish allegations and understand them as the propaganda campaign they were.
In fact, examined simply as a functioning court, the Spanish Inquisition was in many ways ahead of its time and a pioneer of many judicial practices we now take for granted.
Let’s start with the basic legal concept of an “inquisition.” It just
means a court of inquiry in which the judges take the lead in directing proceedings in the pursuit of truth, rather than a prosecution-driven adversarial system. Such courts continue to function in many secular jurisdictions today, and there is, frankly, nothing very sinister about it, though it appears alien to those of us raised on American courtroom dramas.
Because it was a religious court primarily concerned with heresy trials, it has the reputation of being an ecclesiastical thought police run by religious fanatics who trapped innocent laymen with theological technicalities. The Inquisition was actually a reluctant creation of the Church.
When Pope Sixtus IV granted the Spanish Crown the power to erect the Inquisition in 1478, he was responding to a situation in which Ferdinand and Isabella’s newly unified Kingdom of Spain was seeking to impose cultural and religious uniformity on its people. This was the time of the Reconquista; religion and nationalism were inseparable, and the abuses were terrible. The Alhambra Decree of 1492 expelled any Spanish Jew who would not convert to Christianity. Despite a measure of religious freedom promised in the Treaty of Granada (1491), which saw the end of the last emirate on the peninsula, Islam was effectively outlawed. Pogroms and riots were a part of country life. Those who did convert, especially from the Jewish community, lived in fear of denunciation as “secret Jews” and could have their property seized and their lives ruined. The pope hoped, perhaps naïvely, that by getting directly involved, the Church could bring the situation under control and end the frenzied religious denunciations.
Instead, while it did stop the pogroms, the religious authority of the Church was hijacked by the Crown. It took some years before the Church could wrest back control.
Although the institution lasted for centuries, the worst excesses of the Inquisition occurred in these first 30 years, when the Spanish Crown did use it as a means of control and oppression. By 1482, Pope Sixtus had publicly regretted allowing the Inquisition to be set up under state supervision. But the procedures the Inquisition developed to counter its own abuse came to outshine those of any comparable court of the time.
Tomás de Torquemada, a much more nuanced historical figure than the cartoonish portrayal of him suggests, was put in charge of bringing order and justice to the Inquisition, and he was much more interested in imposing good law than good theology.
His regulations for the Inquisition of 1498 mandated that inquisitors (judges) be lawyers by training, rather than theologians, and it was not even a requirement that all judges be priests. Such was the legal, rather than theological, weight of proceedings that, in contrast to other courts of the time and for centuries after, cases of witchcraft were treated as grounds for insanity rather than demonic cooperation.
Popular conception has it that the entire process was fueled by anonymous denunciations and was widely abused for personal score-settling between neighbors and families. There is a lot of truth to that, and the abuse of the Inquisition process by the people led to a huge inflation of cases. But the problems raised by granting initial anonymity to accusers and witnesses were not unmitigated. All accusations went before a panel of expert consultants who determined whether enough proof existed to bring charges. They functioned much like a modern grand jury, which today hears testimony and allegations in secret.
Once the decision was taken to press charges and an arrest was made, the accused had a number of practical and legal advantages over a defendant in a civil court in Spain, or indeed in the supposedly more enlightened governments of northern Europe, including England.
Beginning in 1484, everyone brought before the Inquisition had the right to legal representation, either of his own selection or by court appointment if necessary. This was some 300 years before the Sixth Amendment gave the same right to Americans, and it wasn’t until the Napoleonic Code of 1808 that it came to France. English defendants had to wait until the Prisoner’s Counsel Act of 1836.
The accused were given the opportunity to submit the names of anyone who had a grudge against them or whose testimony could not be relied upon. In one case, a local magistrate submitted the names of all the people he had ever convicted, and the charges against him were dismissed out of hand. The Inquisition followed the canonical procedure of “publishing the acts,” equivalent to discovery in the American system, so that defendants and their lawyers could answer all the evidence laid against them.
This is all well and good for theory, you might think. Maybe the Inquisition had its rules on paper, but the reality was surely a different thing, and how could we possibly know for sure, anyway? In fact, we know exactly what happened in thousands of cases heard by the Inquisition across Spain over hundreds of years. Because it was a serious court, meticulous case files and court records were kept. Libraries in Toledo, Salamanca, and other cities are home to thousands of such case files. In the second half of the 20th century, Henry Kamen and other historians were given access to them. What they discovered changed the scholarly understanding of the Inquisition.
So, what of those dank dungeons and hot pokers? Well, for a start, the jails of the Inquisition were universally known to be hygienic and well maintained. They were neither built nor run as places of punishment. The standard of care that inmates received was high enough that prisoners held by the Crown would often petition to be moved to Inquisition jails. There are recorded cases of criminals committing public heresy with the express purpose of being held and tried by the Inquisition, rather than the secular courts.
But yes, there was torture.
The use of torture by the Spanish Inquisition can be neither excused nor denied, though it can and should be placed in context. Contrary to the lurid allegations of Elizabethan propaganda, there were no hot pokers, no iron maidens.
Three forms of torture were used by the Inquisition: the strapado (hanging by the wrists), toca (waterboarding, essentially), and porto (also known as the wrack). Bad as these all unanswerably are, they are mild compared to what awaited a defendant in England, where you could be crushed to death, as Margaret Clitherow was, unless you halted the torture by entering a plea. It is also impossible to avoid the observation that the methods of the Inquisition would be remarkably familiar to anyone who has heard the phrase “enhanced interrogation.”
But unlike civil jurisdictions, and indeed some modern practices, the Inquisition permitted no risk “to life or limb,” meaning “death or permanent injury.” A physician was on hand to ensure that the procedure was halted if he feared lasting damage might be inflicted. Also unlike other courts, in almost all cases the Inquisition authorized torture to last no longer than two 15-minute sessions, with a day between each, for the prisoner to recover — definitely not a standard more recent practitioners have imposed on themselves.
Moreover, confessions made under torture were inadmissible as evidence. To be of any use, they had to be repeated freely when any threat of further coercion had been removed. You might reasonably ask why bother having torture at all if you cannot use any confession you extract, but this was part of the point: Torture was ubiquitous in courts of the time, and the Inquisition’s use of it, while objectively horrific, was downright progressive when seen in context. The limitations imposed on its use were a means of removing it as a practice. It was a serious leap forward in the legal evolution of Europe, which not so long before had still practiced trial by ordeal.
Similarly, the common impression remains that the Inquisition was a rolling conveyor of death. Using quantitative historical analysis, scholars, most notably Kamen in The Spanish Inquisition: A Historical Revision (now in its fourth edition), estimates the average number of executions from Inquisition trials across Spanish territory in the 16th and 17th centuries at less than three per year: below the rate, by a considerable margin, of any court anywhere else in Europe.
None of this is to say that the Spanish Inquisition is something to be proud of or remembered fondly. But it isn’t paradoxical to conclude that it was also, by the standards of the time, in many ways superior to almost all other courts. Even in the centuries since, we have at times done worse than the Spanish Inquisition — and that is something no one expects.