Article XVI

It being held that the publication of the names of witnesses who depone upon the crime of heresy might result in great harm and danger to the persons and property of the said witnesses—since it is known that many have been wounded and killed by heretics—it is resolved that the accused shall not be supplied with a copy of the depositions against him, but that he shall be informed of what is declared in them, whilst such circumstances as might lead to the identification of the deponents shall be withheld.

But the inquisitors must, when proof has been obtained from the examination of the witnesses, publish these depositions, withholding always the names and such circumstances as might enable the accused to learn the identity of the witnesses; and the inquisitors may give the accused a copy of the publication in such form [i.e. truncated] if he requires it.

If the accused should demand the services of an advocate, he shall be supplied. The advocate must make formal oath that he will faithfully assist the accused, but that if at any stage of the pleadings he shall realize that justice is not on his side, he shall at once cease to assist the delinquent and shall inform the inquisitors of the circumstance.

The accused shall pay out of his own property, if he have any, the services of the advocate; if he have no property, then the advocate shall be paid out of other confiscations, such being the pleasure of their Highnesses.

It is extremely doubtful if a more flagrant departure from all the laws of equity would be possible than that which is embodied in Torquemada’s enactment on the subject of witnesses.

The notion of an accused hearing nothing of what is deposed against him, of his not even being informed of the full extent of such depositions nor yet confronted with his accusers, is beyond a doubt one of the most monstrously unjust features of this tribunal. And by taking the fullest advantage of that enactment and reducing the proceedings to a secrecy such as was never known in any court, the inquisitors were able to inspire a terror which was even greater than that occasioned by the fires they fed with human fuel at their frequent Autos.

Torquemada based this enactment upon the caution laid down by Eymeric on the score of divulging the names of witnesses. But Eymeric went no further than to say that these names should be suppressed where a possibility of danger to the delators lay in their being divulged. The accused, however, might have the full record of the proceedings read to him, and he might infer for himself who were his accusers. There was no question in Eymeric of any truncations.

Torquemada’s aim is perfectly clear. It was not based, as is said in the article, upon concern for any danger that the delators might incur. For, after all, it shall be made plain before we conclude the survey of inquisitorial jurisprudence, that the wounding or even the death of those witnesses would be regarded (professedly, at least) as an enviable thing; they would be suffering for the Faith, and thus qualifying for the immortal crown of martyrdom. Rather was Torquemada’s object to remove all fear that might trammel delators and stifle delations. The delator must be protected solely to the end that other delators might come forward with confidence to inform against secret heretics and apostates, so that the activities of the Holy Office should suffer no curtailment.

Trasmiera, a later inquisitor, in the course of an eulogium of secrecy, speaks of it as “the pole upon which the government of the Inquisition is balanced, calling for the veneration of the faithful; it facilitates the delations of witnesses, and it is the support and foundation of this tribunal; once deprived of it, the architecture of the edifice must undoubtedly give way.”89

The clause relating to advocates is founded upon the ancient ecclesiastical law which forbade an advocate to plead for heretics. His being enlisted under the present clause would clearly serve to increase the peril of the accused.