After this ordeal was passed the advocate was called in and furnished with the publication and the answers of the accused. The two conferred together, under the eye of the inquisitor and pen of the secretary; if the accused rejected the renewed advice of the advocate to confess and discharge his conscience, the plan of defence was concerted. What this was, as a rule, made little difference. When, in 1499, the inquisitors-general felt it necessary to instruct inquisitors that they must pay attention to the defences and exceptions alleged by the accused, it indicates how they were recognized as prosecutors rather than judges. Yet it was freely admitted that, in view of the limitations of the defence, they should be most zealous in considering whatever it presented.[154]
The defence was so perfunctory a routine that the systematic writers mostly dismiss it with the curt observation that its witnesses must be zealous Christians and in no way connected with the defendant. Simancas, however, treats it at greater length, and his enumeration of its possibilities shows how restricted they were. He admits at the start the legal maxim that it is impossible to prove a negative, which was virtually, in most cases, the task imposed on the accused. Then he proceeds to define what the defendant can do. He can call on witnesses to prove his religious character or to disable for enmity the opposing witnesses, or to show that at a certain time or place he did not say what was attributed to him. Then there are general pleas in abatement, extreme youth, second childishness, insanity, drunkenness, thoughtless speech, ignorance, jocularity, the pressure of fear under threats, or intense grief. Or he may recuse the judge, which should be referred to the Suprema and not to arbiters, who cause much delay.[155]
Recusation of a judge was a right recognized in the traditional legislation of Spain.[156] It was admitted in the Inquisition and we have seen, in the cases of Carranza and Villanueva, how little the accused profited thereby, even when nominally successful. It was a recourse practically open only to the powerful or to the trained, at best but a dangerous expedient, and of necessity had to be done at the commencement of a trial. It evidently was not employed often enough for a definite form of procedure to have been provided. The Instructions of 1561 require that, if an inquisitor be recused, he must abandon the case to his colleague; if he has none, or if both are recused, the matter must await the decision of the Suprema.[157] This would indicate that the recused judge retired as a matter of course, but the Carranza and Villanueva cases prove that the objections of the prisoner had to be demonstrated as legitimate and this is further indicated when the troublesome Jesuit, Padre Juan Bautista Poza's extravagant Mariolatry was condemned at Rome and approved in Spain. It took seven years after his _Elucidarium Deiparæ_ had been placed on the Roman Index, in 1628, before the Spanish Inquisition could be compelled by the nuncio to prosecute him for his rebellious defiance. When on trial by the Toledo tribunal, he recused the Inquisitor Cienfuegos; his reasons were examined by the Suprema, which consulted the other inquisitors and the recusation was sustained. How unusual was this proceeding is indicated by the boast of his triumphant brethren that this was one of the remarkable events that had occurred in Spain.[158] Yet an incident in the trial of Fray Luis de Leon shows the advantage taken of any obstacle to prevent recusation. After two and a half years of seclusion in prison from the world, he asked to know the names of the existing inquisitor-general and members of the Suprema, in order that he might recuse any whom he regarded as inimical, yet this elementary piece of information was denied, in spite of repeated applications, in which his counsel joined, showing that the latter was debarred from telling him what was of public notoriety.[159] Strictly speaking, recusation was not a defence but merely a preliminary to it, and its rarity renders it of minor importance.