The old rule remained in force forbidding the advocate to defend an impenitent heretic. It made no difference of course in the result, but still permission to do so would have saved appearances. Such cases occasionally occurred, like that of Benito Peñas at Toledo in 1641, a harmless lunatic with some vague speculative heresies. His advocate, Juan Díaz Suelto, after a conference in which his client obstinately rejected his advice to forsake his errors and beg for mercy, reported that his efforts had been in vain, so that it was necessary for him to abandon the defence, in order not to incur the censures and other penalties imposed by the papal briefs, and also for the speedier despatch of the case.[130] Even as late as 1753, at Valencia, the same occurred in the trial of a swindling German named Horstmann.[131]
If, even under these shackles, an advocate desired really to defend his client, he was deprived of the means to do so. Originally, as we have seen, the kindred and children were allowed freely to communicate with him, to furnish indispensable assistance and information, and to gather witnesses, and he was also supplied with copies of the depositions of the witnesses and other necessary papers. It seems to have been Lucero, the evil inquisitor of Córdova, who changed all this, for the memorials of Jaen and Llerena complain bitterly of such denial of justice, rendering nugatory all the means of defence, and depriving the kindred of all knowledge of the nature of the accusation.[132] It expedited business however and facilitated conviction, and its usefulness overcame all scruples. In 1522 Cardinal Adrian forbade all communication between the advocate and the children or kinsmen of the accused, and this prohibition was repeated until it became the invariable rule. In the same spirit, the only document, that he was allowed to have, was a copy of the publication of evidence, which was a very different thing from the original depositions. To repress all initiative on his part he was prohibited from putting forward any defence save what the accused might suggest, in their open consultations in the audience-chamber, or to call for any witnesses whom the latter did not name, and the inquisitors were instructed to punish any infractions of this rule because they were troublesome and impeded the course of business.[133] If an advocate was suspected of undue zeal, the inquisitors had a right to interrogate him as to the measures taken for the defence, the sources of his information and other details; the defence in every way was obliged to play _cartes sur table_, while the fiscal's hand was carefully guarded, and only such knowledge was permitted as served to confuse and mislead. It would seem scarce likely, under such regulations, that advocates would be guilty of really assisting their clients, but to guard against such possible derelictions of duty, inspectors were ordered, when visiting tribunals, to inquire whether they defend the accused "maliciously" and employ cavils for delay and finally, whether or not they are necessary.[134]