The Inquisition / A Critical and Historical Study of the Coercive Power of the Church

by E. Vacandard

CHAPTER IV FOURTH PERIOD FROM GRATIAN TO INNOCENT III THE INFLUENCE OF THE CANON LAW, AND THE REVIVAL OF THE ROMAN LAW

THE development of the Canon law and the revival of the Roman law could not but exercise a great influence upon the minds of princes and churchmen with regard to the suppression of heresy; in fact, they were the cause of a legislation of persecution, which was adopted by every country of Christendom.

In the beginning of this period, which we date from Gratian,[1] the prosecution of heresy was still carried on, in a more or less irregular and arbitrary fashion, according to the caprice of the reigning sovereign, or the hasty violence of the populace. But from this time forward we shall see it carried on in the name of both the canon and the civil law: secundum canonicas et legitimas sanctiones, as a Council of Avignon puts it.[2]

[1] The Decree of Gratian was written about 1140.

[2] This council was held in 1209, d'Achery, Spicilegium, in-fol., vol. i, p. 704, col. 1.

In Germany and France, especially in northern France, the usual punishment was the stake. We need not say much of England, for heresy seems to have made but one visit there in 1166. In 1160, a German prince, whose name is unknown, had several Cathari beheaded. Others were burned at Cologne in 1163. The execution of the heretics condemned at Vezelai by the Abbot of Vezelai and several bishops, forms quite a dramatic picture.

When the heretics had been condemned, the Abbot, addressing the crowd, said "My brethren, what punishment should be inflicted upon those who refuse to be converted?" All replied: "Burn them." "Burn them." Their wishes were carried out. Two abjured their heresy, and were pardoned, the other seven perished at the stake.[1]

[1] _Hugo Pictav., _Historia Vezeliacensis monasterii, lib. iv, ad. finem, Hist. des Gaules, vol. xii, pp. 343-344.

Philip, Count of Flanders, was particularly cruel in prosecuting heretics.[1] He had an able auxiliary also in the Archbishop of Rheims, Guillaume aux Blanches-Mains. The chronicle of Anchin tells us that they sent to the stake a great many nobles and people, clerics, knights, peasants, young girls, married women, and widows, whose property they confiscated and shared between them.[2] This occurred in 1183. Some years before, Archbishop Guillaume and his council had sent two heretical women to the stake.[3]

[1] Raoul de Coggeshall, in Rerum Britann. medii ævi Scriptores, ed. Stevenson, p. 122.

[2] Sigeberti, Continuatio Aquicinctina, ad. ann. 1183, in the Mon. Germ. SS., vol. vi, p. 421.

[3] Raoul de Coggeshall, loc. cit.; Hist. des Gaules, vol. xviii, p. 92.

Hugh, Bishop of Auxerre (1183-1206), prosecuted the neo-Manicheans with equal severity; he confiscated the property of some, banished others, and sent several to the stake.

The reign of Philip Augustus was marked by many executions. Eight Cathari were sent to the stake at Troyes in 1200, one at Nevers in 1201, and several others at Braisne-sur-Vesle in 1204. A most famous case was the condemnation of the followers of the heretic, Amaury de Beynes. "Priests, clerics, men and women belonging to the sect, were brought before a council at Paris; they were condemned and handed over to the secular court of King Philip." The king was absent at the time. On his return he had them all burned outside the walls of the city.

In 1163 a council of Tours enacted a decree fixing the punishment of heresy. Of course it had in view chiefly the Cathari of Toulouse and Gascony: "If these wretches are captured," it says, "the Catholic princes are to imprison them and confiscate their property."[1]

[1] Can. 4, Labbe, Concilia, vol. x, col. 1419.

This canon was applied probably for the first time at Toulouse in 1178. The Bishop began proceedings against several heretics, among them a rich noble named Pierre Mauran, who was summoned before his tribunal, and condemned to make a pilgrimage to the Holy Land. His property was confiscated, although later on when he professed repentance it was restored to him, on condition that he dismantle the towers of his castles, and pay the Count of Toulouse a fine of five hundred pounds of silver.

In this meantime the Cathari increased with alarming rapidity throughout this region. Count Raymond V (1148-1194), wishing to strike terror into them, enacted a law which decreed the confiscation of their property, and death. The people of Toulouse quoted this law later on in a letter to King Pedro of Aragon to justify their sending heretics to the stake, and when the followers of Simon de Montfort arrived in southern France, in 1209, they followed the example of Count Raymond by sending heretics to the stake everywhere they went.

The authenticity of this law has been questioned, on account of its unheard-of severity. But Pedro II, King of Aragon and Count of Barcelona, enacted a law in 1197 which was just as terrible. He banished the Waldenses and all other heretics from his dominions, ordering them to depart before Passion Sunday of the following year (March 23, 1198). After that day, every heretic found in the kingdom or the county was to be sent to the stake, and his property confiscated. It is worthy of remark, that in the king's mind the stake was merely a subsidiary penalty.

In enacting this severe law, Pedro of Aragon declared that he was moved by zeal for the public welfare, and "had simply obeyed the canons of the Holy Roman Church." With the exception of the death penalty by the stake, his reference to the canon law is perfectly accurate. Pope Alexander III, who had been present at the Council of Tours in 1163, renewed, at the Lateran Council in 1179, the decrees already enacted against the heretics of central France. He considered the Cathari, the Brabançons, etc., disturbers of the public welfare, and therefore called upon the princes to protect by force of arms their Christian subjects against the outrages of these heretics. The princes were to imprison all heretics and confiscate their property. The Pope granted indulgences to all who carried on this pious work.

In 1184, Pope Lucius III, in union with the Emperor Frederic Barbarossa, adopted at Verona still more vigorous measures. Heretics were to be excommunicated, and then handed over to the secular arm, which was to inflict upon them the punishment they deserved (animadversio debita).[1] The Emperor decreed the imperial ban against them.

[1] Canon 27, inserted in the Decretals of Gregory IX, lib. v, tit. vii, De Hæreticis, cap. ix.

This imperial ban was, as Ficker has pointed out, a very severe penalty in Italy; for it comprised banishment, the confiscation of the property, and the destruction of the houses of the condemned, public infamy, the inability to hold public office, etc. This is beyond question the penalty the King of Aragon alluded to in his enactment. The penalty of the stake which he added, although in conformity with the Roman law, was an innovation.

The pontificate of Innocent III, which began in 1198, marks a pause in the development of the Church's penal legislation against heresy. Despite his prodigious activity, this Pope never dreamt of enacting new laws, but did his best to enforce the laws then in vogue, and to stimulate the zeal of both princes and magistrates in the suppression of heresy.

Hardly had he ascended the pontifical throne when he sent legates to southern France, and wrote urgent letters full of apostolic zeal to the Archbishops of Auch and Aix, the Bishop of Narbonne, and the King of France. These letters, as well as his instructions to the legates, are similar in tone: "Use against heretics the spiritual sword of excommunication, and if this does not prove effective, use the material sword. The civil laws decree banishment and confiscation; see that they are carried out."[1]

[1] Letters of Innocent III in Migne, P.L., vol. ccxiv-ccxvi.

At this time the Cathari were living not only in the cities of Languedoc and Provence, but some had even entered the papal States, e.g., at Orvieto and Viterbo. The Pope himself went to these cities to combat the evil, and at once saw the necessity of enacting special laws against them. They may be read in his letters of March 25, 1199, and September 22, 1207, which form a special code for the use of the princes and the podestà. Heretics were to be branded with infamy; they were forbidden to be electors, to hold public office, to be members of the city councils, to appear in court or testify, to make a will or to receive an inheritance; if officials, all their acts were declared null and void; and finally their property was to be confiscated.

"In the territories subject to our temporal jurisdiction," adds the Pope, "we declare their property confiscated; in other places we order the podestà and the secular princes to do the same, and we desire and command this law enforced under penalty of ecclesiastical censures."[1]

[1] Letter of March 25, 1199, to the magistrates and people of Viterbo; constitution of September 23, 1207, Ep. x, 130.

We are not at all surprised at such drastic measures, when we consider the agreement made by Lucius III with Frederic Barbarossa, at Verona. But we wish to call attention to the reasons that Innocent III adduced to justify his severity, on account of the serious consequences they entailed. "The civil law," says the Pope, "punishes traitors with confiscation of their property and death; it is only out of kindness that the lives of their children are spared. All the more then should we excommunicate and confiscate the property of those who are traitors to the faith of Jesus Christ; for it is an infinitely greater sin to offend the Divine Majesty than to attack the majesty of the sovereign."[1]

[1] Letter of March 25, 1199, to the magistrates of Viterbo, Ep. ii, 1.

Whether this comparison be justified or not, it is certainly most striking. Later on Frederic II and others will quote it to justify their severity.

The Lateran Council in 1215 made the laws of Innocent III canons of the universal Church; it declared all heretics excommunicated, and delivered them over to the State to receive due punishment. This animadversio debita entailed banishment with all its consequences and confiscation. The council also legislated against the abettors of heresy, even if they were princes, and ordered the despoiling of all rulers who neglected to enforce the ecclesiastical law in their domains.[1]

[1] Labbe, Concilia, vol. xi, col. 148-150; Decretales, cap. xiii, De hæreticis, lib. v, tit. vii.

In practice, Innocent III, although very severe towards obdurate heretics, was extremely kind to the ignorant and heretics in good faith. While he banished the Patarins from Viterbo,[1] and razed their houses to the ground, he at the same time protected, against the tyranny of an archpriest of Verona, a society of mystics, the Humiliati, whose orthodoxy was rather doubtful. When, after the massacre of the Albigenses, Pope Innocent was called upon to apply the canon law in the case of Raymond, Count of Toulouse, and to transfer the patrimony of his father to Simon de Montfort, he was the first to draw back from such injustice. Although a framer of severe laws against heresy, he was ready to grant dispensations, when occasion arose.

[1] Gesta Innocentii, cap. cxxiii, Migne, P.L., vol. ccxiv, col. clxi.

We must remember also that the laws he enacted were not at all excessive compared with the strict Roman law, or even with the practice then in vogue in France and Germany. It has been justly said: "The laws and letters of Innocent III never once mention the death penalty for heresy. He merely decrees against them banishment, and the confiscation of their property. When he speaks of having recourse to the secular arm, he means simply the force required to carry out the laws of banishment enacted by his penal code. This code, which seems so pitiless to us, was in reality at that time a great improvement in the treatment of heretics. For its special laws prevented the frequent outbreaks of popular vengeance, which punished not only confessed heretics, but also mere suspects."[1]

[1] Luchaire, Innocent III, et la croisade des Albigeois, pp. 57, 58. Julien Havet also says: "We must in justice say of Innocent III that, if he did bitterly prosecute heretics, and everywhere put them under the ban, he never demanded the infliction of the death penalty. Ficker has brought this out very clearly." L'hérésie et le bras séculier, p. 165, n. 3. For Ficker's view, cf. op. cit., pp. 189-192.

In fact, the development in the methods of suppressing heresy from the eleventh century, ends with Innocent III in a code that was far more kindly than the cruel customs in vogue at the time.

The death penalty of the stake was common in France in the twelfth century, and in the beginning of the thirteenth. Most of the executions were due to the passions of the mob, although the Roman law was in part responsible. Anselm of Lucca and the author of the Panormia (Ivo of Chartres?) had copied word for word the fifth law of the title De Hæreticis of the Justinian code, under the rubric: De edicto imperatorum in damnationem hæreticorum.[1] This law which decreed the death penalty against the Manicheans, seemed strictly applicable to the Cathari, who were regarded at the time as the direct heirs of Manicheism. Gratian, in his Decree, maintained the views of St. Augustine on the penalties of heresy, viz., fine and banishment.[2] But some of his commentators, especially Rufinus, Johannes, Teutonicus, and an anonymous writer whose work is inserted in Huguccio's great Summa of the Decree, declared that impenitent heretics might and even ought to be put to death.

[1] Tanon, op. cit., pp. 453-454.

[2] Decretum, 2 Pars, Causa xxiii, quest. 4, 6, 7.

These different works appeared before the Lateran Council of 1215.[1] They are a good indication of the mind of the time. We may well ask whether the Archbishop of Rheims, the Count of Flanders, Philip Augustus, Raymond of Toulouse, and Pedro of Aragon, who authorized the use of the stake for heretics, did not think they were following the example of the first Christian emperors. We must, however, admit that there is no direct allusion to the early imperial legislation either in their acts or their writings. Probably they were more influenced by the customs of the time than by the written law.

[1] The collection of Anselm of Lucca is prior to 1080. The Panormia was written about the beginning of the twelfth century; the Decree about 1140; the three commentaries were written a little before 1215.

As a matter of fact, Gratian, who with St. Augustine mentioned only fine and banishment as the penalties for heresy, was followed for some time. We learn from Benencasa's Summa of the Decree that heretics were punished not by death, but by banishment and confiscation of their property.[1]

[1] Biblioth. Nation., Ms. 3892, Summa of Benencasa: 41, cap. 23, q. 4, Non invenitur.

The Councils of Tours and Lateran also decreed confiscation, but for
banishment they substituted imprisonment, a penalty unknown to the
Roman law. The Council of Lateran appealed to the authority of St.
Leo the Great, to compel Christian princes to prosecute heresy.[1]

[1] Canon 27, Labbe, Concilia, vol. x, col. 1522; Leonis, Epist. xv, ad Turribium, Migne, Pat. Lat., vol. liv, col. 679-680.

From the time of Lucius III, owing to the influence of the lawyers, the two penalties of banishment and confiscation prevailed. Innocent III extended them to the universal Church.

This was undoubtedly a severer penal legislation than that of the preceding age. But, on the other hand, it was an effective barrier against the infliction of the death penalty, which had become so common in many parts of Christendom.

Besides, during this period, the Church used vigorous measures only against obdurate heretics, who were also disturbers of the public peace.[1] They alone were handed over to the secular arm; if they abjured their heresy, they were at once pardoned, provided they freely accepted the penance imposed upon them.[2] This kind treatment, it was true, was not to last. It, however, deserves special notice, for the honor of those who preached and practiced it.

[1] Innocent III merely condemned to prison in a monastery the heretical abbot of Nevers; cf. letter of June 19, 1199, to a cardinal and a bishop of Paris. Ep. ii, 99.

[2] Cf. Canon 27 of the Lateran Council (1179), which we have quoted above, and which is inserted in the Decretals of Gregory x, cap. ix, De hæreticis, lib. v, tit. vii.