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.