The legates of Pope Honorius were empowered to introduce the canonical and imperial legislation into the statutes of the Italian cities, which hitherto had not been at all anxious to take any measures whatever against heretics. They succeeded in Bergamo, Piacenza, and Mantua in 1221; and in Brescia in 1225. In 1226, the emperor himself ordered the podestà of Pavia to banish all heretics from the city limits. About the year 1230, therefore, it was the generally accepted law throughout all Italy (recall what we have said above about Faenza, Florence, etc.) to banish all heretics, confiscate their property, and demolish their houses.
Two years had hardly elapsed when, through the joint efforts of Frederic II and Gregory IX, the death penalty of the stake was substituted for banishment; Guala, a Dominican, seems to leave been the prime mover in bringing about this change.
Frederic II, influenced by the jurists who were reviving the old Roman law, prolmulgated a law for Lombardy in 1224, which condemned heretics to the stake, or at least to have their tongues cut out.[1] This penalty of the stake was common—if not legal—in Germany. For instance, we read of the people of Strasburg burning about eighty heretics about the year 1212[2], and we could easily cite other similar executions.[3] The emperor, therefore, merely brought the use of the stake from Germany into Italy. Indeed it is very doubtful whether this law was in operation before 1230.
[1] A Constitution sent to the Archbishop of Magdeburg, in the Mon. Germ., Leges, sect. iv, vol. ii, p. 126. [2] Annales Marbacenses, ad ann. 1215, in the Mon. Germ. SS., vol. xvii, p. 174. . [3] Cf. Julien Havet, op. cit., pp. 143, 144.
But in that year, Guala, the Dominican, who had become Bishop of Brescia, used his authority to enact for his episcopal city the most severe laws against heresy. The podestà of the city had to swear that he would prosecute heretics as Manicheans and traitors, according to both the canon and the civil law, especially in view of Frederic's law of 1224. Innocent III's comparison between heretics and traitors, and between the Cathari and the Manicheans, now bore fruit. Traitors deserved the death penalty, while the old Roman law sent the Manicheans to the stake; accordingly Guala maintained that all heretics deserved the stake.
Pope Gregory IX adopted this stern attitude, probably under the influence of the Bishop of Brescia, with whom he was in frequent correspondence.[1] The imperial law of 1224 was inscribed in 1230 or 1231 upon the papal register, where it figures as number 103 of the fourth year of Gregory's pontificate. The Pope then tried to enforce it, beginning with the city of Rome. He enacted a law in February, 1231, ordering, as the Council of Toulouse had done in 1229, heretics condemned by the Church to be handed over to the secular arm, to receive the punishment they deserved, animadversio debita. All who abjured and accepted a fitting penance were to be imprisoned for life, without prejudice to the other penalties for heresy, such as confiscation.[2]
[1] Gregory IX was four years Pope before he enacted these new laws.
[2] Cap. ii, Mon. Germ., Leges, sect. iv, vol. ii, p. 196.
About the same time, Annibale, the Senator of Rome, established the new jurisprudence of the Church in the eternal city. Every year, on taking office, the Senator was to banish (diffidare) all heretics. All who refused to leave the city were, eight days after their condemnation, to receive the punishment they deserved. The penalty, animadversio debita, is not specified, as if every one knew what was meant.
Inasmuch as reluctant heretics were imprisoned for life, it seems certain that the severer penalty reserved for obstinate heretics must have been the death penalty of the stake, for that was the mode of punishment decreed by the imperial law of 1224, which had just been copied on the registers of the papal chancery. But we are not left to mere conjecture. In February, 1231, a number of Patarins were arrested in Rome; those who refused to abjure were sent to the stake, while those who did abjure were sent to Monte Cassino and Cava to do penance. This case tells us instantly how we are to interpret the animadversio debita of contemporary documents.