Читать книгу The Roman Inquisition - Thomas F. Mayer - Страница 11

CHAPTER 4

The Legal Meaning of 1616: The Jurisprudence and Use of Admonitions and Precepts

While the controversy over what if anything happened to Galileo on 26 February 1616 careens into eternity, the legal meaning of that event has received next to no attention.¹ I argued in the last chapter that Galileo received a strongly worded precept, not a charitable admonition, and in this chapter I explain what that imports. Unfortunately, the Roman Inquisition’s understanding of both admonition and precept must be constructed from its practice; there is almost no jurisprudence like that about its trial process.² This chapter first establishes the background of the related concepts of admonition and precept in canon law and then lays out how the Inquisition used them, paying particular attention to those of most relevance to Galileo.

Admonitions

As in the case of precepts, there is a trajectory to the history of monitiones. A device that had originally provided strong protection to a defendant gradually became weaker and weaker. Canonists frequently cited two passages in the Decretum C.2.q.1.c.19 (“Si peccaverit”) and C.12.q.2.c.21 (“Indigne”), but not until the Decretals, especially those originating with Innocent III, did both monitio and various cognates (for example, commonitio and admonitio) and denunciatio evangelica receive extensive attention. It is repeated constantly that a monitio had to be given three times before any further legal action could be taken as C.5.q.2.c.2 had laid down.³ Enrico Da Susa (Hostiensis, † 1271) specified that each occasion required a proportionate number of witnesses.⁴ Innocent IV systematized the position that monitio in some form was always required.⁵ By the middle of the fourteenth century, the number of times the monitio had to be repeated had been reduced to one, except in the case of inferiors admonishing superiors, in which case the rule of three still obtained.⁶ The fourteenth-century canonist Antonio da Budrio († 1408) still usually held out for three no matter what.⁷ The issue of number of repetitions is not of much importance to Galileo. Another point of general agreement was that monitio was equivalent to a citation; the reason it had to be repeated was to be sure the accused knew he was on the point of being charged.⁸ Right from the first in notorious cases, it was not required at all, and a judge could always act solely on the basis of reputation, publica fama. Anyone with knowledge of the fact was obliged to report it to the court. A private warning ceased to be an option once the deed became public.⁹

Monitio and denunciation were closely connected. There were four kinds of denunciation, as Domenico da San Gimignano (ca. 1375–1424) summarized the views of Giovanni d’Andrea: evangelical, judicial, canonical, and “regular.”¹⁰ The first, the kind of interest here, pertained to a prelate in the first instance, but anyone could do it and to anyone. The only witness needed was the person being warned.¹¹ That obviously guaranteed (or nearly so) secrecy. Notorious cases, on the other hand, required denunciatio judicialis instead.¹² Antonio da Budrio wrote one of the most detailed discussions of evangelical denunciation in his commentary on Innocent III’s decretal Novit [X.2.1.13], De denunciatione evangelica (On evangelical denunciation) as the rubric called it, to which other lawyers frequently referred. Novit laid down that “manifest” crimes required denunciation to a judge followed by regular process. Such a denunciation demanded a precedent monitio. Da Budrio followed D’Andrea’s quadripartite division of denunciation.¹³ The first three—judicial, canonical, regular—were relatively straightforward and applied respectively if roughly, to anyone (but especially the laity), to the clergy, and to those under religious obedience (monks, nuns, friars, and the like). The last, which Da Budrio assimilated to fraterna correctio, was the least lawlike and consquently hardest to understand. The biggest issue was whether denunciation involved an order also called a precept or involved a counsel instead, a less binding piece of advice. Da Budrio took the position that any precept from a prelate to his subordinate was ipso facto an order if not necessarily a matter of sin, although violating it was, a point of great importance to Galileo. This rather positivist move helped him to collapse the first three kinds of denunciation. It also made the last more complicated. He noted three cases when fraterna correctio could be omitted: when the merits of the case allowed it, when it was charitable to do so, and, most interesting, when the prelate feared worse. Evangelical denunciation dealt with hidden sins, since once they became public there was no point in warning the perpetrator—he had fallen into the hands of the law. Heresy especially was not subject to this procedure unless it was certain that using it would produce instant amendment. Besides, given the imminent danger posed by heresy, there was usually no time for the two monitiones or warnings absolutely required by Novit before proceeding to evangelical denunciation. If they had not been given, the case—except for heresy—could not proceed to further remedies of any kind.

The rules were different when evangelical denunciation was applied. The first warning was proved merely by the act itself, while the second needed at least one witness in addition to the person being warned. That witness could be anyone not a criminal. The whole point of an evangelical denunciation was to keep the offense secret and induce penance in the offender. Its nearest relative, a canonical denunciation, by contrast, despite also requiring warnings, was meant to force correction. Therefore an evangelical denunciation, unlike the other three, should not lead to judicial proceedings. Judicial denunciation differed from evangelical in that, while both aimed to correct sin, any of the three judicial kinds also demanded restitution. Were that distinction lost, secular jurisdiction would disappear. Da Budrio noted that there were those who said that an evangelical denunciation could have no place where a legal remedy existed.

Relying on the well-established principle that the church did not deal with hidden acts, Da Budrio argued that secrecy was of the essence of an evangelical admonition. Ergo, it should not (but might?) lead to a sentence, since it was not a judicial act. But a charitable admonition was not the only private kind.¹⁴ A judicial one could also be given in that way. A charitable monitio had as its sole object the correction of sin, while a private judicial admonition went farther and demanded restitution. Thus arose another distinction. While both led to denial of the sacraments, a judicial (or canonical) admonition did so through excommunication and the force of law, while a charitable admonition took effect only through a sort of shunning. Evangelical admonition had no precise judicial form, since it was “as if in the penitential forum” (“cum sit fori poenitentialis”), while a judicial admonition necessarily gave rise to legal process. Any kind of sin could be subject to evangelical admonition, while only certain ones (Da Budrio meant crimes, public sins) could fall under judicial admonition. If a judge administered such, then his act could serve as a citation depending on the circumstances.¹⁵

Da Budrio’s fellow fourteenth-century jurist Henri de Bohic had gone further, coming close to collapsing any distinction between an admonition and a precept. He observed that some thought that correctio charitativa was both an act of charity and of correction; the second also made it an act of justice. If a prelate denounced a crime “charitably,” his act became a precept. If a layman did so, then it was only a nonbinding counsel. But Bohic did not ultimately accept this view, following Da Susa and Uguccio to conclude that any admonition, no matter by whom administered, constituted a precept, with coercive force. The great fifteenth-century civilian Paolo Da Castro in several places assimilated a judge’s monitio to a precept.¹⁶ Even better, in the parlance of the papal secretariat of breves in Galileo’s day, monitio and praeceptum were synonymous.¹⁷

A popular manual summarized the situation at the end of the fifteenth century.¹⁸ The Repertorium inquisitorum maintained that an evangelica monitio should always precede any denunciation (citing “Si peccaverit” and “Novit”) except in public cases or those posing an imminent danger. Two notes added by one of the later editors are more interesting. The first said “a judge must give a charitable admonition to the accused [denuncianti (sic)]” and the second after a slew of classical citations about monitio as an act of persuasion drew the conclusion that “a simple admonition does not obligate the person warned.”¹⁹ Thus it could under no circumstances give rise to judicial process.

The key fact in interpreting any monitio is whether the act to which it applied had remained private or whether it had become public, “notorious” (less significant was whether it was corrigible). The procedure Francesco Beretta thinks was applied in Galileo’s case, denunciatio evangelica, was strictly private. Had there been any doubt up to the point when Tommaso Caccini—along with a number of other Dominicans—denounced Galileo publicly in Florence, thereafter it became notorious that he held Copernican ideas. In the wake of Caccini’s actions, a “charitable admonition” leading to a denunciatio evangelica would have served no purpose, even if his fellow Dominican Niccolò Lorini claimed that was all he wanted when he also reported Galileo privately to one of the senior Inquisitors.²⁰ But both Caccini in testimony to the Inquisition in Rome and Lorini in his letter stressed Galileo’s mala fama. An evangelical denunciation at that point would indeed have represented especially kind treatment, but it would have made legal nonsense and been completely useless in any subsequent proceedings. Nor does the preface to the Dialogue on the Two Chief World Systems alleged by Beretta prove that Galileo received a monitio. As the sequel in 1633 shows, Galileo needed to maintain the purity of his intention as “witness of pure truth” to escape the possibility of conviction on one of the more severe grades of heresy. Besides, according to Sigismondo Scaccia, “customarily” (de consuetudine) evangelical denunciation had passed out of usage, since all Christians were bound to denounce heresy.²¹ Furthermore, of the nearly five hundred monitiones recorded in the Inquisition’s decree registers, none are qualified as “charitable.”

The case could be made out on these grounds, together with Da Budrio’s observation that a single citation in person had the effect of a threefold one by edict “to the church or [suspect’s] house” (“ad ecclesiam vel domum”), that is, a broadcast citation, that the Inquisition had designed a procedure to leave Galileo no wiggle room.²² Since he had been personally cited by either monitio or precept or both, he could not possibly pretend ignorance. Any subsequent mention of Copernicus would ipso facto condemn him. Thus it seems unlikely that Galileo got only a “charitable admonition” or, if he did, that the majority of jurists were prepared to make that nearly equivalent to a judicial order, the precept he also received.

One final argument precludes the possibility that Galileo received only a charitable admonition. It turns on a single word in the minute of his precept, constitutus. It indicates a similar change in the legal status of the person being given the precept as that a witness underwent when being sworn in, which in turn means the proceeding was judicial, not even extrajudicial, certainly not prejudicial.²³

The principle that a trial had to begin with a formal citation including the charges did not extend to the Inquisition, which never informed a suspect of the accusations against him or her.²⁴ It also had much looser rules than other courts about what constituted a citation. It could take the form of a verbal invitation or—more important for us—a precept.²⁵ By seeing that Galileo got both a warning and a precept, Paul V took no chances that he could wriggle out of papal clutches. Roberto Bellarmino gladly helped, acting on behalf of both pope and Inquisition in summoning Galileo. Paul and Bellarmino could be excused if they were somewhat confused about exactly what to do. The lawyers had not achieved much more clarity. But it does appear that Bellarmino had already opened formal proceedings against Galileo before the precept was delivered. One way or the other, Galileo was, and remained, in trouble.

The Jurisprudence of Precepts Among the Medieval Civilians

We must start with a conceptual clarification. In a wild oversimplification, precept in canon law has two basic meanings that have a vague family resemblance, but neither of which does much to clarify the other. On the one hand, there is praeceptum as commandment, the term used in Latin for the Decalogue, a permanent element of divine law. On the other hand, there is precept in the sense of a procedural device, which may or may not be or become a permanent order. While the second has elements, sometimes strong elements, of the first, the first may have nothing at all to do with the second. That precepts have in modern canon law become almost (but not quite) exclusively penal, a permanent sentence handed down in the wake of an infraction, further helps set up the expectation that they always meant more nearly commandment than a possibly temporary maneuver without moral content. Precept belongs in a complicated conceptual field, stretching from mandates to sentences, from citation to monitions, the meanings of which shift depending where and in what kind of process they appear. In order to understand Galileo’s precept, we shall have to try to define it as well as may be in a constantly changing relationship to these ideas and others. It helps to conceive of precept as a dialectical term, stretching from permanent to temporary and from utterly authoritative command to mere procedural device.

Although precepts of various kinds and with various meanings appear fairly frequently in one of the principal sources of canon law, Justinian’s Code, Roman jurists and their medieval civilian successors never gave much systematic attention to them. The most important postglossators, especially Azo and Accursius, said nothing, and their later medieval successors barely mentioned them. A survey of the commentaries of three representative and, in their day, highly regarded civilians, Bartolo Da Sassoferrato (1313–1357), Paolo Da Castro († 1441), and Giason Del Maino (about a half-century later) produces almost no results. Of the approximately eighty-five places in the Digest and Code on which the three might have seized, Bartolo discussed by far the most, while Paolo and Giason commented on only three or four each.²⁶ All three treated precepts as a procedural issue, reducing them almost entirely to those issued by trial judges. For our purposes, Bartolo’s most important passage draws on his contemporary Cino da Pistoia (1270–1336/37) who, according to Pietro D’Ancarano, created an important distinction between “a precept, a decree, and a definitive or interlocutory sentence.” The first was implicitly parallel to the last and came before a case proceeded to litis contestatio, the formal laying of claim and counterclaim in a civil suit or of charges in a criminal trial. Pietro further defined an interlocutory sentence as one made by a judge ex officio and incidental to a case.²⁷ Bartolo agreed, calling such a precept an “interlocutory sentence,” that is, a temporary, procedural, or administrative move.²⁸ Bartolo also maintained that a judge’s precept lasted until he was removed from office unless it was against public utility; two additiones possibly misinterpreted Bartolo as arguing against the opinion that assimilated such a precept to a mandate that expired with the mandater’s death and therefore implicitly said he thought a judge’s precept was permanent. In support, the author of the second additio cited the canonist Panormitanus (Niccolò De’ Tudeschi).²⁹ Bartolo argued that a precept issued without regard to due process (ordo iudiciarius), especially causa cognitionis and citation, could be revoked.³⁰ He also raised the possibility that a precept “has the force of a certain citation,” although he appeared to reject it in the case of an order to pay issued before sentence.³¹ Lanfranco Da Oriano († 1488), a professor at Padua, agreed, asking whether a precept was valid “without a precedent citation” (nulla praecedente citatione) and replied that it was not, citing as proof God’s citation of Adam.³²

Paolo and Giason largely agreed with Bartolo, usually likening a judge’s precept to an interlocutory sentence. As Paolo put the point succinctly, “a judge’s precept is not a definitive but [rather] interlocutory sentence.”³³ They also tried on the one hand to distinguish them from citations, consilia (advice or legal opinions) and other judicial actions, and on the other to assimilate them to concepts like mandate.³⁴ In fact, Paolo defined a mandate issued by a superior “with power” as a precept.³⁵ Paolo nearly followed Bartolo when he argued that a precept, specifically to pay, could not initiate ordinary judicial process.³⁶ Giason in addition discussed precepts as expressing a testator’s wishes, probably the most common use in Justinian’s law book but irrelevant here. The only significant point in his discussion is that he [mis]quoted a canonist, Francesco Zabarella, on a precept’s binding force while correctly citing Guido de Baysio’s triad of consilium-mandatum-praeceptum (see below).³⁷ Although it is impossible to predict where a given legist or canonist might choose to comment on a particular term and I cannot pretend to have read all twenty volumes of these two commentaries, that the canonists picked up this handful of citations but little else from either author suggests that this is the sum total of what they said.³⁸