The Roman Inquisition. Thomas F. Mayer
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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