The Decretales, Its Glossa ordinaria, and HeresyFootnote 1
Building on the work of many scholars over the past 150 years, the history of Western canon law is increasingly well mapped, especially prior to the year 1234. General surveys are at hand, as well as many studies of specific collections, individuals, or topics.Footnote 2 Some scholars, therefore, have termed the current situation as “a renaissance in the study of medieval canon law.”Footnote 3 Pope Gregory IX's Decretalium domini gregorii papae noni compilatio, or Decretales/Liber extra (hereafter Decretales), the first Church law collection that was promulgated by the papacy for universal and exclusive use in 1234 and remained in use until the 1917 Code of Canon Law, has also become a scholarly focus in recent decades.Footnote 4
But one essential text has not gotten its due treatment in this flourishing landscape. Bernard of Parma's Glossa ordinaria/Ordinary Gloss (hereafter Bernard and Glossa) is a full set of legal glosses (that is, legal-commentarial texts composed for canons in canonical collections with explicative and educational purposes) composed between 1234 and 1239 to the Decretales, and continued to be updated in several redactions until Bernard's death in 1266.Footnote 5 Bernard was a canon law magister, papal chaplain, and legal consultant. Much of what we now know about his life came from the Camaldulese abbot and scholar Mauro Sarti (1709–1766). Sarti assumed that Bernard was born in the early thirteenth century. He moved to Bologna to study law, and became a student of the well-known canonist, Master Tancred. Sarti found that Bernard was already called a magister by 1232 in an official Bolognese statue and was mentioned as a papal chaplain and canon in several papal letters from Innocent IV (1247), Alexander IV (1255), and Urban IV (1264), seeking advice regarding local church affairs. Indeed, Bernard in a gloss called himself a Bolognese canon and papal chaplain.Footnote 6 His Glossa consults both Roman law and canonical texts, and incorporates his contemporaries’ commentaries on earlier decretal collections. As a work that became popular immediately after its appearance, it accompanied hundreds of manuscripts and most of the early printings of the Decretales. In fact, there are at least 678 surviving manuscripts of the Decretales, completed or with all five books of the Decretales copied “at least with more or less large parts (mindestens mit mehr oder weniger großen Teilen).”Footnote 7 As medieval theologians embraced the Glossa ordinaria to the Bible, medieval law scholars studied Bernard's Glossa to the Decretales, and trained their students—many of whom would become professional lawyers in ecclesiastical or even secular courts—with it. When the post-Tridentine Catholic Church published in 1582 the so-called Editio Romana version of the Corpus iuris canonici, both to preserve its canonical traditions and to provide authoritative compilations of canon law books for the use of the church officials all over Western Europe and beyond, Bernard's Glossa surrounded the text of the Decretales.
Nonetheless, our understanding of this text—as both an essential canonical-jurisprudential work and a rich resource for medieval institutional, social, and religious history—is far from satisfactory. Further, Bernard's Glossa has not been much studied as a source for church history beyond canon law. This is unfortunate, for its jurisprudence likely reflected or even shaped actual legal practice. Medieval canonists did not compose their works and live their lives in ivory towers. Besides training future lawyers and judges who would be responsible for the operation of ecclesiastical courts and for the solution to innumerous real-life cases, they themselves often had careers that involved legal affairs outside academia. Bernard, for example, as abovementioned, was both a chaplain and judicial consultant to the papacy; Ricardus Anglicus (d. 1242) served multiple times as an officer in court and as a judge-delegate under Pope Innocent III; Hostiensis (d. 1271) and Goffredus Tranensis (d. 1245) ended up as cardinals; Jacobus Albanus (d. c. 1273) served as an advocate before he became a bishop; and Sinibaldus Fliscus once worked as an auditor of the papal curia before he became a cardinal and then Pope Innocent IV (1243–1254).Footnote 8 They heard and judged real-world cases treating both ecclesiastical affairs and civil disputes. Therefore, their writings could be understood as mirrors of the institutional world out of which they emerged. Through investigating the legal concerns and discussions in these texts, we stand better to understand aspects of the medieval Church and the challenges facing society from the perspective of canonists—especially influential ones like Bernard. The examples to follow deal with the topic of heresy.
Histories and historiographies of heresy have been written by generations of scholars.Footnote 9 From the condemnation of the Arianists at the First Council of Nicaea in 325 to the anathematization of various heretics by Pope Gregory IX in 1229, the Christian Church has been no stranger to the practice of recognizing and punishing those it deems heterodox and/or heteroprax within the community. Notably, diverse and sporadic heresies, “most of [which] can be related to the religious temper of the age and the movement for reform that touched all aspects of religious life from 1050 on,”Footnote 10 emerged during the eleventh and especially early twelfth centuries. This age witnessed religious nonconformists such as Peter of Bruys, Henry of Lausanne, Arnold of Brescia, Amalric of Bène, and others, including those “Manichees” noted by Guibert of Nogent at Soissons in 1114.Footnote 11 While it is difficult to systematize and catalogue their heretical characteristics, two particular groups of heretics stood out after the middle of the twelfth century. These were the Cathars/Albigensians and the Waldensians, which held religious beliefs and practices that posed threats to the institutional church. Briefly speaking, the former, with its dualistic theology, special rites such as consolamentum, and hierarchical organization, represents an essentially heterodox, antisacramental, and antisacerdotal institution in the eyes of the Roman church. The latter, on the other hand, poses a challenge to the church and its clerics based on its insistence on apostolic poverty and various radical means to satisfy lay piety, such as the availability of the bible in vernaculars and public preaching by laymen.
Heresy since the twelfth century had been dealt with by a continuously developing legal system, in tangent both with the intellectual trends emerging in the schools and with the institutional development in the papacy. As Edward Peters points out, “The twin movements of dogmatic definition and the papal juridical approach to heretics . . . slowly increased ecclesiastical resistance to heresy and dissent.”Footnote 12 Canon law on heresy transitioned from repeating antique and early-medieval patristic theological/pastoral writings to conciliar and papal decrees that treated contemporary movements. Scholars have long noted the legislative efforts taken by local church authorities and the papacy, which left their prints directly or indirectly in the canonical tradition.Footnote 13 Many of these texts, from the 1184 papal bull Ad abolendam of Pope Lucius III, the Vergentis in senium of Innocent III in 1199, to the Excommunicamus et anathematizamus of Gregory IX in 1229 (X 5.7.15), were codified in the Decretales, and indeed have been well studied by generations of researchers.Footnote 14 Another institutional apparatus that emerged and developed against the heretics during the twelfth and the thirteenth centuries was the heresy inquisitors. The phrase “inquisitors of heretics (inquisitores hereticorum)” emerged as early as 1233 in a text from Count Raymond VII of Toulouse. Several months after the promulgation of the Decretales, Raymond of Peñafort, the editor of this compilation, mentioned “inquisitor constituted by the Apostolic See (inquisitor a sede Apostolica constitutus)” in his instruction on the treatment of heretics. Five years later, the most common designation for medieval heresy inquisitors, that is, “inquisitors of heretical depravity (inquisitores heretice pravitatis),” appeared for the first time in Pope Gregory IX's letter Actore Deo of May 3, 1238.Footnote 15 These inquisitors were bishops, local clerics appointed by bishops, and, especially since the early-thirteenth century, papal appointees that were usually mendicant friars. The consultation manuals composed or used by inquisitors, as well as the inquisitorial records produced by them, have also attracted much modern scholarly attention.Footnote 16
Nonetheless, compared with the legislative or administrative dimension of the story, and despite the heated debates around the very existence of dualist heresy during the past decades,Footnote 17 our understanding of thirteenth-century juridical thinking on the subject of heresy could be further deepened. How did medieval judges and lawyers analyze heresy? What if a pope's regulation on the heretics conflicted with what St. Augustine prescribed against the Donatists? Examining legal writings from the second half of the twelfth and the thirteenth centuries, such as the Glossa, provides sources to deal with such questions.Footnote 18 The following sections, in the first place, will provide an overview of the title on heresy, that is, De haereticis, in the Decretales (= X 5.7) and the Glossa to it. I will then show that the Glossa, compared with the Glossa ordinaria to Gratian's Decretum, offers a new emphasis in the definition of heresy, which not only reflects but also further solidifies the increasingly clear identification of heretics as self-conscious assembly rather than nonconforming individuals in the thirteenth century. The next section will demonstrate that the Glossa embeds mercy in its treatment of heretics: by limiting the scope of the culpable, suggesting to sustain the heretic's life, remaining silent on the use of violence to extract confession, and, last but not least, scrupling about handing over heretics to secular courts. In the end, I will briefly contrast the Glossa, especially its temperance in dealing with heretics, with the contemporary inquisitorial practice and literature.
An Overview of De Haereticis and Its Ordinary Glosses
The Massacre at Béziers happened on July 22, 1209. This first slaughter of heretics during the Albigensian Crusade marks the appearance of the notorious saying, “Kill them all; for the Lord knoweth them that are His (cf. 2 Timothy 2:19)!”Footnote 19 in history, according to Caesarius of Heisterbach. At this point, Bernard was probably still a young boy. His years of studying law at Bologna under the influential canonist Tancred (c. 1185–1236), who composed the Glossae ordinariae to several previous important decretal collections, saw the signing of the Treaty of Paris on April 12, 1229, which ended the twenty-year Albigensian Crusade under Popes Innocent III, Honorius III, and finally Gregory IX. As he was revising his Glossa to the Decretales, hundreds of Cathars, including both perfecti and credentes, were burned at the end of the siege of Montségur on March 16, 1244. These events were part of the backdrop against which the Glossa was produced and gradually updated. Yet, similar to his treatment of other legal topics, Bernard did not mention these specific historical instances in his glosses. However, his numerous comments and allegations—the supporting texts that the Glossa cited from both Roman law and canon law traditions—cited, ranging from St. Augustine's writings against the Donatists to Emperor Frederick II's constitutions against the Cathars and other heretics in the Glossa to the sixteen canons under X 5.7, testify to the importance to him of the subject of heresy in the high medieval legal landscape.
This article examines the section of the Decretales that specifically addresses the issue of heretics: X 5.7 “On Heretics (De haereticis).” X 5.7.1–8 constitute an array of papal rulings for various subjects regarding heresy, ranging from people who do not correct heretics to bishops who provide inheritances to heretics/pagans. Beginning with X 5.7.9, that is, the aforementioned 1184 Ad abolendam from Pope Lucius III, we have a relatively comprehensive and systematic treatment concerning heretics. The canons X 5.7.9–16, from Popes Lucius III, Innocent III, the Fourth Lateran Council, and Pope Gregory IX, are relatively more focused on legislating against contemporary heretical movements.
There are 110 glosses to X 5.7.Footnote 20 The number of glosses of each canon roughly matches the length of that canon, that is, the longer the canon the more points Bernard found to explicate. The length of each gloss, nevertheless, has nothing to do with the length of the canon that it comments on. Thus, the selection of glosses to be analyzed in this article does not depend on the lengths of and the number of allegations, that is, cross-referenced Romano-canonical texts in the glosses, nor does it favor the longer canons and their glosses. Among several possibilities, I have extracted two themes to illustrate the Glossa's judicial thoughts: the definition of heretics and, more importantly, mercy in treating heretics. Glosses are selected as they embody these themes either per se or in their allegations.
Two Glossae ordinariae: A New Emphasis in the Judicial Definition of HeresyFootnote 21
The Glossa offers a clear and detailed definition of heresy in its comment on the third canon of X 5.7, where the word “heretics” is mentioned for the first time in this title. The flexibility of the concept itself, however, requires Bernard to establish some legal definition and to probe implications of heresy since the very beginning, as is seen in the gloss to the first chapter in the title:
X 5.7.1
Pope Stephan to All Bishops.
A person who has doubtsFootnote 22 about the faith is unbelieving (infidelis). Credibility is completely lacking in people who ignore belief in the truth.Footnote 23
One of the continuous issues throughout the Decretales that the Glossa as an educational text treats is the succinctness, often also the vagueness, of the canons. The glosses are, therefore, responsible for both explicating concepts and delving into their implications. The Glossa for canon 1 implies that the person who is infidelis equates with the heretic in the legislation of Roman law. This was decades before Thomas Aquinas in his Summa Theologica straightforwardly claimed that heresy “is a subspecies of unbelief (sub infidelitate continetur).”Footnote 24 However, the matter is not spelled out explicitly, and the medieval law student had to look into the allegations to follow it. The first allegation in the gloss on “about the faith (in fide)”Footnote 25 points the reader to a section in the Justinianic Codex, book one, title five (“Heretics, Manichaeans, and Samaritans”) and a direct definition of heretics: “Under the term heretics . . . are included those who are found to deviate from the doctrine and path of the Catholic Religion [Cod. 1.5.2.1].”Footnote 26 Ruggero Maceratini has briefly summarized the diverse definitions of heresy in Roman law collections, and here, it seems, the gloss precisely picks up “the proper judicial definition (la definizione propriamente giuridica).”Footnote 27
The most comprehensive definition of heresy in the Glossa on this title, however, comes from a gloss to X 5.7.3 (translated in the right column below). Bernard in this gloss heavily relied on the Glossa ordinaria composed between 1210 and 1220 by his master at Bologna, Tancred, to the same decretal (Comp. I. 5.6.3).Footnote 28 At first glance, it seems to demonstrate a shared understanding of the legal definition of haereticus when compared with the equally influential Glossa ordinaria to Gratian's Decretum on the same issue (translated in the left column in Table 1).Footnote 29
Table 1. Definitions of haereticus in the Glossae ordinariae
It is not difficult to observe the similarities between these two ordinary glosses. But more importantly, one should note that while it is “whoever invents a new conjecture (novam opinionem invenit)” is a heretic in the left column, it is “he who fabricates a new sect (confingit novam sectam), or follows a fabricated one” in the right.Footnote 50 Further, both glosses here cite the same allegation from St. Augustine's De utilitate credendi, but apparently they pay attention to different parts of it: Augustine in this text argued that a heretic is a person who either gives birth to or follows false and new opinions.Footnote 51 Moreover, the Glossa to the Decretales in this sense of focusing on sects and followers also, compared with the one to the Decretum, steps further from the thirteenth-century definition of heresy made by influential theologians. Thomas Aquinas in his discussion of heresy and hereticsFootnote 52 largely followed Augustine's definition above. Similarly, Bishop Robert Grosseteste of Lincoln's definition, which was quickly quoted in his contemporary English chronicles, states, “Heresy is an opinion chosen by human faculties, contrary to Holy Scripture, openly held, and pertinaciously defended.”Footnote 53
It is important to note, however, that although the Glossa provided different definitions from those listed above, its emphasis on “new sect,” inherited from Tancred and Laurentius Hispanus (see note 28), echoes specific mention of high medieval heretical groups such as the Cathars in X 5.7.8Footnote 54 and especially in X 5.7.15.Footnote 55 Put simply, the Glossa of the Decretales here reflects its contemporary papal-ecclesiastical concern with heretics through the novel emphasis on the formation of heretical sects: a sense of self-conscious gathering that would remain a key feature of medieval literature on heresy.Footnote 56 Moreover, this set of definitions of heretics would remain influential in the medieval canonical landscape. For instance, it was largely repeated by eminent canonists such as Hostiensis (d. 1271).Footnote 57
Limiting the Scope of the Culpable
The second chapter of the title on heretics in the Decretales consists of a very brief statement that could lead users to an over-zealous expansion of who qualifies as a heretic. The canon reads as follows:
X 5.7.2
Pope Leo.
He who does not recall others from error when he is able, demonstrates that he himself errs.Footnote 58
This canon comes from a letter of Pope Leo I addressing the dualistic Priscillian heresy. However, the historical context or the description of specific issue was completely omitted when this text became a canon in the Decretales. The original letter claims that bishops who do not forbid the possession of apocryphal writings or permit the Priscillian writings to be read in churches are considered heretics. The result of the omission, however, is an imprecise ruling that in the textual context of De haereticis can be interpreted in an extreme manner as “whoever does not correct a heretic is a heretic him/herself.” This would contradict how a heretic is defined in Glos. ord. to X 5.7.3, every heretic, which is translated and discussed above. The Glossa here, relying on Tancred's comment on the same canon, struggles to narrow the scope of the culpable and to dissolve the potential extremity in legal practice.
Glos. ord. to X 5.7.2, does not recall (non revocat)
When one can.. . . But can that pertain to all? I respond: In the case of a crime already committed, only clerics are obligated to reprove (corripere). [See] xxiii. q. iiii. duo ista.Footnote 59 and c. ita plane.Footnote 60 However, anyone is obligated to reprove another privately for a sin about to be committed. [See] infra. e. cum ex iniuncto.Footnote 61, and the arguments [in] xxiii. q. iiii. ipsa pietas.Footnote 62, xxii. q. v. hoc videtur.Footnote 63, xciii. di. diaconi.Footnote 64, supra. de cog. spirituali. tua.Footnote 65, and ii. q. vii. quapropter.Footnote 66 . . . +Tanc.+Footnote 67
The gloss begins with a short but straightforward delimitation of the canon. After asking “[b]ut can it pertain to all?” it proposes a dialectical qualification that essentially indicates not everyone who does not correct other's error errs (or even becomes a heretic). More importantly, an examination of the allegations in this gloss reveals the underlying concern of Tancred (and Bernard, who compiled this gloss into his Glossa) here: mercy. Notably, Ivo of Chartres (d. 1115) in the prologue to his influential Decretum and Panormia, which both Tancred and Bernard possibly were familiar with or even have studied, highlighted the importance of mercy/charity in ecclesiastical jurisprudence.Footnote 68 When claiming that only clerics are obliged to correct others for committed crimes, the gloss invokes two allegations. The first one (C. 23 q. 4 c. 35), ascribed to Augustine, calls for indiscriminate mercy from anyone who is in charge of others—“not only the bishop ruling his people, but also . . . the father ruling his children, the judge ruling his province, the king ruling his nation.”Footnote 69 In the other one (C. 23 q. 4 c. 6), Augustine in his letter to the Donatist bishop Parmenian indicated that if a person without an official function does not correct another's sin, he is not guilty as long as he does not participate or approve the crime; and when the person does have the official responsibility to correct sinners, he should do so “with love (cum dilectione)”Footnote 70 Both allegations selected in the gloss, therefore, support its accentuation of judicial sensitivity with an emphasis on mercy.
Sustaining the Heretic's Life
Such implicit employment of mercy or charity in order to moderate, or at least to encourage discretion in, the judicial application of canons also appears in Glos. ord. to X 5.7.6, should not bestow. The latter is a short canon forbidding present and future clerics from bestowing inheritances to non-Catholics even if they were relatives.Footnote 71 The gloss here does not directly challenge the canon. But Bernard nonetheless offered a limit on it while painstakingly employing papal, theological, and conciliar sources encouraging judicial leniency:
Glos. ord. to X 5.7.6, should not bestow (nihil conferant)
. . . By reason of charity (causa pietatis) perhaps something can be given to him [that is, the non-Catholic], lest he dies of hunger, [see] lxxxvi. d. pasce fame.Footnote 72 Because at this point he could be converted to the faith: since he ought to be given up by no one. [See] de pen. d. vii. nemo.Footnote 73, xxxii. q. ii. ancillam.Footnote 74, and also the argument on this [in] xlii. di. quiescamus.Footnote 75 and xi. q. iii. quoniam multos.Footnote 76 +Ber.+Footnote 77
The humble tone of the Glossa here with the word “perhaps” indicates that the gloss is less about instructing a juridical antithesis to the canon, but more about providing a pastoral-judicial suggestion. But as I demonstrate below, through the allegations—most of which do not concern heresy at all—Bernard once more implied the principle of mercy that he believed should be applied to the treatment of heretics.
Two allegations from Pope Leo I order pity toward judging young people in affairs such as entering marriage while separating from lovers with whom they have had children (C. 32 q. 2 c. 11). The Glossa further advocates for merciful treatment of heretics, hoping the latter performing penance in the end, through De pen. D. 7 c. 1, a canon implying that the time for penance can extend to death.Footnote 78 Another allegation, coming from the same pope, emphasizes the necessity of helping starving people (Dist. 86 c. 21). One allegation from John Chrysostom's homilies underlines the hospitality demonstrated by Abraham as he gave hospitality to people who came to him (Dist. 42 c. 2). Finally, the allegation from Pope Gregory VII from one of his 1078 Roman Synods at the end (C. 11 q. 3 c. 103) touches upon the group of the excommunicated, which is closely related to the status of the heretics. As a “relaxation of the Apostolical rule,”Footnote 79 Gregory VII here permitted, out of misericordia, communicating with the excommunicated under some situations, such as between family members, providing that the interaction does not support their obstinacy. This rule, later reaffirmed by Pope Paschal II and incorporated into Gratian's Decretum, is clearly an influential one.Footnote 80 The Glossa, extracting the principle of mercy from this variety of canonical traditions, thus constitutes here a nuanced counterbalance in its legal interpretation of a strict canon.
Silence on the Use of Violence for Extracting Confession
Another major judicial issue concerning the trial of heretics is conviction. Should the ecclesiastical court employ violence in order to convict potential heretics? To be more specific, can confession from the heretics be produced through torture? The Decretales, promulgated in 1234, is silent on this matter. The Glossa to X 5.7 does not address this issue either, at least not directly. Nevertheless, the gloss translated below to X 5.7.9, that is, the Ad abolendam, offers a window for speculation, together with more information concerning the usage of compulsion in the treatment of heretics. In this canon, Pope Lucius III instructed that clergymen convicted of heresy will lose their clerical position and privileges unless they voluntarily return to the church and perform required penitential actions.Footnote 81 Of course, Lucius III in this context was not implying that the returning action is optional, but that voluntary repentance leads to leniency and the possibility of rehabilitation in terms of ecclesiastical censure. Bernard's comment on this ruling further emphasizes such voluntarity, while essentially remarking at the very beginning that compulsion should be used, however, for returners to stay in the faith.
Glos. ord. to X 5.7.9, voluntarily to return (sponte recurrere)
But it seems that still he ought to be compelled to preserve the faith, [see] xlv. di. de Iudaeis.Footnote 82 After he has been condemned as a heretic, he is not compelled. . . .+Ber.+Footnote 83
The single allegation in this gloss refers to canon 57 from the Fourth Council of Toledo in 633 (Dist. 45 c. 5), through which the Glossa analogizes the situation under discussion to the conversion of Jews. On the one hand, this conciliar canon forbids forcing Jews to convert. On the other hand, nonetheless, it commands that the Jews already converted through compulsion should still be forced to retain Christianity. The exact nature of such compulsion awaits further investigation; neither the Glossa to this canon (or X 3.42.3, where Innocent III invoked the same decree from the Council of Toledo), nor the Glossa to the allegation (D. 45 c. 5) yields clarification on this matter. But the two levels of parallel here are not difficult to see. Convicted heretics are like Jews, since they should come (return) to the Christian faith on their own will and not to be forced; nonetheless, once they convert, they can be compelled to preserve the faith, as the beginning of the gloss indicates.
Does it mean that a “potential” heretic who does not admit his/her guilt of heresy in the first place (and has not been condemned as a heretic yet) can be compelled to confess using force, or the opposite? The gloss does not yield an answer. Notably, nothing was added after Pope Innocent IV promulgated his bull Ad extirpanda in 1252, which legitimizes the usage of torture against heretics for secular rulers after the ecclesiastical court has convicted them of heresy.Footnote 84 The silence of the Glossa on this matter throughout the entire title on heresy in the Decretales leaves its modern readers in wonder, and perhaps also leaves its medieval readers a gray realm in this case for the practice of law.
In terms of the general use of force in ecclesiastical judicial system, the popes until this point had been condemning the practice of ordeal—although it is important to remember that ordeal is a form of divination rather than torture—for decades: from Alexander III's denunciation of a hot iron ordeal that some priests in Sweden went through in 1171/1172, Lucius III's rejection of an acquittal of a clerical homicide case through water ordeal in 1181, to the formal prohibition against ordeal trials by Innocent III and Honorius III, respectively, in 1215 and 1222.Footnote 85 Nevertheless, as Henry Ansgar Kelly has demonstrated, the twelfth- to the early-thirteenth-century ecclesiastical judicial system and canonists since Gratian had not been as so averse to torture as historians used to assume.Footnote 86 Further, compulsion as an effective way of inducing confessions was undoubtedly employed in the developing inquisitorial practice against heresy. If Innocent IV's Ad extirpanda does not formally invite the inquisitors to do so, Alexander IV's Ut negotium in 1256, which allows inquisitors to absolve one another's canonical irregularity incurred through inquisitorial actions (thus including torture), certainly was taken as an endorsement of such practice. But again, Ut negotium did not appear in the Glossa's references either. It is possible that the glossator was not following closely the clandestine side of the inquisitorial practice of his day (especially that under some overzealous judges) and thus neglected to consider this issue.Footnote 87 It is also probable that the Glossa's silence on using compulsion to induce confessions reflects its unease about proofs that are produced through torture. Ulpian's influential remark about torture as a res fragilis et periculosa would certainly sound familiar to high medieval law professors and students.Footnote 88 Within one decade or two after the death of Bernard, Albertus Gandinus, a Bolognese judge, would warn against “judges that are ferocious beyond measure (iudicibus immodice sevientibus freni)” when discussing investigative torture.Footnote 89
In sum, the Glossa remains silent on the issue of using force to extract confession. It straightforwardly acknowledges the legitimacy of forcing converts to preserve the Christian faith, but does not do so to the torturing of potential heretics for confession in either ecclesiastical or secular courts. Admittedly, the Glossa does not warn against such practice either. The two contemporary papal decrees listed above, which it does not incorporate (perhaps intentionally), demonstrate the increasing toleration or even encouragement of employing force to deal with heresy. The Glossa, understandably, cannot challenge this trend from the institutional top of the church. But its silence on this matter—either because of mercy or the suspicion of evidence extracted by torture, or both—could potentially serve as a counterbalance. Such hesitancy about procedures that involve bodily harm can also be seen in the Glossa's scruples over handing over heretics to secular courts, as demonstrated below.
Scruples about Handing Heretics over to Secular Courts
Regarding the trial of heretics—especially that concerning the cases of lay heretics, the procedural balance between the jurisdictions of the church and secular authorities is another major concern for the Glossa. As a canonist, the glossator was eager to emphasize the active role to be performed by the ecclesiastical tribunal in collaboration with that of the secular. After laying out treatments for clerical heretics, as mentioned above, X 5.7.9 switches to laymen and simply instructs them to be sent to secular courts for punishment. The Glossa, however, carefully supplements the procedural lacuna here and reminds its readers that the ecclesiastical condemnation of the heretics by the church needs to precede the punishments by the secular court:
Glos. ord. to X 5.7.9, a layman (laicus)
Indeed, laymen ought to be condemned for heresy through the Church, but a secular judge should punish him, and the layman is not handed over to a secular court, but only a clergyman, [see] infra. de verb. sig. novimus.Footnote 90 Because a layman always belongs to the secular jurisdiction, but in this case +the sentence must be produced by the Church:+Footnote 91 only the execution occurs through a secular judge. How such people ought to be punished will be told below, [see] infra e. excommunicamus.Footnote 92 +Ber.+Footnote 93
The gloss first invokes X 5.40.27 from Pope Innocent III. In the decretal, which is a canon that does not concern laymen, the pope ordered clerics degraded by the church because of heavy crimes such as forgery to be sent to secular courts for punishment after losing their privilege. In the meantime, Innocent III claimed that the church will intervene if there is danger of death involved. Although it seems that Innocent III's command is supporting the X 5.7.9's ruling that heretics as criminals are to be sent to secular courts, it is important to note that the deposition of the clergy—in other words, the removal of clerical status and privilegium fori—by the ecclesiastical court happens first in the cited decretal. The addition made by Bernard himself during the thirteenth century, enclosed by “+” in the translation above (see note 91), further demonstrates his concern for this procedural matter, perhaps owing to his fear for the abuse of secular power or to the dereliction of duty by the Church courts. Although earlier redactions of the Glossa carefully limit secular judges’ involvement to the execution of punishment, the post-1263 redaction(s) accentuate(s) the message. The text, in effect extending clerical privilegium fori to the laity in the case of heresy trials, stresses that “the sentence must be produced by the Church.” The second allegation is a bit confusing for it could either denote X 5.7.13 or X 5.7.15, as both canons begin with “[E]xcommunicamus.” Nevertheless, both decrees indicate that the condemnation by the Church, together with the deposition of the clergy, precedes the due punishment by the secular court.Footnote 94
However, the Glossa sometimes encounters substantial difficulties as it tries to stress discretion in the legal procedures treating heretics. In the same decretal, Ad abolendam, Pope Lucius III strictly instructed that those who have abjured their heretical mistake or even completed penance assigned by their bishop, if convicted of relapsing into heresy, will be sent to secular courts without ecclesiastical sentencing. The following gloss, however, calls this strict ruling into question:
Glos. ord. to X 5.7.9, hearing (audientia)
Likewise [in] xxiii. d. in nomine Domini.Footnote 95 But if they wish to return, should they not be heard and accepted—since the Church does not close its bosom to those who wish to return to her? [See] C. de summa. Tri. inter claras. circa fi.Footnote 96, and indeed the Emperor says that we do not deny pardon for a crime to those who repent, [see] C. e. t. Manichaeos.Footnote 97 and de pen. d. iii. adhuc instant.Footnote 98 I properly believe that he should be accepted, since the Lord does not wish the death of a sinner,Footnote 99 +and [see] c. 26. q. 6. agnovimus.Footnote 100+ but that he should be converted, live,Footnote 101 and be put into perpetual incaceration (in perpetuum carcerem detrudatur), [see] infra. e. c. penult.Footnote 102 But a hearing is denied in terms of goods (quo ad bona), in case otherwise he would wish to defend himself. +<Despite Tancred's contradiction>,Footnote 103 today this [principle] is to be adhered to, as it has been handed down. [See] infra. eod. c. penult. §. si qui.Footnote 104 Ber.+Footnote 105
Admittedly, Bernard commented that once these people come back, they need to be put into perpetual incarceration (under the church), presumably in a monastery.Footnote 106 Perpetual incarceration or imprisonment would soon, if not already, become one of the most common sentences prescribed by medieval inquisitors. For instance, almost 50 percent of more than 600 penalties recorded in the famous Bernard Gui's register in the early fourteenth century are different forms of perpetual imprisonment.Footnote 107 While this ecclesiastical penalty does not necessarily mean that the imprisoned person will never be released, it certainly does not offer amicable conditions either. Pope Honorius III, in one decretal on apostates who abandon their religious habits, summarized the situation of ecclesiastical incarceration as such: “to the extent that only a miserable life would be preserved for them, until their obstinacy would recover from wickedness.”Footnote 108 Nevertheless, the multiple allegations emphasizing mercy from the Codex Justinianus and Gratian's Tractatus de penitentia imply that Bernard clearly still considered ecclesiastical reacceptance to be more lenient than secular judgment. Not unlike Pope Innocent III in X 5.40.27, the gloss associates the secular treatment with death, which, as a matter of fact, has been indeed prescribed in some contemporary secular law codes including the Liber Augustalis.Footnote 109 The Glossa agrees with X 5.7.9 that people relapsed into heresy should not be given the opportunity of another hearing to defend themselves, but indicates that the audientia is to be denied to the person as far as his property is concerned. In other words, the glossator was suggesting that the penitent sinner should be taken back by the church, but cannot retrieve his confiscated goods. The Glossa represented in F abruptly stops here. After considering and rejecting his teacher Tancred's opinion in his revisions after 1243, however, in the end, Bernard decided to support Lucius III's papal ruling in his comment by acknowledging that “today this [principle] is to be adhered to, as it has been handed down.”
But the very end of the post-1245 version of the gloss invokes X 5.7.15, a decretal from Pope Gregory IX in the same title, where the pope instructed that repentant heretics should be put into perpetual incarceration.Footnote 110 Apparently, Gregory IX here was not ruling the same matter as Lucius III, but no more argumentation was added by the glossator to justify this allegation that contradicts his final line of comment in the gloss. It therefore almost seems as though Bernard was making a humble attempt through this confusing allegation to suggest that putting relapsed heretics, who again wish to return to the church, into ecclesiastical prison, still could be a potential option, rather than immediately and directly sending them to secular courts to face judgment and possibly capital punishment.
To what extent, in the end, did the Glossa's inclination toward leniency influence the contemporary development of inquisitorial practice as well as literature, and the overall treatment of heretics? Surviving in hundreds of medieval manuscripts, Bernard's Glossa with little doubt was well received in law schools and universities during the High and Late Middle Ages. Nonetheless, references to it in its contemporary inquisitorial literature such as inquisitors’ manuals and registers are few. And when indication of potential references appears, it often does not concern mercy. Moreover, the year 1239, when the possibly earliest dated manuscript of the Glossa (already surrounding the texts of the Decretales on the folios’ margins) was copied, saw the burning of 183 heretics at Mont Wimer by a former heretic and now Dominican inquisitor Robert le Bougre.Footnote 111 Around 1266, the year when Bernard passed away, the Dominican master general Humbert de Romans—who once studied canon law in Paris—in a treatise claimed that heretics “multiply ways of going to hell by inventing new sects of errors (vias descendendi ad infernum multiplicant, dum novas inveniunt sectas errorum),” and that they deserve death.Footnote 112 The emphasis on the fabrication of new sects here reminds us of the Glossa's definition of heretics discussed earlier in this article, but the sense of infusing mercy into the treatment of heretics is nowhere to be found.
The Glossa's separation from its contemporary inquisitorial literature can be readily detected when one compares it with the two instructional/consultation texts, or consilia, composed by Raymond of Peñafort on dealing with heretics.Footnote 113 In other words, these two documents were written by the compiler of the Decretales himself. Raymond composed the first consilium, that is, Credo quod, one year after the promulgation of the Decretales. It accompanied Gregory IX's letters Ex parte tua to the archbishop-elect of Tarragona in April 30th, 1235. Considering that the promulgation of the Decretales through Gregory IX's papal bull Rex pacificus happened on September 5, 1234, Credo quod appeared before the first edition of Bernard's Glossa. Notably, it directly mentions that the church is pursuing Waldensians, and that they are handed over to the secular princes to be burned.Footnote 114 Raymond's second and more detailed consilium, Queritur qui, appeared in 1242, thus after the earliest edition of the Glossa. In this text, Raymond claimed that the bones of the heretics who are already dead should be exhumed and also burned (extumulentur et comburantur).Footnote 115
Surprisingly, there is no trace showing that Bernard ever considered these two works as he composed and revised his Glossa. At least, the glossator cited neither of these two consilia as allegations. For instance, Raymond in Credo quod carefully instructed about the incarceration of the heretics, including details such as preventing the suspects communicating with the prisoners. When the Glossa mentions imprisoning the heretics, however, it simply rests upon X 5.7.15 as its sources.Footnote 116 Similarly, what Raymond said without hesitation in his consilia regarding the burning of the Waldensians—whether alive or posthumously after exhumation—does not exist in the Glossa to X 5.7. The texts of X 5.7.3 and X 5.7.5 indeed prescribe posthumous condemnation, so does gl. post mortem (X 5.7.5). The gloss claims that because of the detestable nature of the crime of heresy (in detestationem criminis), even “after death one could be accused and excommunicated.”Footnote 117 But still throughout its comment on X 5.7, the Glossa does not mention death penalty, nor posthumous burning. Similarly, there is little evidence suggesting that Raymond, when composing his second consilium in 1242, ever considered the Glossa, of which the first edition was already in circulation by then.
However, a combination of the aforementioned Glossa's phrase condemning heresy, “in detestationem criminis,” and Raymond's instruction of posthumous burning, seems to have become a model for contemporary and later inquisitorial literature and practice. The formula “in detestationem criminis” appears in none of the canons in the Decretales, nor in the later entire Corpus iuris canonici. But it was mentioned verbatim in Processus inquisitionis, that is, one of the earliest inquisitorial manuals (following Raymond's consilia) by the mid-thirteenth-century inquisitors, Bernard de Caux and Jean de Saint-Pierre, regarding burning the bones of deceased heretics.Footnote 118 Then, it appears again in a similar paragraph from the register of an inquisitorial trial in Carcassonne on February 22, 1325.Footnote 119
Finally, back to the issue of death penalty. The Decretales and the Glossa never mention the burning of heretics. Such practice, however, certainly has been no stranger to the medieval Latin West since the burning of heretics at Orleans in 1022 under King Robert II the Pious.Footnote 120 Also, it would be difficult for us to imagine that Bernard would be ignorant of what Frederick II prescribed in his 1224 rescript for Lombardy, which is “the first law in which death by fire is contemplated,”Footnote 121 or in his 1231 Liber Augustalis concerning the death penalty by fire against heretics. After all, one gloss from the Glossa to X 5.7.10 even cites a constitution against heretics from Frederick II on November 22, 1220.Footnote 122 But still, unlike Raymond's consilia, the Glossa emphasizes “the Lord does not wish the death of a sinner” and is clearly hesitant about sending heretics to secular courts, as demonstrated by this article. This sentiment apparently did not affect the Council of Narbonne in 1243/1244, which repeated the Ad abolendam that relapsed heretics are to be relinquished to secular judgment without further hearing.Footnote 123
Nevertheless, could it be due to the Glossa's encouragement to accept repentant, previously relapsed heretics back into the Church, or at least its emphasis on discretion in the judicial application of canonical decrees, that inquisitors Bernard de Caux and Jean de Saint-Pierre did not sentence relapsed heretics Pons Bladier, Pierre d'Albigeois, Raymond Sabbatier, and others to secular courts on May 6, 1246?Footnote 124 In this sense, studying the Glossa prevents one from simply assuming the system of canon law as an integral machinery of a persecuting and suppressing society during the thirteenth century. Moreover, examining the Glossa can also shed light on the transmission and transition in the understanding of heresy by medieval lawyers, as demonstrated above through the case of the definition of heretics. Further tasks, therefore, await to investigate the Glossa's influence upon both the canonical jurisprudence and the ecclesiastical-judicial treatment of heresy from the second quarter of the thirteenth century onward.
