Manga Francois - Radboud University Nijmegen, Faculty of Philosophy, Theology and Religious Studies, Graduate Student

Francois Manga is a graduate of Radboud University Nijmegen (Faculty of Philosophy, Theology and Religious Studies). He also has an academic presence (KU Leuven - University of Leuven, Faculty of Theology and Religious Studies, TBI Fellow, Radboud University Nijmegen, Titus Brandsma Instituut, TBI Fellow) as a researcher interested in Systematic Theology, Spirituality & Mysticism, History of Christianity, Philosophy of Education, Philosophy of Law, Political Philospohy, and Ethics.

THE LAW AGAINST HERETICS IN THE LIBER AUGUSTALIS:
THE INTERACTIONS BETWEEN THE STATE AND THE CHURCH
 
Introduction.
 
Several interesting issues can be noticed when talking about the Inquisition. Among them, the crucial point on the relationship between the powers in action, the State or the Empire and the Church can be questioned. The genesis of the collaboration and the conflict of the Crown and the Cross could help for a better understanding of the situation and its consequences as well. One of the examples at that point is in the Liber Augustalis provided by the Holy Roman Emperor Frederick II in the 13th century, and particularly its Law against Heretics. The exploitation of this primary source in addition to some other comments and analysis open numerous paths into the various relations inside the influential circles and the judicial frame which is used as the basis to undertake the activities that brought together two different authorities against the same targets. A striking option could be to investigate on the ranking of these Sovereigns to see the one who had the leading position, the strongest who managed and conducted the initiatives up to put the other power under its authoritative engagement. Three parts are shaping this Essay in which at the beginning the official known author of the Liber Augustalis, the Emperor Frederick II will be scrutinised. Then, the second segment is dedicated to the arguments of the Constitutions of Melfi about the handling over the Heretics. The third and last section of this treatise highlights on the tangles, and the various overturns for the control of the leadership between the Empire and the Church authorities. 
 
Part One: Frederick II and his book.
§ Who is Frederick II?
The one who is associated with the name of Frederick II, Holy Roman Emperor, was born under the name of Constantine Frederick Roger in 1194 at Jesi. He died in 1250 at Castel Fiorentino in the south of the nowadays Italy. He comes from two royal family lineages. On the father’s wing, he is the son of Emperor Henry IV, and on the mother’s side, he is the grandson of Emperor Frederick I also called Frederick Barbarossa or Redbeard,1 and he is the son of Constance of Naples, the daughter of King Roger I.2 These elements help to apprehend the way he mastered the power. He bears many noble’s titles, from his family’s connections, from his various marriages, from his conquests and sometimes from elections like in Germany. For instance, he was enthroned King of Sicily, King of Germany, King of Burgundy, King of Jerusalem and King of the Romans. Above all these titles, he had reigned as Holy Roman Emperor from 1220 to 1250 on behalf of the Hohenstaufen, a German princely family.3 His authority covered together territories of what is today the Germany, the south of Italy, the Switzerland, the Belgium, The Netherlands, the Austria, the Czech Republic and the northern half of Italy including Rome. Regardless his influence, his relations with the Popes were not always good. He faced the excommunication at least three times for multiple reasons. Two times by the Pope Gregory IX in 1227 and 1239 and one occasion by the Pope Innocent IV in the year 1245.4 In his life, the Emperor Frederick II involved in multiple domains to organise and modernise his Empire. He, therefore, gathered scholars and high educated people in his court notwithstanding to their religions, their languages nor their origins. Thus, in the Kingdom, “he tolerated Muhammadans, Jews and Orthodox Greeks5 to support and develop the literature, the poetry and the Sciences. To that regard, Mathematics, Philosophy, History, Architecture, Medical Sciences, Arts were among his interest. His commitment to the culture led to the creation of the University of Naples in 1224.6 Amid other realisations is the promulgation of the Edit of Salerno which structured the pharmaceutical activities and the Sicily Code of Law or the Liber Augustalis in the same year.7
 
§A presentation of the Liber Augustalis.
The Liber Augustalis is similarly known as the Leges or Constitutiones Augustales or Constitutions of Melfi according to the name of the place of publication in 1231.8 Based on some studies, the adjective “Augustalis” is in honour of Augustan majesty9 which characterises the Holy Roman Emperors. The Constitutions of Melfi begins with a “Solemn Prooemium10 or a preface, which is followed by three sections designated by the word “Books” with altogether 204 Titles. The first Book, the biggest has 82 Titles generally on the public law. The second, the shortest has 52 points in judicial procedure. While the third focuses on private and penal law in its 70 dispositions. 
Although it only contains the name of Frederick II, that volume is not a bloc from one author, but a compilation of many works, as said by the Emperor Frederick II himself: “May our community receive this work designated by the title Augustalis, which was begun under the hope of divine favour and completed by the help of his grace, to the praise and glory of our God. In reverence of the August serenity and in honor of the royal dignity, receive graciously, O people, these constitutions, which should be used in court and outside of court. We have ordered them to be compiled by Master Petrus della Vigna of Capua, judge of our great court and our fideles.”11 The compilation of laws with the title of Liber Augustalis definitively became the legal foundation of the Kingdom12 and has four authors, following HuillardBréholles. Thus, King Roger II of Sicily13 has issued some of the laws, the one of King William I,14 King William II,15 and The Emperor Frederick II are incorporated as well.16 The commission appointed to compile the laws therefore took “material from the royal statutes of the Norman Kings of Sicily and those of Frederick II. Lombard, Roman, canon, feudal, and Byzantine law also left their marks on the compilation to varying degrees.”17
The period of issue of the work is in its text, for it is said to have been “done in the solemn consistory at Melfi, in the year of the incarnation of our Lord, 1231, in the month of August, in the fourth indiction, but issued in the month of September, of the following, fifth indiction.”18 Here are exposed the dates of promulgation and the period of the first printing which are distant one to another by more than two centuries. Because, if the Code of Law is said to have been promulgated in 1231 by Frederick II himself, it is printed during the reign of Ferdinand I in 1475 at Naples. Originally written in Latin, the edition used in this Paper is a translation by J. L. A. HuillardBréholles who produced a collection of all the documents of Frederick II.19 The themes of the Liber Augustalis are very diversified and touched many aspects of the life of the family, the dowry, the games, the prostitution, the Nobles, the way judging, the sentences and the religion. About religious matters, not everything is regarded as heretical. The apostatizing, 20 the sacrileges or the blasphemy against the Virgin Mary are punished but not as heretical.21 In the Constitutions of Melfi, the heretical affairs have proper details, descriptions, prosecution, and sentences.22
 
Part Two: The Law against Heretics.
 
§ About heretics.
The Scholar Edward Peters states that “notably Frederick II in Sicily, wrote extremely severe laws against heretics into their own Constitutions, including the death penalty.”23 Here comes one of the connections between the Liber Augustalis and the Inquisition in the Middle Ages. In the Book One, the two first Titles written by Frederick II, are dedicated to development on Heretics; theirs names, their activities, their geographical extent, the method to fight them, the punishment for those who don’t change and the legislation about their supporters, their accomplices and their children.24
The activities of the heretics are displayed under adjectives or names of beasts. They “try to tear the seamless robe of our God,” says the Emperor who seems to acknowledge that the heretics are working for the division of the Church, particularly in the faith under Peter, the paradigmatic image of the papacy. Then the same text describes the Heretics as violent wolves, evil angels, sons of depravity. Even more, it calls them snakes on the contrary of the faithful Christians who are identified to doves. The author of the Liber Augustalis warns that the heretics are not obviously dangerous, but they are potentially destructive. That is why they are equalled to serpents who secretly spread their poison from their tails. After the definition of their actions through some analogical names, Heretics in the same Title are seen in organised groups called Sects. They are Arians, Nestorians or Patarines. The Editor gives additional details on Arians and Nestorians: “The Arian heresy, named for Arius (A.D. 280?-336), a priest of Alexandria, taught that Christ was not the same divine substance as God the Father.”25 The same source says that “the Nestorian heresy, named for Nestorius (ob. A.D. 451), a Syrian bishop, taught that Christ was two persons, one human and another divine.”26 Meanwhile, the name Patarines is said to be used by the targeted people: "they call themselves Patarines like those who have been exposed to suffering, in example of the martyrs who underwent martyrdom for the Catholic faith.”27 Frederick II used that name more often than the others to show how wrong and heretical they are. They don’t know God, his Son neither and they endanger their neighbours by providing them “fake” spiritual care and they expose their proper bodies to the fire of the hell.28 This may refer to the kind of sacrament they delivered to sick people, perhaps like the consolamentum given by the Cathars.29
In the 11th century, the Patarines as an organisation was first supported by the Church of Rome in promoting the clergy celibacy and fighting the simony. But sometime later, it became distant with most of the Church’s guides because of simony suspicion, and with the beginning of the Crusade by Urban II, the priority of Rome has shifted. For that reason, Patarines influence started to decline.30 During the rule of Frederick II, the name Patarines is a general term for all those who have different leaders and practices other than Rome and the Emperor. 
He makes a kind of long comment in which he talks of survival who “didn’t learn from the example of what happened to the others.”31 And says the legislator “we pursue them more urgently insofar as they are known to practice the crimes of their superstition within the Roman Church herself.”32 Wherever they are in the Empire, they are declared public criminals like those who are convicted of the crime of treason or injury to the King. Therefore, as criminals, the sentences are the death penalty, the confiscation of goods and the erasing of the memory of the convicted.
 
§ Analysis of Legal dispositions against Heretics: Procedures; Inquiring; Punishment.
The Liber Augustalis purpose is in its first legal provisions to fight Heretics. The modus operandi is described slightly and stands on few words. It starts by saying who are the Heretics. The name used for those who are targeted, suspected and accused as a group is sect, and more commonly the Patarines as seen above. Then there is the designation of the institution to run the procedure, a court with an ecclesiastic service for inquiry and pastoral admonition. The heretics have to be investigated and be prosecuted by the civil lawyer as criminals.33
The inquiry’s point which is conducted by Ecclesiastics and Prelates concerns only “those who become known by an inquisition.”34 The so-called Inquisition is established by Pope Innocent III in 1119 by the decretal Vergentis in senium. This document identifies heresy with the doctrine of treason as found in the Roman Law, and prescribes some sentences and procedural measures. The Emperor is clear on the method: the first step is to follow the activities of people.35 The heretic could be denounced by someone, a witness for instance or just suspected. The goal of the enquiry is to see if the accused is convicted of heretical activities or doctrine positions. This could be about their teaching and their belief in the Trinity or the divinity of Jesus. They are also examined about their relations with the Church, the authority of the Pope, the Bishops and the Emperor. Another point could be their practices: which kind of Sacraments do they have and who is the master of such ceremonies. The places of their meetings are to be reviewed and their opinion on the Church as well. The same Ecclesiastics and Prelates supply pastoral care throughout suitable admonition, and the right doctrine and teachings of the Catholic Church, the obedience to the Church's hierarchy is part of the advice too. Perhaps the accused have a time of answer after which the Court decides on the following aspects of the procedure. Only if the convicted openly manifest a stubborn attitude, the punishment is commanded.36
About the punishment which is often applied for the relapses or the obstinate, the Civil Court acts by goods confiscation, the removal of all dignities and honours extended to the offspring unless they denounce someone else, and the public stake of the heretic.37
 
Part Three: The Liber Augustalis and the game of powers.
 
§ Confusions between religious and political leadership
While going through the Liber Augustalis and particularly the articles in which it stands against the Heretics, there could be some questions about the authority which takes the initiative to recognise, to pursue, to prosecute and to punish in cases of heresy. The concern could be of high importance because this fight against the so-called Heretics involves many aspects of the power. The civil or political supremacy represented by the Emperor and the religious or spiritual mastery embodied by the Pope and other Ecclesiastics are the two mains actors in the discussion.
The core of the situation is a twofold issue in which the first dimension is to highlight the similarities expressed between civil crimes and religious sectarianism and on the other hand to understand how a civil Ruler can provide procedural statements on religious matters.
On the first level, the Liber Augustalis and especially the Emperor Frederick II in the First Book, Titles I and II, intents to organise the society with more justice for everyone and to create a peaceful environment to permit to all to enjoy their activities and their life as well.38 Such a project required a reliable and a strict code of law on which everybody can refer to about his duties, his rights and the general organisation of different services and structures of the Empire. Among these roles of the Ruler, the particular point is to bring about the distinctive position of Frederick II. In 1220, he is crowned as Holy Roman Emperor with the seek to go ahead with the work of the previous Holy Roman Emperors who believed “ that their position of Emperor made them feudal overlords of other kings and princes, and they came to be regarded as the topmost summit of the feudal pyramid, from whom Kings held their Kingdoms, while they themselves held directly of God.”39 This is to say the Holy Roman Emperors are the warrants of the power in the world and plan to continue the tradition started by Constantine. The initial elements to understand the connection between the Emperor and the Church are consequently to be found in the time of Constantine who “in making the State Christian (…) made the Church a State institution and therefore under the imperial control. Caesaropapism was the logical consequence.”40 The Holy Roman Emperor who is crowned by the Pope on behalf of God feels the responsibility to defend and protect the Church and the Christian faith.
The project of organisation of the Empire hence extends its interest up to the field of religion. Maybe that is why the Emperor in the Liber Augustalis starts with laws against those who could try to “divide” the Church which is part of his Land. One of the first objectives of the Emperor seems to be to keep the unity of his territory. The political and religious unity of the Empire could be for him a basis to exercise his power and his influence. The presence in his court of people who follow other beliefs and religions is not a problem as far as they don't diminish his power and they don't bring division in the Empire and remain under his control. The fight against heretics, therefore, could be the struggle to preserve unity in one faith, one Empire and one Emperor. Thus, Heretics are recognised as opponents to the unification project and ideal of the Emperor. For that reason, they are under the law against the Empire, they are treaters of the Kingdom, and they should be pursued as criminals for bringing division within the group. Frederick II on that point says that “the crime of heresy and these condemned sects should be numbered among public crimes.”41 The criminalisation of the heresy has some consequences in the way to deal with it. Heresy is explicitly compared to any other crimes like high treason. That is why talking about Heretics, the Liber Augustalis is strict and prescribes that “they should be investigated by civil official like other criminals.”42 One of the names or adjectives used for these heretics could be more precise on that point. 
For the Emperor Frederick II, the division is not only one goal of the heretics, but it is one of their methods. From those two dimensions, Powell explains that “the word sect comes from the Latin seco, I cut. Hence heretics, who are members of sects, are slaves to the word sect, which means a cutting or a division.”43 The heretics are not merely people acting individually, but they are said to be organised. This group is problematic as far as is not under the regulation and the domination of the Emperor and so becomes a danger. 
Because of all these reasons, the civil Ruler can be asked to carry procedural forms on religious activities and that what is done by the Emperor. In fact, in its role as sovereign, one of the duties and assignments of Frederick II was to dominate his Kingdom and to prepare a solid legal framework basis for the future. With that regard, he could not fight against heretics without an official, structured and organised method. For that reason, in the text of the Liber, every punishable religious activity is not qualified as heretical. The Liber Augustalis on matters of prosecution of Heretics agrees with previous papal documents and even move one step further by giving the initiative of fighting heretics to the civil authority.
In fact, the Pope Lucius III in 1184 published the Decretal Ad abolendam in which he consents to work hand in hand with Emperor Frederick I Barbarossa. The aim is to fight against heretics who are those who attempt to challenge the authority. This action likewise called contumacia characterises the heresy as a crime. At that epoch, the heretics were to be tracked by Bishops, investigated by them but punished by temporal courts.44 This will be maintained by Innocent III in 1207 with the Decretal Cum ex officii nostri which prescribes “that whatsoever heretic, especially if he be a Patarine, shall be found therein, shall immediately be taken and delivered to the secular court to be punished according to law.”45 Frederick II changed it in the sense that the Ecclesiastical members henceforth has only to look out and investigate if there is a laesa majestatis, or treason as defiance of any authority whether religious or civilians and to administer the pastoral advice, the persuasio for instance.46 While in the two other parts of the procedure the task of tracking heretics and the one of punishing them are in the hands of the civil power as the Emperor says: “we pursue them more urgently insofar as they are known to practice the crimes.”47 About the sentences, the Emperor as representative of civil authority uses the pronoun “We”: “We order by the promulgation of our present law that these Patarines should be condemned to suffer the death for which they strive.”48 The “we” here may represents the civilian power.
 
§ Some Influences over the ages.
For many Scholars, “the laws of Frederick II were the first to impose the death penalty for heresy, and these laws were used by Popes after Innocent IV to erect the inquisition function into a distinctive tribunal.” In fact, the work of Frederick II which is considered as the “birth certificate of Modern Bureaucracy,”49 is at some points as a continuation and a development of other laws had a profound influence in the European states and judicial system. Although he did not create a collaboration between the State and the Church in the fighting heretics, he provides the duty of pursuing and judging the heretics to the Church because bishops didn't always "have means to identify, convict and punish heretics.”50 His law was a juridical assortment to help the Church. Nevertheless, “the Emperor’s mission as protector of the Church gave him this only opportunity to draw the universal Roman Church into his state, even to subordinate her to the state as in need of protection.”51
In development and influence, the Liber Augustalis and its methods, up to the early 19th century was available in Italy, precisely in Naples and the Kingdom of Sicily.52
Another achievement of Frederick II is to have maintained a close collaboration between the political and the spiritual powers one until the various transformations of the societies in the 18th century bring the separation of the two authorities. In this game of leadership, Frederick II gave the first, the prominent and the dominant place to the civil authority as it was since Constantine. 
The crisis around the decline of the influence of Charles the Great brought the power to the Church, and with Frederick II, the initiative of prosecution and the leading authority in fighting the enemies is given back to the civil party. This could be one of the earlier stages of the nowadays separation of powers because such an initiative may be difficult if the religious power was the most influential. By handling over the main authority in the civil bloc, Frederick II put the religious influence in the second place and under the protection and management of the crown. Thus, “the basic influences went create the first purely secular state, freed from the bonds of the Church.”53
 
Conclusion
 
The aim of our survey of the Liber Augustalis, a compilation work on legal affairs, and the in particular law against the Heretics was to observe the intertwist in the use and the expression of the authority by two parties, namely the Empire and the Church. An encounter with the Holy Roman Emperor Frederick II recognised as the author or the main one of the Constitutions of Melfi and a better discovery of that book from a trustful translated text gave comfortable elements. The detailed analysis of the prosecution procedure showed the Patarines as the common enemy of the Church and the Empire because by their disclosure and their behaviour they don’t abide these authorities. The Inquisition in the Leges Augustales entered a new phase, the one of a synchronisation of actions between the Empire and Church. The task conducted some centuries earlier under the Church authority to search, to denounce, to judge and to condemn the sect’s members is endowed to the civil Ruler by the Constitutiones Augustales, and this could be later interpreted as the prior step for the separation of power between the spiritual and the profane. And furthermore, “its influence on the later legislation of the absolute monarchies of Europe can by no means be ignored.”54
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1. See Harry S. Ashmore et al., Encyclopaedia Britannica: A New Survey of Universal Knowledge (Chicago, London, Toronto: Encyclopaedia Britannica LTD, 1961), 9. 710.
2. Ashmore, Encyclopaedia Britannica, 9. 711.
3. See Ashmore, Encyclopaedia Britannica, 11. 628.
4. See Ashmore, Encyclopaedia Britannica, 9. 712-713.
5. Ernst, Kantorowicz, Frederick the Second, 1194-1250, (New York: Frederick Ungar Publishing Co.,1957), 267.
6. See Ashmore, Encyclopaedia Britannica, 9. 713.
7. Ashmore, Encyclopaedia Britannica, 9. 713.
8. James M., Powell, trans. The Liber Augustalis, or Constitutions of Melfi Promulgated by the Emperor Frederick II for the Kingdom of Sicily in 1231. (New York: Syracuse University Press,1971), Preface IX.
9. Kantorowicz, Frederick the Second, 226.
10. Kantorowicz, Frederick the Second, 224.
11. Powell, The Liber, 152.
12. Powell, The Liber, Introduction XVI.
13. See Kantorowicz, Frederick, 236.
14. Ashmore, Encyclopaedia Britannica, 23. 625.
15. See Kantorowicz, Frederick the Second, 112.
16. Powell, The Liber, Preface XIX.
17. James, Ross Sweeney and Stanley Chodorow, Ed, Popes, Teachers, and Canon Law in the Middle Ages, (Ithica and London: Cornell University Press, 1989), 54.
18. Powell, The Liber, 152.
19. Powell, The Liber, Preface X.
20. Powell, The Liber, 10.
21. Powell, The Liber, 151.
22. Powell, The Liber, 7-11.
23. Edward, Peters, Inquisition, (Berkeley: University of California Press, 1989), 57.
24. Powell, The Liber, 8-10.
25. Powell, The Liber, footnote 7, 8.
26. Powell, The Liber, footnote, 8, 8.
27. Powell, The Liber, 8.
28. Idem.
29. Lambert, Malcolm, The Cathars, (Oxford: Blackwell Publishing, 1998), 192.
30. "Patarines." New Catholic Encyclopedia. Encyclopedia.com, accessed May 26, 2017, https://www.encyclopedia.com/religion/encyclopedias-almanacs-transcripts-andmaps/patarines.
31. Powell, The Liber, 8.
32. Idem.
33. Idem.
34. Powell, The Liber, 9.
35. See Peters, Inquisition, 48.
36. Powell, The Liber, 9
37. Idem.
38. Kantorowicz, Frederick, 226.
39. Ashmore, Encyclopedia Britannica, 8. 406.
40. Ashmore, Encyclopedia Britannica, 19. 628.
41. Powell, The Liber, 8.
42. Powell, The Liber, 9.
43. Powell, The Liber, footnote 3, 7.
44. See Peters, Inquisition, 47-48.
45. Peters, Inquisition, 49.
46. Peter, Inquisition, 44.
47. Powell, The Liber, 8.
48. Powell, The Liber, 9.
49. Kantorowicz, Frederick the Second, 228.
50. Robert Ian, Moore, The formation of a persecuting society, Power and Deviance in Western Europe, (Wiley: Basil Blackwell, 1990), 9.
51. Kantorowicz, Frederick the Second, 270.
52. See Ross, Popes, Teachers, 53.
53. Kantorowicz, Frederick the Second, 227.
54. Kantorowicz, Frederick the Second, 223.
 
Sources
 
Ashmore, Harry S. et al., Encyclopaedia Britannica: A New Survey of Universal Knowledge, Chicago, London, Toronto: Encyclopaedia Britannica LTD, 1961.
Malcolm, Lambert, The Cathars, Oxford: Blackwell Publishing, 1998.
Moore, Robert Ian, The formation of a persecuting society, Power and Deviance in Western Europe, Wiley: Basil Blackwell, 1990.
Kantorowicz, Ernst, Frederick the Second, 1194-1250, New York: Frederick Ungar Publishing Co., 1957.
Peters, Edward, (Ed), Heresy and Authority in Medieval Europe, Philadelphia: University of Pennsylvania Press, 1980.
Peters, Edward, Inquisition, Berkeley: University of California Press, 1989.
Powell, M. James, trans. The Liber Augustalis, or Constitutions of Melfi Promulgated By the Emperor Frederick II for the Kingdom of Sicily in 1231. New York: Syracuse University Press. 1971.
Ross Sweeney, James and Chodorow, Stanley, Ed, Popes, Teachers, and Canon Law in the Middle Ages, Ithica and London: Cornell University Press, 1989.
 
Online sources:
New Catholic Encyclopedia, "Patarines." Encyclopedia.com, accessed May 26, 2017, https://www.encyclopedia.com/religion/encyclopedias-almanacs-transcripts-andmaps/patarines.