II. Violation by heresy inquisitors of canon law protecting privacy

The relegation of secret matters to the forum of conscience is summed up in the adage, Ecclesia de occultis non judicat (The Church makes no judgment about secret matters),Footnote ¹¹ which was repeated at the Council of Trent in 1563,Footnote ¹² and the canonical privilege against self-incrimination is expressed in the principle, Nemo tenetur prodere seipsum (No one is obliged to betray himself).Footnote ¹³

The method of criminal procedure known as inquisitio was perfected with required procedures by Pope Innocent III (1198–1216). As set forth at the Fourth Lateran Council in 1215,Footnote ¹⁴ it was designed for the prosecution of crimes other than heresy,Footnote ¹⁵ and when it began to be used against heresy suspects shortly afterwards, the judges were obliged to follow the Lateran rules, which have not always been well understood. For instance, it is not true that the defendant was automatically considered guilty until proven innocent.Footnote ¹⁶ A suspect was not to be charged unless there was widespread belief in his guilt of a particular public crime (or, eventually, unless the action was “promoted” by an aggrieved person, or brought to the judge's attention by the denunciation of concerned persons); and, after investigation, the suspect was to be summoned and charged immediately with that specific crime; then, if he denied guilt, he was to be given a chance to defend himself against testimony or other proofs presented by the judge (inquisitor).

The earliest and most important violation of due process committed by heresy inquisitors was to interrogate suspects as if they were witnesses, and force them to take an oath to tell the truth to questions not only concerning others, but also concerning themselves. The original motivation may have been laudable, in that it allowed a person to volunteer past wrong-doing and receive a salutary penance, as an example to others. But the proper forum for such admissions was private confession to one's priest, which was made mandatory at Lateran IV, with strong cautions to confessors not to reveal any confessed sins (what was later called violating “the seal of confession”).Footnote ¹⁷ Requiring suspects to testify about themselves easily gave rise to enforced self-incrimination, depending on the scrupulousness or unscrupulosity of the inquisitor. That is, a suspect could be asked about a specific public crime and forced to confess guilt, thereby obviating the need to prove his guilt, or he could be required to reveal other crimes committed by him not yet in evidence or known to the public, or even required to explain his understanding or belief on points of Christian doctrine, and any wrong statement could be taken as an instant crime of heresy or error and charged against him.

Such pre-trial interrogations became a standard procedure of heresy interrogators, though supported by no justification in canon law; thus, it is described and prescribed in Bernard Guy's manual for heresy prosecutors (1324). Usually Guy was meticulous in citing the canonical basis for all procedures, but in this case he did not offer any.Footnote ¹⁸ The practice was further developed a half century later by Nicholas Eymeric in his Directorium (1376). It was discussed two centuries later by Eymeric's editor in 1578, namely, Francisco Peña (circa 1540–1612), the most authoritative jurist in Rome at the turn of the seventeenth century.Footnote ¹⁹ Peña admits that there is nothing specific laid down in law about this practice, which is left to the prudence of the judges and local custom.Footnote ²⁰

Mayer claims that some authorities of the time were aware of the shaky legal grounds of the procedure, and that they cautioned against the use of “leading questions.”Footnote ²¹ He cites one, Prospero Farinacci (1544–1618),Footnote ²² as warning “that judges had to be careful not to ‘extort’ a confession when accusing a suspect of lying, since that would render his confession null.”Footnote ²³ However, Mayer is mistaken on this point: the interrogators definitely did ask leading questions. What Farinacci was warning against was telling outright lies to the suspect; the term used is suggestio, meaning suggestio falsi. Farinacci's statement is a comment added to Peña's later work, Praxis inquisitorum (1605),Footnote ²⁴ at a point where Peña warns that it is not allowed to elicit the truth by telling a lie.Footnote ²⁵ Farinacci says, “Judges are to guard against seeking to extort confessions from defendants by a lie or false assertion. For, apart from the fact that the judges do wrong in so acting, such confessions extorted through false suggestion do not harm the persons who make the confessions.”Footnote ²⁶ Less conscientious judges, however, might well follow the rule of law that anything witnessed by the court was “notorious,” and in need of no further proof.Footnote ²⁷ Mayer observes that the frequent repetition of the ban on leading questions (read now: “lies”) “probably indicates that the rule was more honored in the breach.”Footnote ²⁸

Intrusion upon the confessional forum had reached such a point in the sixteenth century that in 1559 under Pope Paul IV the Congregation of the Holy Office (the Roman Inquisition) ordered confessors to refuse absolution to penitents involved with heresy until they first admitted their offense publicly to a heresy inquisitor or their bishop.Footnote ²⁹ According to the popular handbook of the heresy inquisitor of Genoa, Eliseo Masini, Sacro arsenale, first published in 1621, neither inquisitor nor bishop can absolve a heretic solely in the forum of conscience, in spite of the decree of the Council of Trent, because of new decrees of the Holy See and the Holy Office.Footnote ³⁰ However, Masini later takes it for granted that a heretic's confessor can absolve him without further ado, but cautions that if he is accused publicly for the same offense, he can be prosecuted in the external forum.Footnote ³¹

The example that Mayer gives of a breach of the alleged ban on leading questions, namely, the interrogation of Galileo's pupil Giannozzo Attavanti, in 1615 (part of the dossier on Galileo that was being assembled), is not apropos, since Attavanti was questioned only as a witness concerning another person: he was required to testify to what he knew about specific opinions held by Galileo.Footnote ³² The Attavanti interrogation does, however, provide an excellent introduction to the Roman Inquisition's procedure, since suspects are also treated as witnesses at this point (before grounds of suspicion are revealed and charges leveled). The formula for the oath administered to the witness is abbreviated to “telling the truth” (juramentum veritatis dicendae).Footnote ³³ Attavanti was summoned only to give information (ad informandum), and yet he was asked the same question as suspects: “Does he know the cause of his summoning?”Footnote ³⁴

If a summoned party were told he was a suspect, or treated as a suspect, and were knowledgeable in the law, he could demand that charges be made known to him and the basis of suspicion be established; and if the inquisitor refused to comply, he could claim a grievance and enter a formal appeal, which the inquisitor would be obliged to respond to formally; but it was within his discretion to reject the appeal. Whether, or how often, such appeals were made, is not known. Most defendants, of course, did not know the law, and advocates were normally not appointed or allowed to suspects at this point in the proceedings—if at all. Joan of Arc is an example of someone who had an instinctual knowledge of proper procedure, who insisted on knowing what the questions were to be; but to no avail. And her appeals to the pope were rejected.Footnote ³⁵

Coercing suspects to testify against themselves had become so routine by Joan's time that it was not even raised as one of the manifold objections lodged against the trial in the papally-mandated review two decades later. It was also long agreed that suspects who refused to answer at this preliminary stage could be tortured.Footnote ³⁶ Masini in Sacro arsenale says that, if suspects insisted on first “being given their defenses” (that is, formally tried, with the charges leveled and explained beforehand), they were told that it was not to be done in such circumstances.Footnote ³⁷ In so doing, the Holy Office went against its own revered principles regarding torture, which Masini praises.Footnote ³⁸ If such a suspect were to enter a formal appeal on the matter, one could readily assume that the inquisitor (who himself was the arbiter of whether to accept or reject appeals) would turn it down.

III. Galileo's non-trial of 1616

On the basis of depositions gathered against him in 1615 and 1616 in connection with the theory of heliocentrism, the Holy Office could have proceeded against Galileo in the usual way, by citing him and interrogating him on these points as a witness, and then, eventually, starting an inquisitorial trial by formally charging him; but it did not. One obvious reason was that the heretical or erroneous nature of heliocentrism had not yet been established, and he could hardly have been convicted of a serious offense for defending it. So what the Holy Office did was to appoint a board of theologians to pass judgment on it. It found, on February 24, 1616, the proposition of the sun's stability to be formally heretical, since it was against scripture and common doctrine, while the corollary proposition of the earth's movement was declared to be “at least erroneous in faith.”Footnote ³⁹ According to Léon Garzend, writing in 1913, the Holy Office had a much broader concept of heresy than did theologians of the time or later, which included holding an opinion found contrary to scripture. Garzend's ultimate purpose was to argue that, even though the pope himself agreed to such declarations of heresy, it was a juridical matter, not an infallible pronouncement affecting the Catholic faith.Footnote ⁴⁰ But Beretta rejects Garzend's claim that there was any such distinction in the operation of the Roman Inquisition in the seventeenth century.Footnote ⁴¹

Two days later, on February 26, Galileo was warned by cardinal inquisitor Robert Bellarmine about the error of heliocentrism and admonished to abandon it, and immediately thereafter Galileo was given a “precept” by the commissary (deputy inquisitor) of the Holy Office not to defend the theory in any way.Footnote ⁴² The events of this day have been very controversial in historical accounts of Galileo. Mayer has shown, against those who maintain that the issuance of precepts was a rare event for the Holy Office, that it was a routine practice, and he also maintains that admonitions (monitiones) functioned in the same way.Footnote ⁴³ The idea that the precept was a later forgery, still held by some, is generally discounted.Footnote ⁴⁴ What is important for our purposes here is that when Galileo actually came to trial in 1633, he was effectively acquitted of any charges stemming from his violation of the precept. However, the final sentence delivered against Galileo on June 22, 1633, in its historical account of events leading up to the trial, gives an accurate summary of the events surrounding the precept. It recalls that the proposition of the stable sun had been declared heretical by the consultor theologians of the Supreme Inquisition and that of the mobile earth at least “erroneous in faith”; that Cardinal Bellarmine was to order him to “relinquish the said false opinion,” and that if he refused, the commissary of the Holy Office was to give him a precept to leave the doctrine and forbid him to teach or defend or treat of it; and that, subsequently, after being advised and warned by the cardinal, the commissary gave him a precept to relinquish the doctrine and not to hold, defend, or teach it in any way.Footnote ⁴⁵

Another important event took place a week later, on March 5, 1616. The Congregation of the Index in its decree Cum ab aliquo tempore announced that two works that taught “the false Pythagorean doctrine, completely contrary to Divine Scripture,” of the mobility of the earth and immobility of the sun, namely, Copernicus's work and Diego Zuñiga's book on Job, were to be suspended until corrected, and another work, by Paolo Antonio Foscarini, was to be condemned altogether; but no publication or other writing by Galileo was named.Footnote ⁴⁶ Here the final sentence is less accurate when it sums up this decree, in saying that it prohibited books that treat (che trattano) of this doctrine, which was declared to be false and altogether contrary to scripture.Footnote ⁴⁷ This seems to indicate that the cardinal inquisitors considered Copernicus's book to be still prohibited, even though the required corrections had been issued in 1620.Footnote ⁴⁸

Clearly, Galileo had not been subjected to a trial at the hands of the Holy Office. According to Mayer, “Galileo's enemies had tried to have him condemned for heresy and failed.”Footnote ⁴⁹ But since everything that the Holy Office did was cloaked in secrecy, perhaps his enemies thought they had succeeded. At any rate, a rumor began to circulate that Galileo had abjured at the hands of Cardinal Bellarmine and been subjected to punishment. That is, that he had been tried in an inquisition and convicted of holding a doctrine contrary to the faith and been forced to abjure it and been sentenced to penance. At Galileo's request, Bellarmine composed a statement denying any such abjuration and punishment, and stating that the only action taken was that Galileo was notified of the declaration of the pope and the Congregation of the Index that the doctrine of Copernicus was contrary to Holy Scripture and therefore could not be defended or held.Footnote ⁵⁰ Bellarmine said nothing here about a command having been given to Galileo not to defend it. It is noteworthy that he asserted that the pope himself had made the declaration of conflict with scripture, which the Index subsequently announced.

IV. Galileo investigated by the Holy Office, 1632–1633

It was only many years later that the Holy Office proceeded against Galileo on suspicion of defending heliocentrism. The cause was the publication in 1532 of his Dialogue on the Ptolemaic and Copernican systems. The pope, Urban VIII, immediately ordered a report to be made on it, and an ad hoc committee (special congregation) was appointed, which presented its findings to the pope sometime in late August or early September of 1632.Footnote ⁵¹ Whether Urban had seen the report before September 5th, when he gave an audience to Francesco Niccolini, the Tuscan ambassador, is not clear. Niccolini feared that the members of the committee were ill-disposed towards Galileo, and he asked that Galileo be given the opportunity to defend himself. To this Urban replied, in effect, that this would go counter to the usual methods of the Holy Office: “In such matters the Holy Office did nothing other than declare a censure, and then issue a summons to recant.”Footnote ⁵² Niccolini asked if the pope did not think that Galileo should be given advance knowledge of the difficulties and oppositions or censures being made concerning his work and what it was that offended the Holy Office.Footnote ⁵³ Urban responded violently that the Holy Office did not do such things and did not operate in this manner: these things were never given beforehand to anyone; it was not the custom.Footnote ⁵⁴ He went on to say that Galileo knew very well what the difficulties were, since he himself had discussed them with him.Footnote ⁵⁵ As will become apparent, Galileo would have to continue to surmise what the exact objections to his book were when he finally made his appearance before the Holy Office, still during the pre-trial investigative phase of the proceedings.

In sum, the pope here testily justified the Holy Office's refusal to reveal the bases of suspicion to a suspect simply because it was customary procedure. Francisco Peña says that the right to defend oneself against charges is a matter of natural law, citing Clement V in the Council of Vienne as well as Roman law, and he insists that defenses must be given to defendants even when they have confessed.Footnote ⁵⁶ One can interpret this to mean that even after a person's rights have been undermined by forced self-incrimination, he must be given a chance to defend himself against his own forced admission.

On the basis of the committee's report,Footnote ⁵⁷ the pope ordered (mandavit) the inquisitor of Florence to be told to signify (ut significet) to Galileo that he should appear (ut . . . compareat) before the commissary of the Holy Office in Rome, receiving from Galileo a promise of obeying this precept (hoc praeceptum), which he was to impart to him before witnesses.Footnote ⁵⁸ The same day, the pope's brother, Cardinal Antonio Barberini, wrote to the Florence inquisitor, telling him that it had been decided to summon Galileo to Rome, “to give an account of his book.” The summoner was to summon him to appear before him with notary and witnesses, without telling him the reason. Once he was present, he told him why: he was to go to the commissary at Rome, who would inform him of the purpose of his coming. If he refused, the inquisitor was to put the summons in the form of a precept.Footnote ⁵⁹

Thus one sees that Galileo was summoned by the Roman Inquisition three times without being told why: the first time was when he was already in Rome, on 25 or 26 February 1616, whereupon he discovered that the purpose of his appearance was to be given various instructions against heliocentrism; the second time was in Florence in late September 1632, when he found that the purpose was to give him a further summons, to present himself before the commissary in Rome, or, if he refused, the identical summons in the form of a precept. The Florence inquisitor had been informed of the purpose of Galileo's third appearance, at Rome, namely, to obtain from him an account of his book. But he was to tell Galileo only that the Roman commissary would tell him the purpose. As usual, however, the commissary was not about to tell him, making him guess instead.

V. Further pre-trial procedures, April 1633

After many delays in coming to Rome, Galileo finally presented himself to the Holy Office on April 12, 1633: “Having been summoned, Galileo appeared personally.”Footnote ⁶⁰ He took an “oath of telling the truth,” with no further words of the formula recorded, but since he had not been charged at this point, one might think it the traditional witness-oath, de se et aliis, as specified by Eymeric. But Peña in his comment says that the customary formula, given to both witnesses and suspects, goes thus: “I swear by God and the cross and the four Gospels that I touch with my hands to tell the truth, and if I do, God help me, but if not, God condemn me.”Footnote ⁶¹ Therefore, the fiction from the old inquisitio generalis was finally given up, that the inquisitor was just as interested in others as in him; but the suspect still was not told that he was a suspect, and he was questioned vaguely about various matters until the real issue was touched upon, whereupon he was forced to incriminate himself.

Galileo appeared before Commissary Vincenzo Maculano, with Fiscal Procurator Carlo Sincero assisting (assistente). Sincero's role in these proceedings has not been properly understood. As explained by Francisco Peña, the fiscal procurator, or simply “fisc,” was a public minister who took on the role that the accuser used to play in the nearly obsolete accusatio procedure, but without the attached liabilities (penalties for failure to make the case, or for false accusations).Footnote ⁶² He corresponds in our system to an official prosecutor, like the district attorney and state's attorney, but acting under instruction of the judiciary. One of his functions early in a case was to petition the inquisitor to arrest suspects if the evidence against them seemed strong enough.Footnote ⁶³

It is clear from the final sentence that the eventual trial was a case between Sincero on the one side and Galileo as defendant, or reus, on the other.Footnote ⁶⁴ But what Sincero's precise duties at the pre-trial investigations were is not clear, whether he conducted all the questioning, or simply looked on as Maculano did it, or whether they shared the task.Footnote ⁶⁵ The record reads, fuit per D. interrogatus, and since it is only Sincero who has just been called Dominus,Footnote ⁶⁶ one might argue that the abbreviation should be expanded to Dominum. But in favor of Dominos is Galileo's statement in a letter of April 23 telling of a visit to his room by Maculano and Sincero, “who are the ones who examine me.”Footnote ⁶⁷

Galileo was first asked how and when he originally came to Rome, and whether he came on his own, or was enjoined (injunctus) by someone. He replied that the Father Inquisitor of Florence ordered him to present himself to the Holy Office. Next he was asked whether he knew or could imagine a reason why he was ordered to Rome. Galileo replied that he assumed that the reason was that he should render an account (render conto) of his recent book, because the book dealer had just been ordered to stop selling it and to send the original to Rome. He was then asked what kind of a book it was, this book that he imagined to be the cause of his being ordered to Rome. He responded that it was a book written in dialogue on the two theories of the heavens and elements.

This report shows the typical routine of preliminary questioning, asking the suspect to speculate why he had been ordered to appear, without telling him that he was a suspect. Note that he was not even said to have been summoned to the Holy Office, but only to Rome. There would certainly be no reason to offer him the assistance of an advocate, since he had not yet been informed that he was under suspicion, and no charges had been made against him.

After being shown the Dialogue and acknowledging that it was his, he was asked if he had ever been to Rome before, specifically in 1616, leading to a discussion of the order given to him by Cardinal Bellarmine. He admitted that there may have been a precept given to him to the same effect. He was finally dismissed, having been given another precept: of not departing without permission from the room to which he was assigned (in place of being kept in prison); and he was “enjoined” to sign his deposition, and required to take a vow of silence.Footnote ⁶⁸

On April 22, Commissary Maculano wrote to one of the cardinal inquisitors, Francesco Barberini, saying that it had been decided in a meeting the day before that Galileo's book defended the prohibited doctrine, which thereby made him suspect of holding it; and therefore his case could be quickly expedited.Footnote ⁶⁹ Since Galileo confessed that he had written the book in question, no further confession would be necessary to bring him to trial. But on discussing the matter again, the cardinals foresaw that such a trial would raise difficulties because Galileo in his interrogation denied that his book contained what it clearly did contain. Maculano thereupon proposed a solution that was accepted: he was authorized to try to obtain an admission from Galileo outside of court (extrajudicially). This solution was reached on the morning of April 27, as is clear from a new letter that Maculano wrote to Cardinal Barberini on April 28. The idea was that a confession on Galileo's part (repeated formally, of course, in court) would reduce the penalties he would otherwise have to suffer if he refused to acknowledge his fault.Footnote ⁷⁰ This arrangement can be called a plea bargain, but not, as has been argued, because it entailed pleading guilty to a lesser offense with a smaller penalty to avoid a trial,Footnote ⁷¹ but rather because a plea of guilty to the actual charge (which he had to guess at) would result in a lighter punishment. The truth was, of course, that if he did not admit to a fault, the inquisitors may not have convicted him at all, because of the weakness of the case against him.Footnote ⁷²

Maculano visited Galileo that very day (the 27th) after lunch,Footnote ⁷³ and explained to him that he had erred and gone too far (di haver errato, di haver ecceduto) in his book, and urged him to confess it judicially. Galileo responded that he wanted time to think about how best to express his error. Maculano hoped to get the confession that day (the 28th), and all that would be left would be to interrogate him about his “intention” (intentione), and then “give him his defenses” (dargli le diffese).Footnote ⁷⁴ As will be seen, by “intention” is meant Galileo's actual beliefs about heliocentrism; and “giving defenses” is shorthand for the actual beginning of the trial, in which the suspect was formally charged and given a period to respond, along with full documentation, in order to mount a defense against any of the charges he rejected.

It seems clear that Maculano meant for the examination on intention to take place before the trial began, as Masini indicates should be done.Footnote ⁷⁵ Peña, too, placed it there, but that was before the custom of making it mandatory and enforcing it with torture was instituted.Footnote ⁷⁶ But in Galileo's case it was postponed until after his trial concluded, perhaps because of the principle invoked by Masini that the Holy Office did not resort to torture until the defendant had a chance to defend himself.

On April 30, Galileo was not “summoned” (vocatus), but was “judicially recognized in person” (constitutus personaliter), before Maculano and Sincero. This time, that is, Maculano acknowledged that Galileo himself had petitioned a hearing; and after taking another oath of telling the truth, he was asked (by Sincero or Maculano) only one thing, to say what it was that he wished to say. Galileo proceeded to admit his fault in a very roundabout way: “I freely confess (liberamente confesso) that a reader not knowing my mind (il lettore non consapevole dell'intrinseco mio) might understand the arguments as supporting the false side (per la parte falsa), which I intended to refute (ch'io intendevo di confutare).” This section of his testimony (except for the bit about his intention to refute the false side) is underlined and marked off, and it was undoubtedly the basis of one of the charges formulated against him in the formal arraignment (which, as will be explained, does not appear in any record). Shortly afterwards, Galileo repeated that he did not mean to support heliocentrism, that it was foreign to his intention (alieno dalla mia intentione). After signing his statement, he returned and offered to emend his book, to reinforce the arguments against the heliocentric system; it could easily be done, he said, since the interlocutors in the Dialogue say that they will meet again for further discussion.Footnote ⁷⁷

VI. Final preparations for the trial

It was only on May 10 that the actual trial by inquisitio would take place, when the form set out at the Fourth Lateran Council, which was still the basic law in the matter, was to be followed, with the inquiring judge, that is, the inquisitor, asserting that the summoned inquiree, inquisitus, was under suspicion of committing a specific offense or offenses, which would be explained, so that he could defend himself. The Lateran text says nothing about how the plea was to be performed. During the thirteenth century it became the practice to put the accused person under oath to answer the charges truly,Footnote ⁷⁸ an oath modeled on the oath imposed after infamy was established and canonical purgation was ordered (the suspect swearing innocence of the charge, and supplying a required number of compurgators, that is, character witnesses). The Lateran law specified that the role of the accuser was taken by publica fama, voiced by the judge. But, as has been noted above, in Continental practice, this voicing of suspected offenses was performed by a public official, the fisc.

In order to play his role, the fisc obviously had to formulate charges from the evidence that the inquisitor, with his help, had gathered. But there is curiously little discussion among legal writers of the time for the “contesting of the suit” (litis contestatio), as it was called (originally referring to civil cases)—that is, the leveling of charges against the suspect and the suspect's answer, the point at which the suspect became a defendant, if he denied the charges. As Mayer shows, only the leveling of charges received attention, while the plea was completely neglected.Footnote ⁷⁹ But even the collecting and presenting of charges was confusingly and slightingly treated in official records. As Mayer puts it, “Commentators went straight from the interrogations during the investigative phase to how to conduct the defense, a question presupposing that the suspect had denied the charges.”Footnote ⁸⁰ There is little sense of how and when it was done. But one can get a good idea from Peña's scattered remarks on the role of the fisc. He says that it is now the custom that the fisc is always the accuser in the inquisitorial tribunal.Footnote ⁸¹

The fisc formulates a libellus accusatorius or “bill of charges” after the testimony of witnesses has been recorded and the necessary information gathered by means of diligent inquiry (inquisitio); it is addressed not to the suspect, but to the inquisitor (Peña gives an example, in which the Holy Office fisc St. Augustine accuses Martin Luther of heresy, and cites many current authorities for formulas and commentary).Footnote ⁸² The fisc is to detail each admitted crime, so that the suspect/defendant can know what offenses he is to respond to, in order to defend himself.Footnote ⁸³ The fisc will have formulated some of these charges earlier, to administer to witnesses in an attempt to prove them, when the suspect has failed to confess guilt concerning them.Footnote ⁸⁴

In his later Praxis inquisitorum, Peña says that after the inquisitor has gathered information about the denounced suspect, the fiscal procurator in some inquisitorial tribunals presents a libellus accusatorius detailing the chapters of offenses, with the defendant present in court, but in the forum of the Roman Inquisition, the fisc instead presents positiones et articuli containing the same crimes,Footnote ⁸⁵ according to this formula: “The fiscal procurator of the Holy Inquisition presents the following positions and articles in the case of heresy that he has against N. (who is detained in the prisons of the Holy Office), which he petitions to be admitted to be proved, according to the procedures of the Holy Office.”Footnote ⁸⁶ Note that the defendant is not said to be present, as was required in the other jurisdictions referred to above, but rather detained in prison.

In the three examples that Peña gives of the fisc's list of charges before the Roman Inquisition, the fisc starts out by submitting all of the evidence against the suspect (inquisitus): “First of all, instead of articles, the said fiscal procurator here repeats and reproduces the witnesses previously examined and their depositions, as well as the suspect's words, confessions, and deeds, and whatever documents were produced in this case,” insofar as they support the fisc and go against the defendant.Footnote ⁸⁷ He goes on to say that, on the basis of these materials, it is established, or, insofar as it is not, he wishes to prove, that the defendant denies purgatory (here he is to give some examples of his doing so), like a heretic thinking badly (male sentiens) of purgatory, that it is a mere pious invention, and many trustworthy witnesses have testified to this and will do so. Then he “posits” four specific charges relating to the general charge, and finally posits that there is public voice and fame about all of the above, and asserts that all of it is public and notorious, as witnesses, etc. (that is, will testify).Footnote ⁸⁸ In the next chapter, Peña speaks about the content of the charges, and one of the points he makes, as Mayer notes, is that the fisc's articles should be plain and to the point.Footnote ⁸⁹

As intimated above, it seems to have been the rule that the original lists of charges against defendants in inquisitorial trials are not preserved in the records, or treated in commentaries on inquisitorial procedure; instead, it was only lists that were created later, after defendants formally contested the charges, which were detailed and explained. Since, as will be seen, Galileo would waive these formalities, even this secondary list of charges would not be produced. Therefore, just as Galileo had to guess at the precise nature of the complaints against him when he was first interviewed, so one is left to speculate about how Sincero formulated the case against Galileo. Assurance that it did indeed happen is found in the statement to that effect in the final sentence that was passed against him; as cited above, it asserts that the trial was a case between Sincero and Galileo: “We issue this sentence in the case pending between Fiscal Sincero on the one side and you, Galileo Galilei, the defendant here present, on the other side.”Footnote ⁹⁰

It might be thought that subsequent records, like Galileo's plea, the summary of the case, and sentence, could produce clues as to the nature of Sincero's formulations, but one cannot be certain, and it would be fruitless to spend much time on the exercise. They doubtless included all of the points touched upon in the narrative portion of the final sentence, including disobeying the precept and obtaining the license to publish his book under false pretenses, as well as encouraging belief in heretical and erroneous propositions.

But there are two very important points to be learned from Peña's account of the Roman Inquisition's practice: first, unlike in other tribunals, the defendant was not present when the fisc delivered his charges; and second, that along with the charges, he delivered the documentary proofs that he had compiled against the defendant. Therefore, Sincero must have submitted his positiones et articuli to Maculano sometime between Galileo's judicial confession on April 30 and when Galileo actually appeared for trial on May 10. Included with the charges, then, would be materials comprised of, among other things, the April 30 confession, the written version of the 1616 precept, depositions of theological experts who had commented on his Dialogue, and damaging excerpts from his testimony about himself in the interrogations of April 12.

Whereas Sincero's submission would have consisted only of adverse elements of the collected materials, a complete record of everything turned up in the pre-trial information-gathering was supposed to be given to the defendant; this was called “a copy of the process” (copia processus). In the trial of Giordano Bruno, it was called “copy of the whole offensive process” (copia totius processus offensivi), that is, of the investigation that had been conducted against him.Footnote ⁹¹ It is perhaps conceivable that Maculano himself ordered this to be done, but it is more likely that the mandate had to come from the pope and the cardinal inquisitors. Eymeric discusses six different ways in which such copies were to be given, mainly dealing with protecting the identity of witnesses, when they might be endangered. But by the time that Peña came to comment on these methods, a “universal custom of the Holy Office” forbade any disclosure at all of the identity of witnesses.Footnote ⁹²

VII. The trial: May 10, 1633

A formal trial began then, like now, only when a defendant was “brought up on charges” and required to plead guilty or not guilty; this occasion in a criminal inquisition was likened, as noted above, to the litis contestatio, or “contesting of the case,” in a civil action, when the defendant answered the plaintiff's charges. Confusion arises from the use of the term processus (or, in Italian, processo) for the investigative phase (including the uncanonical grilling of suspects as witnesses against themselves) as well as for the trial itself.Footnote ⁹³ As just noted, the “first process” was called the processus offensivus in the case of Giordano Bruno. In the prosecution of Joan of Arc it was termed processus preparatorius, whereas the actual trial was called processus ordinarius.Footnote ⁹⁴

Galileo's next recorded appearance, on 10 May, was the result of a summons (the text of the citation is not given): Vocatus, comparuit personaliter, this time appearing only before Maculano, and with no mention of an oath being administered. The record says only that Maculano “assigned him a term of eight days to present his defenses, if he wished and intended to present any.”Footnote ⁹⁵ This was, in fact, the beginning of his trial. It is remarkable that even Mayer, who so perceptively notes that accounts of cases moved straight from interrogation of the suspects to the presentation of the defense, misses the point at which Galileo's trial took place. In fact, he claims that Maculano was acting on his own: “Following his plan and still acting without the Congregation's knowledge or approval, on 10 May Maculano summoned Galileo and assigned him eight days to prepare his defense.”Footnote ⁹⁶

What must have happened, on the basis of Peña's descriptions of procedure, is that Maculano formally presented to Galileo the fisc's list of formal accusations, giving him the opportunity to study them for a week before responding, and also to prepare a strategy for refuting any of the charges he intended to deny. Maculano would also have given him the complete copy of the previous proceedings, as described above. In addition, he would have informed him that, if he wished to deny any of the articles, he could have the services of an advocate. As stated earlier, there was some dispute over whether advocates and procurators could be permitted to defendants in inquisitorial proceedings, but it was the practice of the Roman Inquisition to allow them.Footnote ⁹⁷ Peña says, “An advocate is to be given when the defendant denies the charged crimes.”Footnote ⁹⁸ Then Peña quotes the Madrid instruction of 1561: “In an inquisitor's presence, the defendant will communicate with the advocate, and with the advocate's advice he will respond to the accusation either orally or in writing.”Footnote ⁹⁹ Further: “The role of the advocate is to admonish the defendant to tell the truth and ask a penance for his fault, if he is at fault; and his response will be imparted to the fisc.”Footnote ¹⁰⁰

Galileo, however, declined these opportunities, admitting partial guilt, but defending his good intentions concerning the precept he had been given. His words are, “I have understood what Your Lordship has said to me; and I say in reply, in my defense, that is, to demonstrate the sincerity and purity of my intention, not to excuse the excess I have in fact committed (in the way I have already admitted), I present this writing, along with an attached affidavit of his late eminence, Lord Cardinal Bellarmine, written in the very hand of the said lord cardinal.”Footnote ¹⁰¹ The writing was a justification for his not having mentioned to the censor of the Dialogue the prohibition he had been given; the essence is that he did not believe it necessary to tell the censor about the prohibition that was given to him, since, as he read it in Bellarmine's affidavit, it was no different from the prohibition binding upon everyone by the decree of the Congregation of the Index. He had not remembered that the precept given at the time had additional words “which I hear are contained in the command” (che sento contenersi nel comandamento), the extra words being “or to teach it in any way” (vel quovis modo docere).Footnote ¹⁰² This was to support his claim that he had not been given the precept in writing.

He ended by saying that, concerning the remainder, he left himself to the usual clemency of this tribunal.Footnote ¹⁰³

Galileo was obviously prepared to make this response. Whether he took the time to read over Sincero's accusations is not known, nor is it known whether his informal plea, as here recorded, was accepted in place of a formal response, under oath. We do know that it was the effective end of the trial, the whole of which may have taken no more than an hour.

VIII. Arriving at a verdict

A Summarium of the whole case was prepared for the consideration of the pope and the cardinal inquisitors.Footnote ¹⁰⁴ Many scholars allege that it was basically unfair to Galileo, but Mayer judges it to be accurate on the whole and even slanted in his favor.Footnote ¹⁰⁵ It was reviewed on June 16. Present were Pope Urban VIII, various of the cardinals, Commissary Maculano, and the Congregation's assessor (but not the fisc, Sincero).Footnote ¹⁰⁶ As usual in such proceedings, the actual judges in the case did not hear or review the whole case, but only saw the summary (though they could quiz their deputed judge, the commissary, Maculano, on details).

After the vota, or opinions of the cardinals, were heard, the pope decreed, obviously in keeping with the consensus, that Galileo was to be interrogated, including under a threat of torture, about his intentio,Footnote ¹⁰⁷ that is, his actual beliefs on the subject of heliocentrism.

Such a decree is a stunning demonstration of the distance that heresy inquisition had come in violation of defendants’ rights. Even though individual inquisitors had been contravening the prohibition against judging secret matters for centuries now, in extorting self-incriminating confessions from suspects in preliminary interrogations, one sees here that the explicit coercion of a defendant's beliefs by torture was authorized at the highest level of the Church's government. To repeat, the pope here ordered that Galileo was to be forced, in virtue of an oath, to answer questions truthfully, and under threat of torture, to reveal his private opinions. By papal law (rather than by papal abuse), such a demand would be legitimate only in confession, a question asked by a confessor to whom one went voluntarily, and the response would be protected by the seal of confession; and there would certainly be no threat of torture, or possibility of ordering torture.

Torturing for intention, as Mayer rightly notes, “has been misunderstood,”Footnote ¹⁰⁸ but even Mayer's understanding of it is mistaken, and so is Speller's, with which he agrees.

Speller says that it was not intended to find out the reasons for the suspect's wrong actions, but rather to discover his wrong beliefs.Footnote ¹⁰⁹ The truth is that it was designed to discover precisely whether or not wrong beliefs were the motivation of the the suspect's wrong actions.Footnote ¹¹⁰ In its mandatory form it was a new practice, which could hardly have been in force for more than three decades. It was certainly unknown to Peña when he was commenting on Eymerich in 1578. At that time Peña barely admitted the possibility (that is the legitimacy) of torturing for intention, and only at the very end of his long scholium on torture, where he cites Diego Simancas for a justification of the process.Footnote ¹¹¹ Farinacci in 1614 approved of the practice as a reasonable compromise at times between ordering purgation and ordering abjuration (that is, convicting the defendant on the basis of presumption).Footnote ¹¹² But it is only in Masini in 1621 that it appears as a routine practice of the Holy Office.Footnote ¹¹³ An early instance of its use appears in 1607, when Paul V decreed that a bigamist be tortured on his intention, and then, if nothing more turned up, he was to abjure de vehementi, and be sentenced to the galleys for five years.Footnote ¹¹⁴

In Galileo's case, the examination on intention was to be carried out not with actual torture but only with the threat thereof. Whether Galileo was told of this limitation is not known. It may well have been part of the plea bargain that he made with Maculano, or it may have been the result of standard rules for defendants of advanced age or ill heath.Footnote ¹¹⁵

After arriving at this decision, the pope continued (doubtless still in keeping with the vote of the cardinals): if Galileo bore up (si sustinuerit)—that is, passed this testFootnote ¹¹⁶ —and did not confess that he had in the past held heliocentrism, or still held it, he was to abjure de vehementi. This meant, of course, that he would first be convicted of the crime of “vehement suspicion of heresy” (VSH), a charge lesser than heresy, roughly standing as misprision of treason does in relation to treason,Footnote ¹¹⁷ or murder in the second degree as opposed to first-degree murder. It could be imposed for a large variety of reasons, all dealing with ways of showing sympathy for heresy, aiding and abetting heretics, and so on.Footnote ¹¹⁸ Galileo was to be sentenced to prison at the discretion of the Congregation, and forbidden under pain of relapse to treat (tractare) of the condemned belief again in writing or in word (scripto vel verbo).Footnote ¹¹⁹ It is important to realize that even the lesser conviction of VSH would be treated as equivalent to a conviction of actual heresy if he were convicted again of holding the same belief; the second conviction would constitute relapse into heresy, bringing with it automatic consignment to the secular arm and death. But the surprising point here is that the prohibition extended not just to defending heliocentrism, but also treating of it, which, literally taken, would preclude him even from refuting it. Finally, Galileo's book was to be prohibited, and the sentence was to be publicized,Footnote ¹²⁰ which was a major departure from standard procedure.Footnote ¹²¹

To sum up what happened at the June 16 session of the Congregation, Galileo was judged by judges at a remove from the defendant's presence; this seems to have been the way it was always done. Commissary Maculano (also present at this session, but not one of the voting judges) had presided as stand-in or deputed judge (which is what “commissary” means) at the trial actions in Galileo's presence, which took place in a single session, on May 10: Galileo was formally presented with the fisc's bill of charges (not preserved in the records, a standard omission) and given eight days to reply. But rather than accepting this term to prepare his plea and plan his defense, he entered his plea immediately. He pleaded guilty to one charge, as confessed previously on April 30 (giving the appearance of supporting heliocentrism in his Dialogue). Then, submitting a defense arguing the purity of his intentions, he pleaded not guilty to the charge of violating a precept and to the further charge of malfeasance for not mentioning the precept to the censor. Finally, with regard to any other charges, he threw himself on the mercy of the court.

The cardinals then gave their opinions on what the verdict should be, and the pope pronounced the actual verdict: he was condemned only for VHS, which he was to abjure. His other offenses were not subject to abjuration.Footnote ¹²² According to Beretta, it was this verdict of the pope's, and not the sentence delivered in the name of the cardinal inquisitors, that was definitive.Footnote ¹²³

IX. Galileo forced to confess his beliefs under threat of torture, June 21, 1633

The moment that Galileo formally confessed on April 30 to favoring the heresy of heliocentrism while denying that he intended to favor it, he fell subject to the new custom of examining for intention under torture. The examination had not yet taken place when he reconfirmed his confession in his formal plea on May 10. It is not clear why the examination did not occur before the meeting of the Congregation on June 16, where the pope ordered it to take place before sentence was passed, but there was a similar timing in the case judged by Paul V in 1607. Urban did not need to state what would happen if Galileo did not pass the test, namely, if he admitted that he had held the opinion (especially after it was condemned) or still did hold it. That is, he would be convicted of actual heresy, made to abjure it as such,Footnote ¹²⁴ and doubtless be subjected to a harsher punishment (say, a longer imprisonment).

On June 21, therefore, in accord with the pope's order, Galileo personally appeared before the commissary with the fiscal procurator assisting, and he took another oath of telling the truth. After being asked by the dominus (Maculano or Sincero) or domini (Maculano and Sincero) whether he had anything to add, he was asked about his thoughts: “Does he hold, or has he held, and how far in the past, that the sun is the center of the world?”Footnote ¹²⁵ Again, from what is presented in the book, it is presumed (praesumitur) that he held that opinion after its condemnation; “therefore let him freely tell the truth about whether he holds or has held it.”Footnote ¹²⁶ Once again: from the way it is supported with arguments in the book, it is presumed that he held it, or at least that he held it at that time; and unless he resolves to confess the truth, appropriate legal remedies will be employed.Footnote ¹²⁷ Finally: let him tell the truth, or else “it will come down to torture.”Footnote ¹²⁸ His answers remained constant: he originally had considered the Ptolemaic and Copernican systems as equally possible, but after the determination of the Congregation of the Index, he held only the Ptolemaic system to be true.

Then, because nothing else could be accomplished in fulfilling the pope's order (in executionem decreti)—that is, to sound out his thoughts—his signature was obtained and he was sent back.Footnote ¹²⁹

X. The Sentence and Abjuration

On the very next day, June 22, the cardinal inquisitors, along with Maculano and Sincero, convened in the convent of Santa Maria sopra Minerva, along with the consultor theologians. More than one case was taken up, the first of them being Galileo's, and he abjured in their presence.Footnote ¹³⁰ The sentence, read by one of the cardinals, or by Maculano, was addressed directly to Galileo.

The judges’ summary of Galileo's dealings with the Holy Office in 1616 has already been noted, and also its inaccurate statement of the Index decree (asserting that it prohibited all books that “treated” of the false doctrine of heliocentrism, whereas it allowed Copernicus's book to be reissued, after modifications).

The sentence continues: A diligent examination of his book revealed that he had violated the precept because of having defended (havendo difesa) the condemned opinion, by presenting it as explicitly probable (espressamente probabile), a grave error, since no opinion condemned as contrary to scripture can be probable.

Moreover, he confessed to failing to mention the precept not to hold, defend, or teach the opinion in any way when seeking permission to publish his book.

Further, he confessed that a reader could conclude to the probability of heliocentrism from arguments in the book, which he admittedly produced out of cleverness in making even false propositions seem plausible.Footnote ¹³¹

It is important to note that just because Galileo's past offenses were listed in this part of the sentence, it does not mean that he was thereby condemned for them.Footnote ¹³² The precise statement of condemnation comes later.Footnote ¹³³

Note that nothing is made here of the permission to treat heliocentrism hypothetically, mentioned by Galileo in his first deposition, and also recorded in the Summarium, which says that the pope concluded that the Dialogue violated the orders (ordini) and the precept given him, by moving away from hypothesis.Footnote ¹³⁴

Then the cardinals take up his defense. They seem to accept what he says about forgetting the words of the precept and believing that the prohibition given to him did not differ from the Index's general prohibition, but they say that this prohibition, as expressed in Cardinal Bellarmine's memo, condemns him on the other charge: that is, even though he knew that it was contrary to Holy Scripture, he dared to “treat, defend, and persuade” it as probable; and his license was unscrupulously obtained because he failed to mention the precept in the form that he had it.Footnote ¹³⁵

Next, the cardinals explain the “rigorous examination” that he was recently subjected to; it was mandated because of their doubt that he had entirely told the truth about his intention. He is now told that in this examination he answered “Catholically” concerning his said intention, but that this Catholic response was “without any prejudice concerning the things confessed by him and concluded against him as just stated above.”Footnote ¹³⁶ According to Eliseo Masini, it was very important that this sort of declaration be made before an examination on intention took place; otherwise, if the defendant were to deny the deed under torture, he must be absolved and released.Footnote ¹³⁷ If Galileo had chosen to accept the services of an advocate, perhaps he could have made something of the failure of Maculano to enter a protest limiting the scope of the rigorous examination before they carried it out.

Finally, in the actual judgment of condemnation, they find him vehemently suspect of heresy (that is, convict him of supporting heresy), in two ways: (1) suspect of having held and believed (d'haver tenuto e creduto) the false doctrine, contrary to scripture, of the sun as unmoving center and the earth as moving; and (2) suspect of holding it allowable to defend as probable an opinion defined as contrary to scripture.Footnote ¹³⁸

This pronouncement shows that the cardinal inquisitors accepted the determination of the consultors that heliocentrism was a heresy. It might also seem to say that they were convicting Galileo of actually believing in this heresy, the false doctrine of heliocentrism, after having assured him that he had confirmed his orthodox belief in the rigorous examination. But it must be remembered that they were convicting him of having rendered himself suspect of this belief, that is, of giving the appearance of believing it.

The sentence concludes: “You have thereby incurred all the penalties of canon law concerning such offenders. You will be absolved if you renounce the said errors and heresies [only one heresy has been mentioned, and only one error of belief, as determined by the consultants], and every other heresy and error, in the [pre-prepared] form that we will give to you. Finally, your book is also prohibited.”Footnote ¹³⁹

The sentence does not explicitly say that any return to the condemned offense will entail a conviction of relapse with mandatory consignment to the secular court, but it was implied, since one of the necessary concomitants of a conviction de vehementi was the penalty of relapse on a second conviction.Footnote ¹⁴⁰

As punishment, Galileo was condemned to the prison of the Holy Office, for a length of time to be determined, and ordered to say the penitential psalms once a week for the next three years.Footnote ¹⁴¹ The stay at the Holy Office turned out to be only for a single night, for on the day following, June 23, the Congregation met again, and after other business, ordered Galileo to be removed from the prisons of the Holy Office and to stay in the palace of the grand duke in place of prison (loco carceris).Footnote ¹⁴²

In the abjuration provided to Galileo, which he read while personally present in court, he first swore that he had always believed what the Church held and would continue to do so.Footnote ¹⁴³ Such a statement about the defendant's constant and consistent orthodoxy in the past followed from the results of the rigorous examination specified in the sentence. Both features were matched in Masini's formula for sentence and abjuration de vehementi.Footnote ¹⁴⁴ Only the latter (that is, statement of past and present orthodoxy) was stipulated by Peña,Footnote ¹⁴⁵ since the mandatory rigorous examination on intention was instituted only after his time.

Grammatically, Galileo's statement about faithful belief would seem to be the end of his oath; but the oath was doubtless meant to cover the rest of his statement, which was, in effect: Even though I was given a precept to abandon the false opinion of the sun being motionless and not to hold, defend, or teach it in any way, in speech or writing, after being informed that it is contrary to scripture, nevertheless I published a book in which I give strong reasons in favor of it without refutations; therefore, I was adjudged strongly suspect of heresy, that is, suspect of having held and believed this doctrine. However, because I wish to remove from myself this justly founded strong suspicion, I abjure the said errors and heresies, and I swear that in the future I will avoid anything that will give rise to such suspicion again.Footnote ¹⁴⁶

Instead of holding, with Mayer, that the abjuration gives the precept as “the cause of his offense,”Footnote ¹⁴⁷ one should conclude that it merely echoes the narrative in the sentence, that the fact of the precept, and his contravention of it, aggravated his offense of appearing to support a proposition against scripture. Mayer speaks of “two alternative theories of the trial” on the side of the prosecution, the precept theory and the heresy theory, with the heresy theory winning out in the sentence and the precept theory returning in the abjuration.Footnote ¹⁴⁸ But it was the heresy theory that won out altogether. There has been a similar clash of theories among modern scholars about the outcome of Galieo's trial: was his crime disobedience or heresy? The answer is obviously the same; it was not possible to abjure disobedience or insubordination or contempt of court.