senses. One of the most common occurs in the phrase in nostra [the pope’s] praesentia constitutus, which probably comes close to the sense it has in the precept and cannot mean simply “present,” unless “present in our presence” makes any kind of sense.30 The precept’s text similarly couples praesenti to constitutus. The papal chancery might have filled its documents with unneccessary rhetorical flourishes, but the Inquisition did not. The use in the precept of two words (praecipere and ordinare) that both must be translated into English as “order” does not provide a counter-example. Legal commentators gave exhaustive treatment to a whole range of related terms for “to order,” all of which they apparently thought denoted or connoted slightly different meanings.31
Another common sense of constitutus in canon law helps explain the first meaning. This is the phrase in minoribus ordinibus constitutus (“constitutus in minor orders”) or the like, for example, in tua et Tolosana ecclesia est archidiaconus constitutus (“constitutus archdeacon in your church [cathedral] of Toulouse”), where the word signifies that a person holds an office. That sense becomes much clearer by the time Francisco Peña uses it several times in his commentary on Nicolau Eymeric’s Directorium Inquisitorum to refer to an inquisitor’s or his vicar’s establishment in power.32 The fact that other of the Inquisition’s judicial acts, including several of Galileo’s (for example, the interrogation of 12 April 1633 or his “defense” of 10 May [DV, nos. 37 and 40]), begin instead with vocatus may provide another clue to the meaning of constitutus. According to Francesco Beretta, vocatus signified that the suspect or witness had received the citatio verbalis, while constitutus meant more or less the same thing, that he or she had the required citation and had responded to it by making him- or herself available to the court. Above all, Beretta concluded, constitutus indicated that the act had taken place in a notary’s presence and was therefore both authentic and legally valid. He cites a passage in Francisco Peña’s “Introductio” setting constituuntur parallel to interrogantur.33 Thus consitutus and vocatus mean nearly the same thing. The support Beretta offered for this conclusion may be a little thin, but it at least indicates the functional equivalence of the two terms as indicating that a person had become involved in a legal proceeding.
In order to incorporate this range of meanings, I suggest that constitutus is best translated as “established,” which has the advantage of being a plausible extension of its classical sense of “to cause to stand.”34 In a legal document, then, it indicates a person’s change in status qua legal subject (but apparently usually stopping short of his transformation into witness or deponent, which happened only after taking the appropriate oath) and thereby indicates the legal nature of the proceeding. Its predicate in this phrase of the precept is Galileo and in tandem with adhuc ibidem praesenti, the key word being the adverb adhuc (“still”), it signifies that at least the notary regarded both Bellarmino’s and Seghizzi’s actions as part of the same legal proceeding. Furthermore, those two words exclude the possibility of a charitable admonition, an act that by design never had legal significance. This problem will receive more attention below and in the next chapter.
The attack on the precept minute followed two lines, advanced most influentially by Emil Wohlwill.35 He maintained that it was a forgery and, even if not, legally illegitimate. Both criticisms turned on a key point, the lack of the witnesses’ signatures. Although the forgery thesis proved popular for a long time, only two historians still seriously entertain it, Francesco Beretta and Vittorio Frajese, the first much better informed than the second and oddly the man who has done most to demonstrate the unlikelihood of his contention. His case depends on neither palaeographical nor codicological grounds but on an argument lifted from Wohlwill without acknowledgment about the contradiction between No. 3 and No. 1, leading to the slippage between No. 2’s two actions. Beretta calls the “material authenticity” of its second half “very problematic,” before concluding that it was forged in 1632 in order to extricate from trouble the man who had licensed the Dialogue.36
Beretta admits that the palaeographical and codicological evidence is against him. Thus, all of No. 2 “appears” to be in the hand of Andrea Pettini, the chief notary in 1616.37 Furthermore, he concludes on formal grounds that the first half of the precept minute is authentic, and does not criticize the second in these terms.38 He also disproves the theory that the document was interpolated into the dossier at a later date.39 Finally, Beretta shows that witnesses’ signatures would not have been expected on a document like No. 2, an imbreviatura or minute.40 Its authenticity derived not from those signatures but from the notary’s, which Beretta claims normally occurred only once per dossier, at the bottom of the front cover.41 Galileo’s file lacks such a signature. Beretta rather tendentiously maintains that either Pettini never signed it or his signature had already been torn off before Galileo was sentenced, making the outcome illegal. This point signifies little, since it is impossible to say when the damage occurred.42 Nor, given the loss of nearly all the Inquisition’s processi, can Beretta cite evidence for his description of normal practice in cases like Galileo’s. He seems instead to base himself on the files in Trinity College Dublin, MS 1232.43 This comparison may not hold up, since these dossiers (1) concern suspects who appeared spontaneously before the Inquisition and, therefore, merited substantially different treatment from other accuseds, which may well mean that their records were handled differently; and (2) include multiple proceedings, not one.44 Nor even on these dossiers is the (same) notary’s practice uniform. Some signatures appear to be autograph for example, fo. 1r), others fair copies probably written by a substitute notary (for example, fo. 9r). In short, neither the signatures of the witnesses—which would not have been expected—nor the notary’s—which, unlike the witnesses’s, may really be missing—effect No. 2’s authenticity.
Monitio caritativa or Fraternal Correction?
Many commentators read No. 1 as ordering a two-phase proceeding, a “warning” by Bellarmino, followed by a precept from Seghizzi. No one before Beretta had tried to explain that “warning.” He identified it as a caritativa monitio recorded in the authentic part of No. 2. Bellarmino did not take even the next step, a denunciatio evangelica, much less administer or countenance the administration of a precept.45 This assertion drives Beretta’s case for forgery.
As little as has been said about precepts in connection with Galileo’s trial, until Beretta’s thesis almost nothing had been entered into evidence about either admonition or “evangelical denunciation” (denunciatio evangelica).46 His discussion draws mainly on three works, Sigismondo Scaccia’s Tractatus de iudiciis, Francisco Peña’s unpublished “Introductio, sive Praxis Inquisitorum,” and Prospero Farinacci’s Tractatus de haeresi. All are roughly contemporary with the beginning of Galileo’s trial, and all constitute reasonably weighty sources. The author of the first had experience as inquisitor of Malta, and Peña had sat for years as a consultor to the Roman Inquisition in his capacity as dean of the Rota.47 Farinacci had never had any position in the Inquisition, but he had been for a long time the fiscal general (roughly chief prosecutor) for the city of Rome; his book was dedicated to the Congregation of the Inquisition, and he claimed that Bellarmino had read it.48 All three agreed that the essence of a monitio caritativa was secrecy in order to protect the sinner; for just that reason, it preceded the denunciatio. They also all agreed that heresy did not require such a monitio because it was a public crime.49 Beretta saves what looks like an unpromising situation by noting that prior to such an admonition ignorance excused misdeeds, but not afterward. Thus Galileo, charitably warned, amended his ways especially by protesting at the beginning of his Dialogue on the Two Chief World Systems that he always intended to submit to the Church’s judgment. Had he persisted in error after such an admonition, that would have constituted pertinacy that became heresy.50 Thus by implication since Galileo got only an admonition, he could not have been accused (even tacitly) of heresy, and the entire
