The Roman Inquisition. Thomas F. Mayer

continenti, it appeared a number of times in Justinian’s Code with such a variety of possible meanings as to generate a substantial amount of jurisprudential commentary.¹¹⁷ Alberico da Rosate (ca. 1290–1360) offered one of the most detailed discussions in his Dictionarium iuris tam civilis, quam canonici, which went through many editions.¹¹⁸ He gave an almost bewildering number of definitions, most in the temporal sense from statim onward, and a number of cognates (all meaning at first glance “immediately”), extending all the way to three days as the time limit for revoking an attorney’s errors (citing C. 2. 9 and his own discussion in Commentariorum iuris utriusque summi practici Domini Alberici de Rosate Bergomensis pars prima super codice).¹¹⁹ His gloss on confestim, one of the synonyms he suggested for incontinenti, defined it again as sometimes statim, but sometimes ten days. The word also had nontemporal meanings, especially continuus, without any “extraneous acts.” In this case, the time period might be left entirely undefined; Alberico again suggested the figure of ten days. In his third entry he gave the example of merchants going off in search of a notary or a celebratory drink at the conclusion of a deal, both (especially the second) denoting a possibly protracted interval of time. Other commentators often cited Alberico’s three days in the case of a man who died that long after being wounded.¹²⁰ Others stretched the time indefinitely, for example, the great late fifteenth-century canonist Felino Sandeo, who left it up to the judge’s decision how long an heir had to prove his claim incontinenti.¹²¹ The eminent late sixteenth- or early seventeenth-century jurist Giacomo Menochio did the same in his most popular work, throwing out “one day,” “three days” or “two months” as possibilities.¹²² He also offered almost exactly the same definition as Beretta, citing Bartolo Da Sassoferrato: “before it [the trial] can be diverted to extraneous acts” (“antequam ad actus extraneos divertatur”).¹²³ The exhaustive note in Repertorium Inquisitorum said virtually the same thing, although in the specific case of ratification of a confession given under torture it was much more restrictive, saying incontinenti meant “intra diem,” “within a day.”¹²⁴ In short, the general opinion was that the word “receives a varying interpretation according to the matter … and we [in this case Bernabé Brisson, but it could be any of a number of commentators] interpret it with some modest space of time.”¹²⁵ German commentators introduced a distinctive subtlety, saying the term should not be interpreted literally but instead civiliter, moraliter leaving its precise temporal component to the judge’s discretion, as Sandeo and Menochio had thought.¹²⁶

      An Elegant but Wrong Solution

      In 1987, Thomas Kurig, now an intellectual property lawyer, proposed a radically new translation as a solution to the problem. His argument depended on two grammatical points. “Immediately” (“gleich darauf” in German) is mistaken and ignores “ac incontinenti.” “Successive” should be translated not in a temporal sense but as “following thereon (expressing the papal will),” while “ac incontinenti” is a causal dative modifying “Galileo” and the phrase should therefore be rendered as “since Galileo was unwilling” or “being impudent.”¹²⁷ The first of these at least raises a question about the usual translation. No doubt because of the incorrect linkage to “incontinenti,” “successive” lost its simple meaning of “after” with no necessary implication of “right after.” Kurig’s second point appears even more vital, if not as original as he claims; it had been made if not published already in 1964.¹²⁸ By almost literally translating “si recusaverit” of No. 1, “incontinenti” would remove the most important contradiction between it and No. 2. That contradiction has been overdrawn even without the correct translation of “incontinenti,” because “recusaverit” need not mean “refuse.” “Recusare” principally means “to object,” but it also has the sense “to be reluctant” or “unwilling.” I do not need to belabor the point that this last meaning agrees exactly with “incontinenti” as translated by Kurig. Thus Galileo would not have had to do anything more than hesitate to obey or give some sign of annoyance, and Seghizzi would have thought himself within his rights to give the precept.

      Unfortunately, Kurig’s elegant solution is wrong. I have found no other instances of incontinenti used in the way he suggests, in a search of the Patrologia latina database, a less systematic survey of other medieval and early modern writing, or, most important, among lawyers. Nowhere in their extensive attention to the word is a definition like Kurig’s so much as hinted at. More curiously yet, none of the commentators I have checked discuss the phrase successive ac incontinenti.

      Thus we know much more about the meaning of incontinenti than of successive. Unfortunately, we know least of all about the phrase successive ac incontinenti. Wohlwill correctly identified successive ac incontinenti as a “formula” that he translated in a number of ways.¹²⁹ As far as anyone now knows, it appears for the first time in the precept minute and might therefore have been invented specially for Galileo.¹³⁰ (I hasten to add that I make this point facetiously to underscore another crucial gap in our knowledge.) The only evidence I have found in sources generated by the Roman Inquisition comes from Trinity College, Dublin, MS 1232, which postdates Galileo’s trial.¹³¹ Unlike most of these volumes, it is composed of case files rather than sentences. Beretta looked it over, but confined himself to the two instances of successive ac incontinenti, ignoring other terms used in similar ways that may help to define the phrase. The first of the two occurrences he did discuss is much like the one in Masini in which a prisoner confronted another prisoner; that is, some indeterminate interval of time must have intervened between two acts. The phrase follows the accused’s signature at the end of a verbale with the note that he was returned to prison and successive ac incontinenti searched.¹³² The other case is even less help, except that there are two other phrases on the same page that appear to serve the same function. The passage begins with “successive et immediate ubi coram S. fuit ei dictum per Dominum an velit repeti testes examinatos in presenti causa quia dabuntur, etc.” (“successive ac immediate where in the presence of his Holiness the lord [cardinal] said to him whether he wished the witnesses examined in the present case to be reexamined”), to which the accused replied in the negative: “Successive et incontinenti supradictus D. fuit ipsi (?) assignatus terminus decem dierum ad faciendum suas defensiones” (successive et incontinenti the abovementioned lord [cardinal] had assigned him [the suspect] a term of ten days to making his defenses), which he also declined: “Deinde mandavit dominus reponi ad locum suum” (“Then the lord [cardinal] ordered him put back in his place”).¹³³ Thus we have incontinenti parallel to immediate but also to deinde, which simply means thereafter, almost the same thing as successive. There are many cases where deinde or even more basically tunc (then) do the work that successive ac incontinenti sometimes do.¹³⁴ In an intensive and extensive search in other sources, I have found all of three occurrences in addition to the three just cited. One instance, missing any conjunction, comes between the end of one deposition and the beginning of the next in a processo in Archivio di Stato, Venice, Santo Uffizio, b. 71, an unnumbered and unfoliated piece dated 4 October 1651 at the head. The other two have a conjunction, in the first case of 1630 in the middle of the conferral of a laurea in philosophy at La Sapienza, the second between the first and second questions of the suitability hearing of an auditor of the Rota dating from 1632.¹³⁵ In short, the translation of successive ac incontinenti as “immediately thereafter” is open to doubt.

      Seghizzi’s Career and Its Reflection on His Administration of Galileo’s Precept

      The legal impropriety hypothesis demands as a corollary that Seghizzi acted illegally and to say the least incautiously. None of those who defend this thesis have investigated Seghizzi’s tenure as commissary or the rest of his career.¹³⁶ His tombstone in the cathedral of Lodi encapsulates his success as an inquisitor, calling him “hammer of heretics.” Of course, a hammer can be wielded in any number of ways, including by a homicidal maniac. This was not Seghizzi’s style. Quite the contrary. He was a stickler for proper procedure, of which he had a good deal of experience, beginning as socio of the commissary in Rome from 1601 to 1603.¹³⁷ Then he was made inquisitor of Cremona