[2] Decretum, 2 Pars, Causa xxiii, quest. 4, 6, 7.
These different works appeared before the Lateran Council of 1215.[1] They are a good indication of the mind of the time. We may well ask whether the Archbishop of Rheims, the Count of Flanders, Philip Augustus, Raymond of Toulouse, and Pedro of Aragon, who authorized the use of the stake for heretics, did not think they were following the example of the first Christian emperors. We must, however, admit that there is no direct allusion to the early imperial legislation either in their acts or their writings. Probably they were more influenced by the customs of the time than by the written law.
[1] The collection of Anselm of Lucca is prior to 1080. The _Panormia_ was written about the beginning of the twelfth century; the Decree about 1140; the three commentaries were written a little before 1215.
As a matter of fact, Gratian, who with St. Augustine mentioned only fine and banishment as the penalties for heresy, was followed for some time. We learn from Benencasa's _Summa_ of the Decree that heretics were punished not by death, but by banishment and confiscation of their property.[1]
[1] _Biblioth. Nation_., Ms. 3892, _Summa_ of Benencasa: 41, cap. 23, q. 4, _Non invenitur_.
The Councils of Tours and Lateran also decreed confiscation, but for banishment they substituted imprisonment, a penalty unknown to the Roman law. The Council of Lateran appealed to the authority of St. Leo the Great, to compel Christian princes to prosecute heresy.[1]
[1] Canon 27, Labbe, _Concilia_, vol. x, col. 1522; Leonis, Epist. xv, ad Turribium, Migne, _Pat. Lat_., vol. liv, col. 679-680.
From the time of Lucius III, owing to the influence of the lawyers, the two penalties of banishment and confiscation prevailed. Innocent III extended them to the universal Church.
This was undoubtedly a severer penal legislation than that of the preceding age. But, on the other hand, it was an effective barrier against the infliction of the death penalty, which had become so common in many parts of Christendom.
Besides, during this period, the Church used vigorous measures only against obdurate heretics, who were also disturbers of the public peace.[1] They alone were handed over to the secular arm; if they abjured their heresy, they were at once pardoned, provided they freely accepted the penance imposed upon them.[2] This kind treatment, it was true, was not to last. It, however, deserves special notice, for the honor of those who preached and practiced it.