The decretum of 3 March might seem the most authoritative text since it records what happened at the Inquisition’s Thursday meeting with the pope, when it made its most important decisions.18 Inclusion in the decreta converted the act into a precedent, on which the Inquisition relied nearly as much as common lawyers do.19 Although both points have significance, neither bears as much weight as might at first appear. Above all, the decreta were frequently sloppily kept.20 The minute of Paul’s order (No. 1), recording a direct if informal command from the pope via the Inquisition’s secretary to the two heads of its permanent staff, is a good example of the many notes in the decree registers scrawled in the margin or crammed in at the end of a meeting.21 Since it had not gone through the Congregation, the pope’s order need not have been recorded there at all, although more than a few similar acts were. As just one example, take the informational note exactly like No. 1 saying that Secretary Gian Garzia Millini “told me, the assessor, that the pope had ordered” that the Inquisition not accept recommendations, letters offering protection to suspects.22
Next, the way the Inquisition noted its decisions produced an important weakness in its records bearing directly on the status of No. 3, the only one of these documents explicitly to identify itself as a second-hand summary. The notary said he had transcribed a text given to him by the assessor, the permanent head of the Inquisition staff, who had jotted down what Bellarmino had said during the secret part of the Inquisition meeting from which the notary was barred.23 Quite apart from the strong suspicion that in some cases the assessor did no more than hand the notary the meeting agenda, perhaps with notes of action taken, perhaps in its original, unannotated form, so far as we know there was no procedure in place by which to check the accuracy of either the assessor’s jottings or the notary’s transcriptions of them.24 In this case, we need look no farther than the next clause of the same document for evidence of the confusion this clumsy second-hand recording could produce. In it the same notary, again allegedly working from the assessor’s notes, entered the Congregation of the Index’s order that Copernicus’s De Revolutionibus and two other books had been “prohibited and suspended, respectively” and then reversed the sequence of those words followed again by “respectively” at the end of the note. By also listing the books incorrectly relative to which was prohibited or suspended, the assessor/notary created an insoluble mess.25 There is every reason to think he/they did the same in No. 2, the precept minute. Besides, as its context shows, the decree of 3 March did not primarily concern Galileo, who appeared in it only as advance recipient of the Index’s action, so the notary (and maybe Bellarmino himself) worried less about getting what happened to him right. As Sergio Pagano also observes, Bellarmino was under no obligation in the first place to report in detail what had happened.26
The Precept Minute: A Forgery?
From the moment serious study of Galileo’s trial began in the late 1860s, document No. 2 has been the object of determined efforts to get rid of it because it does the most damage to Galileo.27 It posed an even greater danger than previously realized. Incredibly enough two words in it, et constituto, that would by themselves have settled once and for all what happened have been overlooked.28 They appear in the phrase recording Seghizzi’s action, “and afterward and incontinenti, in my and witnesses’ [presence], etc., still being then present the same illustrious lord cardinal [Roberto Bellarmino], the abovesaid father commissary [Seghizzi] ordered and ordered [sic] the aforesaid Galileo, still present et constituto” (“et successive ac incontinenti, in mei etc. et testium etc., praesenti etiam adhuc eodem illustrissimo Domino cardinali, supradictus Pater Commissarius praedicto Galileo adhuc ibidem praesenti et constituto praecepit et ordinavit”) to abandon his Copernican beliefs. Constitutus, literally “constituted,” is the vital term. It regularly appears at the beginning of a deposition or interrogation before the Inquisition and other courts and led to records of them being known as constituta. Galileo’s contemporary Sigismondo Scaccia unhelpfully said that definition arose because constitutus was their first word.29 It also appears frequently in canon law in several 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