ugh the Roman
law was in part responsible. Anselm of Lucca and the author of the
_Panormia_ (Ivo of Chartres?) had copied word for word the fifth law
of the title _De Haereticis_ of the Justinian code, under the rubric:
_De edicto imperatorum in damnationem haereticorum_.[1] This law which
decreed the death penalty against the Manicheans, seemed strictly
applicable to the Cathari, who were regarded at the time as the
direct heirs of Manicheism. Gratian, in his Decree, maintained the
views of St. Augustine on the penalties of heresy, viz., fine and
banishment.[2] But some of his commentators, especially Rufinus,
Johannes, Teutonicus, and an anonymous writer whose work is inserted
in Huguccio's great _Summa_ of the Decree, declared that impenitent
heretics might and even ought to be put to death.

[1] Tanon, op. cit., pp. 453-454.

[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, Mign