Chapter 14

Student: AS MUCH AS I understand, that second assertion still pleases me more. Indicate, therefore, how they try to reply to the opposing arguments.

Master: Some reply to the first [argument] by saying that although in general it is chiefly theologians who ought to know who should be judged pertinacious, yet in some circumstances canonists reflect more purposefully on some particular way of convicting an errant of pertinacity (though, also, if doubt and disagreement about this way were to arise among canonists it would pertain to theologians, by applying theological and universal [principles] to these particulars, to judge more profoundly and surely , although perhaps after a drawn out and long investigation and consultation). Thus they say that there are many ways of arriving at knowledge of the pertinacity of someone erring against the faith, some of which have regard to the order of legal proceedings, for instance, if an errant called to trial refuses to come, if he comes but refuses to reply, if he wickedly tries to evade the trial and examination. Now, canonists deal more explicitly than theologians with such ways of convicting heretics with respect to many circumstances that pertain to the order of legal proceedings. Yet in general and with respect to many other ways of convicting of pertinacity it pertains more to theologians to deal with pertinacity.

Student: Can anyone be convicted of pertinacity outside a court?

Master: No one is convicted by the authority of office outside a court, or without the authority of a judge; nevertheless, someone is convicted outside a court in so far as his evil comes so much to the knowledge of others on the evidence of the facts that it is permissible without temerity to regard him as a pertinacious heretic.

Student: Speak to the form of that first argument

Master: In respect of its form it is said that when it is taken [as a premise] that no one erring against the faith should be judged as pertinacious except someone who defends his error once he has been corrected by his prelate, this is manifestly false, because there are other ways outside any court of detecting someone in error due to obvious pertinacity. For theologians, not canonists, would detect as obviously pertinacious anyone who swore to defend forever some heresy not mentioned in the decretals or in the whole science of the canonists but only in theology.

To the second argument it is said that all contumacy is pertinacity, but not all pertinacity should be regarded as contumacy in the strict sense. And therefore even if it were canonists who chiefly reflect on contumacy, it does not follow that they should chiefly investigate pertinacity, because often a superior science deals with universals and an inferior one with particulars. Neither do Gregory and Augustine say that all pertinacity is contumacy, although they mean that heretics should often be judicially condemned for contumacy.

They reply to the third argument that he to whom the punishment of any crime pertains to him too some kind of cognizance, at least of a general and confused kind or of a kind which is received from another, of the same crime pertains; but it is not necessary that a scientific investigation or a subtle and profound cognizance of the same crime pertain chiefly to him. For the ultimate punishment of a heretic who refuses to retreat from his error after he has been relinquished to a secular court pertains to a secular judge, and yet it does not pertain chiefly to a secular judge to know who should be regarded as a heretic. Secular judges also ought to punish with an appropriate penalty those who forge money and artisans who make forgeries contrary to their art, and yet moneyers and artisans detect more acutely than judges forged money and other goods. So although canonists reflect on how those who are pertinacious in error against the faith must be punished justly, theologians do nevertheless detect much more surely those who err in pertinacity, just as those who hang thieves know better than judges how thieves ought to be hanged, yet know less the seriousness of the villainy.