This ingenious theory will not stand close examination. There is in the first place the _prima facie_ probability that an unorthodox emperor, anxious to utilize the question of heresy in a conflict with the papacy, would rather protect than prosecute it. In the second place, there is really no evidence for discovering in Frederick’s action an elaborate Machiavellian device; while we have sufficient evidence that Gregory did approve the burning of heretics.[317] There seems clearly to have been clerical influence behind the constitutions. The constitution of 1224 has been ascribed to the influence of a certain German prelate, Albert, Archbishop of Magdeburg, imperial legate in Italy, who wanted to see heretics treated in Italy as they were in his own country, and who therefore induced the emperor to give legal sanction to the death penalty.[318] Even more significant would appear to have been the part played by the Spanish Dominicans, Guala and Raymond of Peñaforte. Guala was Bishop of Brescia in 1230, and Brescia was the first town to place among its municipal laws the Lombard Constitution of 1224. The Bishop was in constant communication with Gregory, and when Rome followed the example of Brescia, it is surmised, though it cannot be proved, that Guala was responsible for this, as also for the Constitution of 1231.[319] This is conjecture, and so is the alternative theory which attributes the legal establishment of the death sentence not so much to Guala as to Raymond.[320] Whatever may be the truth concerning clerical influence prior to the promulgation of the Constitutions, the question of the subsequent attitude of the Church towards them is not a matter of conjecture. In his bull, _Excommunicamus_, Gregory orders that heretics, condemned by the Church, shall be handed over to the secular arm and punished by the merited penalty (‘puniantur animadversione debita’). What this punishment is, is not expressly mentioned, but inasmuch as all other possible penalties are mentioned by name—imprisonment, excommunication, infamy, deprivation of civil rights etc., we are left by a process of elimination with the death penalty as the only conceivable end for the obdurate heretic abandoned to the secular arm.[321] Only wilful blindness can misinterpret the phrase ‘animadversione debita,’ especially as its meaning seems to be forcibly illustrated by the practice of the Senator Annibaldi who ruled Rome in Gregory’s name. In 1231 he issued a decree, introducing the imperial constitution into the city and establishing that each senator, on admission into office, must pronounce the ban of the city against all heretics in it, seize upon all who are pointed out as heretics by the inquisitors and punish them within eight days from the passing of sentence. Here Annibaldi used the Pope’s euphemism, ‘merited penalty.’ The same year several heretics were seized in Rome, some imprisoned, but the obdurate burnt.[322]