Post-classical history


Canonical Courts and Procedure

The Church’s courts addressed the transgressions of both laity and clerics and did so using procedural processes, which themselves were not stagnant but rather adapted over time. This chapter begins by laying out the various ecclesiastical courts, their personnel, and their purpose. Diocesan and synodal courts served in most cases as the court of first instance with the court of the archbishop, or metropolitan’s court, serving as a court of appeals or court of first instance in egregious cases. The pope exercised both original and appellate jurisdictions over controversies from every part of Western Christendom and his standing as the ultimate appeals judge of the Latin church was one of the principal sources of papal power.1 By 1325, the decisions of the papacy’s judicial forum, the Roman Rota, had overtaken decretal letters as the principal means for legal innovation in the Western church. The papacy’s penitential forum, the Apostolic Penitentiary, served as the “tribunal of conscience”. Like canonical collections, the courts evolved into a systematic structure. They would come to use Romano-canonical rules to settle the disputes brought before them and to impose disciplinary sanctions upon those who infringed the Church’s rules of behavior. As procedure evolved, procedural manuals helped legal experts navigate these waters. The second part of this chapter thus turns from courts to procedure. It explains the evolution of the principles of due process, the different types of procedure, the course of a trial, and the development of procedural manuals used by officers of the court.

1 Original jurisdiction is when the court is hearing the case for the first time. Appellate jurisdiction is when a court is hearing an appeal on a ruling made in a lower court.

At the local level, bishops through the twelfth century usually treated dispute resolution as one duty among many in the ordinary course of business. Bishops themselves could be legal experts as a result of long experience in dealing with the problems that came before them almost daily.2 Some bishops, notably Hubert Walter, archbishop of Canterbury (d. 1205), had resident canonical experts in their households to guide them through the legal maze. Bishops who faced a particularly delicate or perplexing legal problem had the option of convening a synod to deal with the matter. Synods were general assemblies of the clergy within a diocese or region. Their meetings provided a forum where clerics and their bishop could consult one another about current issues. The synodal canons or decrees adopted dealt with recurring problems. Synods could also conduct judicial hearings when the bishop needed or wanted the clergy of his diocese to participate in settling particularly difficult or important controversies. A synod could thus double as a court to which the bishop could refer legal issues of general interest or great importance—or matters for which he did not wish to bear sole responsibility.

2 While focused on the period 1563 to 1615, T. Deutscher’s Punishment and Penance: Two Phases in the History of the Bishop’s Tribunal of Novara (Toronto, 2013) is an excellent study on an episcopal court’s adjudication of cases involving the clergy and the laity.

Bishops and synods remained the principal agents for the adjudication of canonical issues during the twelfth century and continued, in some places, to play judicial roles well beyond that period. Such arrangements became increasingly unsatisfactory, however, as canon law itself grew ever more complex and voluminous. Bishops, busy with other administrative and political concerns, could not readily find either the time or the patience to sit in judgment hour after hour, day after day, on routine disputes among members of their flock. Synods were expensive and time-consuming since holding one required dozens or even hundreds of clerics to absent themselves from their regular duties, often for considerable periods of time, to make the journey, participate in the synod, and then return home. The situation was equally frustrating from the viewpoint of litigants. They might have to follow the bishop for days or weeks on his peregrinations from one parish to the next, waiting for him to find time to deal with their complaints. Summoning a synod compounded the problem and exposed litigants to even greater delay and expense.

Between the closing years of the twelfth century and those of the thirteenth century, judicial personnel became more specialized. Bishops in many parts of Christendom began to delegate most of their judicial duties to the “officiality” (officialis). The “officials” (officiales) were men who had formal training in law and often served as full-time judges functioning as the bishop’s judicial delegate.3 Advocates, lawyers who often boasted advanced degrees in canon or civil law, and sometimes in both, advised clients as officers of the court about technical questions of law, prepared the formal submissions that procedural law required, and presented legal arguments on behalf of their clients. An iurisperitus, a legal counsellor who was often also an advocate, supplied a formal written opinion (consilium) at the request of either a judge or an individual litigant. Iurisperiti might also be employed to analyze the testimony of witnesses and other evidence, and to supply the legal arguments (allegationes) that supported the view of their client and then present that view orally and in writing to the court. Unlike the advocates and iurisperiti, proctors were not expected to be legal experts and hence depended less on academic credentials and more on their practical ability to manage litigation and to guide litigants successfully through the procedural and bureaucratic labyrinths of the court. Their expertise lay with the technicalities of courtroom practice. Proctors could prepare procedural documents, locate witnesses, and make court appearances on their client’s behalf. Notaries possessed a combination of formal academic study of the ars notariae, which dealt with the forms and contents of legal documents, and apprenticeship in a chancery or court. The documents notaries drafted had the standing of public instruments and judges normally accepted them as prima facie evidence that the transactions they recorded had taken place as described.4

3 M. Burger, Bishops, Clerks, and Diocesan Governance in Thirteenth-Century England Reward and Punishment (Cambridge, 2012), 6; M. Vleeschouwers-Van Melkebeek, Le tribunal de l’officialité de Tournai et les comptes du scelleu, Introduction, édition et traduction française (Tournai, 2016) examines the fifteenth-century offficales’ records of the diocese of Tournai. The date and the name of the convicted, the reason of the conviction, whether punishment was imposed upon the condemned (financial fine or excommunication/interdict), and whether the fine was completely or at least partially paid are recorded.4 J. A. Brundage, “The Practice of Canon Law,” in HCP, 51–73, esp. 55–59; other positions included the registrar of the court who maintained the court’s records and apparitors (summoners) who served as court bailiffs. See K. L. Jansen, “‘Pro bono pacis’: Crime, Conflict, and Dispute Resolution: The Evidence of Notarial Peace Contracts in Late Medieval Florence,” Speculum 88 (2013): 427–456 for the role that notaries played in the resolution of conflict and the maintenance of peace outside of the judge’s courtroom.

The records of many local episcopal consistory courts typically lack a final decision. The records of the bishop’s court for the diocese of Ely (England) reveal that sometimes parties simply abandoned their cases part-way through the proceedings. In many instances they settled the matter out of court, and it is not unusual to find this indicated in a terse note by the recording clerk stating simply, “settled peacefully” (pax est) or “by agreement” (concordia est). The debt cases heard in the fifteenth-century bishop’s court of Carpentras (France) echo the preference of settlements. These cases often involved horizontal loans between social equals and loans from money lenders. They tended to be for a moderate amount and agreed upon through a verbal contract or a written contract signed by a notary, who was often a member of the clergy. As an agreed-upon obligation to repay another, the contract was a sworn oath and thus failure to fulfil one’s oath, failure to repay the debt, fell under the auspices of the bishop’s court. Carpentras’ register of cases reveal that lenders used the court as a vehicle for pressuring borrowers to admit their debt and agree upon a resolution. The episcopal consistory court was a forum for bringing conflicts to a close through peaceful means.5

5 For the diocese of Ely, see J. A. Brundage, “The Bar of the Ely Consistory Court in the Fourteenth Century: Advocates, Proctors, and Others,” JEH 43, no. 4 (1992): 541–560. For the diocese of Carpentras, see E. Hardman, Conflicts, Confessions, and Contracts: Diocesan Justice in Late Fifteenth-Century Carpentras (Leiden, 2017). See also T. Lange, Excommunication for Debt in Late Medieval France (Cambridge, 2016).

Lesser prelates, such as archdeacons and occasionally rural or urban deans, in many regions developed additional courts of their own. These tribunals exercised jurisdiction over petty infractions of church law and heard lawsuits in which the property or other disputed issues seemed not sufficiently important to warrant taking them to the bishop’s consistory court. Much of the business of the lower courts involved enforcement of the Church’s disciplinary rules concerning sexual misbehavior, drunkenness, marital disputes, infractions of the Church’s prohibition of work on Sundays and feast days, and the like. The archdeacon’s court touched matters of personal conduct and morality in particularly intimate ways and laypeople often resented this intrusion into their daily lives and domestic relationships. People further suspected (perhaps with good cause) that local bigwigs and men of means could persuade archdeacons to overlook their own misdemeanors by a judicious use of gifts, bribes, and other inducements. Suspicions of venality and corruption contributed further to the unpopularity of archdeacons and other minor prelates who exercised jurisdiction at the local level. Since archdeacons, like bishops, were often men of importance with numerous other demands on their time, they, too, sometimes appointed an official (officialis) of their own—often men with formal legal training—to exercise their judicial functions.

Inevitably, there were parties who appeared before the lower courts and left displeased with the outcome of the litigation in which they were involved. For those who were sufficiently unhappy to pursue the matter further, litigants had numerous potential avenues for appeal to higher canonical courts. Archbishops (also known as metropolitans) had their own consistory court to hear controversies that arose within the boundaries of the diocese over which they presided. Alternatively, the aggrieved litigant could appeal to the papal courts, either after or in place of appealing to the metropolitan’s court.

Popes, like other bishops, for centuries exercised their judicial functions in person and routinely spent numerous hours almost every day attending to the complaints of litigants, the arguments of advocates, and the advice of their own legal counsellors. By the mid-twelfth century, however, the pope’s judicial duties threatened to overwhelm the rest of his responsibilities. Concerned churchmen urged that he cut back on this part of his duties and delegate all but the most essential judicial tasks to others. St. Bernard of Clairvaux (d. 1153) admonished his former pupil, Pope Eugene III (d. 1153):

I ask you, what is the point of wrangling and listening to litigants from morning to night? And would that the evil of the day were sufficient for it, but the nights are not even free!… One day passes on litigation to the next, one night reveals malice to the next; so much so that you have no time to breathe, no time to rest and no time for leisure. I have no doubt that you deplore this situation as much as I, but that is in vain unless you try to remedy it… Patience is a great virtue, but I would hardly have wished it for you in this case.6

6 St. Bernard of Clairvaux, “De consideratione ad Eugenium Papam,” 1.3.4–1.4.5, in Bernard’s Opera, eds. J. Leclercq, C. H. Talbot, and H. M. Rochais (Rome, 1957–1977), 3:397–399. For the translation, see J. D. Anderson and E. T. Kennan, Five Books on Consideration: Advice to the Pope (Kalamazoo, 1976), 29–30.

Despite entreaties such as these, late-twelfth-century popes continued to contend with a rising tide of litigation. They secured a measure of relief by appointing ever-greater numbers of men with legal training to the College of Cardinals and relying increasingly upon the advice of the cardinals who assisted them in hearing cases in what came to be called the Roman consistory. The consistory replaced the old synod of the Roman clergy, which under Gregory VII (d. 1085) had become primarily a court of justice. In the new judicial structure, the pope met daily with the cardinals and other advisers. There the whole group heard arguments and appeals, which the pope then decided in consultation with the cardinals. The consistory was thus a judicial body in which the cardinals sifted through the arguments and issues that litigants raised and advised the pope about his options in disposing of the matter before them. This arrangement shifted the burden of the preliminary analysis of disputes from the pope to the cardinals, but still left the final determination of each case in the pope’s hands. Although the consistory eased the burden of the pope’s personal involvement in the judicial processes, it still required a massive commitment of papal time. Other papal business—political, diplomatic, financial, and religious—urgently demanded attention.

Judicial offices developed during the thirteenth and fourteenth centuries to distribute the papacy’s workload. The Audientia litterarum contradictarum screened the issuance of papal mandates and regulated the activities of the proctors who represented clients and managed their business at the curia.7 The Referendarii signaturae evolved from a group of clerks in the papal consistory who prepared documents for the pope’s signature to one that drafted replies to petitions and determined which appellate cases were sufficiently important or meritorious to warrant the pope’s personal attention. By the late Middle Ages, it would morph into the Signatura iustitiae, the highest-ranking papal appellate court.8 The pope’s chief fiscal officer, the chamberlain (camerarius) who oversaw the financial office of the camera, appointed a hearing officer (auditor) to adjudicate disputes that arose out of financial operations and eventually to deal also with disciplinary problems among members of the papal curia.9

7 P. Herde, Audientia litterarum contradictarum: Untersuchungen über die päpstlichen Justizbriefe und die päpstlichen Delegationsgerichtsbarkeit vom 13. bis zum Beginn des 16. Jahrhunderts, 2 vols (Tübingen, 1970).8 R. Puza, “Signatura iustitiae und commissio: Ein Beitrag zum Prozeßgang an der römischen Kurie in der Neuzeit,” ZRG Kan Abt. 64 (1978): 95–115; R. Naz, “Signature apostolique, Tribunal de la,” in DDC, 7:1012–1018.9 D. Williman, “Summary Justice in the Avignonese Camera,” in Proceedings Berkeley 1980, 437–449. For an overview of the camera as the financial wing of the papal curia, see S. Weiß, “The Curia: Camera,” in A Companion to the Medieval Papacy: Growth of an Ideology and Institution, eds. K. Sisson and A. A. Larson (Leiden, 2016), 220–238; and I. S. Robinson, The Papacy, 1073–1198: Continuity and Innovation (Cambridge, 1990), 244–291.

A part of the papal curia by the fourteenth century, the penitential forum of the Apostolic Penitentiary and the judicial forum of the Roman Rota stood at the apex of the ecclesiastical corrective system. Like the episcopal consistory court, both courts relied on the services of auditors and freelance proctors who hovered around the courts to represent the litigants.10 Though it neither held court sessions nor made decisions about the guilt or innocence of the litigants petitioning it in the same manner as the Roman Rota, the Apostolic Penitentiary served as the court of conscience (forum conscientiae) and the court of grace (forum gratiae). As the court of one’s conscience, the Apostolic Penitentiary corrected errant behavior for the salvation of the penitent’s soul through the absolution of sins and ecclesiastical censures reserved for the pope. It issued indulgences, letters of confession, and dispensations from ecclesiastical law. Examples of the wide range of cases the Penitentiary would hear include: illegal marriages from consanguinity and affinity, those closely related to a previous fiancé(e), spiritual affinity, and adoptive relationship; illegitimacy of children; monastic issues pertaining to observing vows and changing houses; breaking oaths or vows; simony, irregular promotion, and creating a career for illegitimate children; exercising clerical offices under excommunication; excommunication for failing to pay annual payments to the church; violence and murder; sacrilege against church property or persons; and apostasy. The graces granted were of four types: special absolutions to Christians who had violated the rules of canon law in an especially severe way; dispensations to those Christians who needed for some good reason to act against the norms of the Church and where the Church could grant them the possibility to do so; licenses to Christians who wanted to deviate from some usual Christian practice; and letters of declaration granting Christians some exemption, such as consuming dairy during Lent.11

10 For an introduction in English to the fees charged by the Papal Penitentiary under Benedict XII and Leo X, see W. P. Müller, “The Price of Papal Pardon: New Fifteenth-Century Evidence,” in Päpste, Pilger, Pönitentiarie: Festschrift für Ludwig Schmugge zum 65. Geburtstag, eds. A. Meyer, C. Rendtel, and M. Wittmer-Butsch (Tübingen, 2004), 457–481.11 B. Schwarz, “The Roman Curia (until about 1300),” in HCP, 160–228, esp. 215–216; K. Salonen, “The Curia: The Apostolic Penitentiary,” in A Companion to the Medieval Papacy, eds. Sisson and Larson, 259–275, esp. 266 n.25 for printed edition of penitentiary registers; K. Salonen and L. Schmugge, A Sip from the “well of grace”: Medieval Texts from the Apostolic Penitentiary (Washington, DC, 2009). German areas, such as Speyer, would request and be granted a dispensation, often called “butter letter”, to consume butter during Lent because of the scarcity of olive oil; see M. Klipsch, “Vom Fasten bei Wasser und Brot bis zum Fleisch- und Buttergenuss. Spätmittelalterliche Buß- und Fastenpraxis im Spiegel kurialer Registerüberlieferung,” in Friedensnobelpreis und historische Grundlagenforschung: Ludwig Quidde und die Erschließung der kurialen Registerüberlieferung, ed. M. Matheus (Berlin, 2012), 279–302, here 295–299. See also P. D. Clarke, “Between Avignon and Rome: Minor Penitentiaries at the Papal Curia in the Thirteenth and Fourteenth Centuries,” Rivista di storia della Chiesa in Italia 63 (2010): 455–510. For case studies of dispensations in Scandinavia, and Central and Eastern Europe, see G. Jaritz, T. Jørgensen, K. Salonen, eds., The Apostolic Penitentiary in Local Contexts: --et usque ad ultimum terrae (Budapest, 2007). The Penitenzieria Apostolica, Registra Matrimonialium et Diversorum is an important source for penitential cases covering the period between 1409 and 1890. P. Thomas Wollmann, ed., “Literae” of the Apostolic Penitentiary “in partibus” (1400–1500): Ein Beitrag zur kurialen Diplomatik (Wiesbaden, 2021) compiled petitions from major and minor penitentiaries in the fifteenth century from Bavaria, Baden-Württemberg, and Austria.

The Sacra Romana Rota (Sacred Roman Rota), officially known as the Audientia sacri palatii, assumed an increasingly prominent role not only for clarifying existing law but also for creating new canonistic rules through judicial decision in the fourteenth century. It acted as the court of appeals for all lower—episcopal and archepiscopal—courts. For those who had the means (and connections) to take their case directly to the papacy and for those living in the diocese of Rome or in the Papal States, the Rota served as the court of first instance. In the case of those living in the Papal States, the Rota also adjudicated civil matters in addition to ecclesiastical matters. In general, however, the Rota is known to have heard cases litigating benefices, marriages, property, and other topics. At the turn of the sixteenth century, the vast number of cases—approximately 80%—involved ecclesiastical benefices.12 Most of the cases that came before the Rota originated in Italy and the Iberian Peninsula, followed by Germany and France. Eastern Europe and Britain account for a negligible number of cases—2% and 1%, respectively—appearing before the Rota. As we saw above in the examples of the episcopal consistory courts of Ely and Carpentras, litigants brought a case to court hoping for a resolution, which did not necessarily have to end with a court decision. In fact, most of the Rota cases seem not to have ended in a decision. Almost 50% of the cases concluded within a month, which is too short to see a case through from start to finish, and 74% concluded within six months.13 It seems that the reality of a papal tribunal may have been the motivation needed to bring cantankerous parties to the negotiation table.

12 In his study of papal criminal proceedings against prelates between 1198 and 1342, J. Théry-Astruc observed a similar trend. Dilapidatio—mismanagement of the churches secular holdings (temporalities)—accounts for more than a half of the charges levied, while charges of simony account for a third of the cases and sexual misconduct account for a quarter of the cases. See “The Papacy’s Criminal Proceedings against Prelates in the Age of Theocracy,” in Proceedings Toronto 2012, 875–889.13 K. Salonen, “The Curia: The Sacra Romana Rota,” in A Companion to the Medieval Papacy, eds. Sisson and Larson, 276–288; eadem, Papal Justice in the Late Middle Ages: The Sacra Romana Rota (London-New York, 2016).

The ordo iuris, the principle of due process, was central to court procedure. Whether known under cognate names of the ordo iudiciarius, as seen in canon law, or the ordo iudiciorum, as seen in Roman law, the ordo denotes the defendant’s presumption of innocence, privilege against self-incrimination, and right to confront an accuser in court.14 Even though the ordo was systematized in the early thirteenth century, the concepts contained therein were not new and date back to late antiquity. A text attributed to Sermon 351 of Augustine, which Isidore of Seville included in his Synonymia (II.86), used the expression ordo iudiciarius. Pope Gregory I made a similar alliteration when he stated that bishops should be deposed ordinabiliter.15 The rubric De ordine iudiciorum can be found in Justinian’s Codex (3.8). Gratian used ordo iudiciarius in the hypothetical of Causa 2, and Causae 2–6 are often referred to as the tractatus de ordine iudiciarius.

14 J. A. Brundage, “Full and Partial Proof in Classical Canonical Procedure,” The Jurist 67, no. 1 (2007): 58–71.15 L. Fowler-Magerl, Ordines Iudiciarii and Libelli de Ordine Iudiciorum: From the Middle of the Twelfth to the End of the Fifteenth Century (Turnhout, 1994), 20–21.

The protections guaranteed by the ordo can be found in Scripture. The canonist Paucapalea (ca. 1150) traced its origins to Adam and Eve in Paradise. Dissecting Genesis 3:9–12, he pointed to the different aspects of a trial. God had issued a summons for Adam to answer charges against him by asking “Adam ubi es? (Adam, where are you?)” Adam defended himself by blaming Eve: “My wife, whom You gave to me, gave [the apple] to me, and I ate it.” Essentially, even God could not pass judgment without first summoning defendants and hearing their pleas. Men, therefore, were also obliged to summon the litigants before judging. Stephen of Tournai (d. 1203) built upon Paucapalea—who had drawn on Deuteronomy 19:15 to justify that the testimony of two or three witnesses safeguarded truth—by assigning the appropriate legal term to each part of Adam and Eve’s trial. Adam had raised a formal objection (exceptio), to God’s complaint (actio). Adam then imparted the blame on Eve and the serpent. Stephen thus defined the ordo as:

The defendant shall be summoned before his own judge and be legitimately called by three edicts or one peremptory edict. He must be permitted to have legitimate delays. The accusation must be formally presented in writing. Legitimate witnesses must be produced. A decision may be rendered only after someone had been convicted or confessed. The decision must in be writing.16

16 Die Summa des Stephanus Tornacensis über das Decretum Gratiani, ed. J. F von Schulte (Giessen, 1891), C.2 q.1 s.v. an in manifestis (p. 158); K. Pennington, “The Jurisprudence of Procedure,” in HCP, 125–159, here 139.

The implication was that if God was required to uphold the rights of Adam and Eve then these rights transcended positive law and were protected under natural law. Pope Innocent IV (d. 1254) argued further that the prince, bound by natural law to render justice, could neither forego the judicial process nor ignore an action. A bit later Johannes Monachus (d. 1313), bishop of Meaux and an advisor to King Philip IV the Fair, expounded on the rights of the defendant with the notion of being “innocent until proven guilty.” In his decretal Rem non novam (1303), Pope Boniface VIII had upheld the validity of a papal summons regardless of whether or not the defendant knew of it. Johannes’s gloss of the decretal, however, noted that natural law safeguarded the summons. A pope, while above positive law, was not above natural law and thus could not circumvent this right. No judge, not even the pope, could pronounce a just judgment unless the defendant was present in court. He concluded that “a person is presumed innocent until proven guilty” (quilibet presumitur innocens nisi probetur nocens).17 Divine and natural law guaranteed one’s right to due process, and thus the right of people to pursue justice.

17 On canonistic use of Scripture for the origins of the ordo, see Pennington, “The Jurisprudence of Procedure,” in HCP, 125–159, here 137–139; idem, “Innocent until Proven Guilty: The Origins of a Legal Maxim,” The Jurist 103 (2003): 106–124; idem, “Due Process, Community and the Prince in the Evolution of the ‘ordo iudiciarius’,” RIDC 9 (1998): 9–47.

The ordo iuris represented the procedural rights owed throughout the judicial process in both ecclesiastical and secular courts. Between the twelfth and into the sixteenth centuries, there were two principal ways in which a case could be brought to court. The first method was with an accusation (accusatio), which had its origins in Roman law and had been adopted by ecclesiastical courts. In this method, the plaintiff (accuser, actor) was required to bring an accusation against another, the defendant (reus) either orally or in writing (known a libellus inscriptionis) to start the judicial process. In its original form, the plaintiff (accuser, actor) was subject to the poena talionis if he lost the trial; that is, if the accuser failed to prove his case against the defendant (reus), he would suffer the same penalty as the defendant had he been convicted. To some jurists, such as Tancred of Bologna (d. ca. 1236), the threat of the poena talionis protected would-be defendants from being dragged into the premature litigation as the accuser should think long and hard before filing formal charges. In reality, the stipulation had fallen out of disuse in many, though not all, ecclesiastical and secular courts by the twelfth century.18

18 O. Cavallar and J. Kirshner, Jurists and Jurisprudence in Medieval Italy: Texts and Contexts (Toronto, 2020), 319–321, 21.1 (pp. 338–351) provides Albertus Gandinus’s view on who may accuse, be accused, and how an accusation is made as found in his Tractatus de maleficiis; K. Pennington, “Introduction to the Courts,” in HCP, 3–29, here 4, 8–10.

The second principal method was the inquisitorial process (inquisitio), which allowed a judge to investigate a crime and summon the accused to court without an accuser submitting a formal written complaint. Innocent III’s canon Qualiter et quando (c.8) at the Fourth Lateran Council sanctioned the method for ecclesiastical courts to investigate criminous clerics, though secular courts adopted it soon after. Genesis 18:21 provided the theoretical framework for inquisitorial procedure: the outcries of the sins of Sodom and Gomorrah had reached heaven, thereby causing God to investigate the situation.19 Rather than needing an accuser, a judge could begin an action against a suspected perpetrator based on his or her publica fama or mala fama. One achieved such status either by being judged as “infamous by reason of law” (infamia iuris)—a result of a previous guilty verdict—or on account of one’s reputation within the community for chronic misconduct. In either case, even though no one had seen the accused perpetrator commit the crime, one’s reputation in the community made them the prime suspect. A judge initiated a case on account of one’s fama when a sufficient number of credible people knew of what happened and who had done it, but that knowledge neither came from the person who committed the act nor could it be traced back to one person who might be spreading false information. Essentially, fama weighed heavily in determining if the legal process would be triggered and, if it was, the judge could proceed by calling witnesses.20

19 Gen. 18:20–21.20 Cavallar and Kirshner, Jurists and Jurisprudence in Medieval Italy, 323–326, 21.1 (pp. 336–338, 354–374) provides Albertus Gandinus’s view on when an accusation is necessary and on the specifics of judicial inquiry in his Tractatus de maleficiis. See also L. Gutiérrez Masson, “Inquisitio, fama, evidentia: La contribución de Inocencio III a la teoria de la notoriedad del delito,” Vergentis no. 2 (2016): 293–308; Pennington, “Introduction to the Courts,” and “The Jurisprudence of Procedure,” in HCP, 4, 10–18; 142–143, 146–147, respectively; Brundage, “Full and Partial Proof,” 68–70; Théry-Astruc, “Fama: L’opinion publique comme prevue judiciaire: Aperçu sur la revolution médiévale de l’inquisitoire,” in La Preuve en justice: de l’Antiquité à nos jours, ed. B. Lemesle (Rennes, 2003), 119–147.

The judicial process that followed an accusation (accusatio) was similar for both civil and criminal cases. A civil case is one in which the plaintiff sought compensation for the wrong. A criminal case is one in which a legally sanctioned punishment, such as excommunication, could be levied.21 Following an accusation, the defendant (reus) as the accused was to be summoned to appear in court by posting the notice in a prominent place, such as on his door or on the door of his parish church. The third and final citation, or a single peremptory citation, indicated that if the defendant failed to appear in court, the trial would proceed in his absence and he could be declared contumacious, which in turn could result in excommunication.22 Once (or if) the defendant (reus) appeared in court, the plaintiff (accuser, actor) had to submit the charges in writing, known as the “libel” (libellus inscriptionis), if it had not been done so already. Once the defendant received the libel, he could either answer on the spot or ask for a twenty-day delay to decide whether to defend against the claims and, should he choose to do so, to frame his formal reply. During this period the defendant also had the option of responding to the libel by submitting either a peremptory exception, which objected either to a legal or factual element of the case, or a dilatory exception, which logged a procedural error.23 If the judge chose to allow one or more of the defendant’s exceptions, the issue that the exception raised must then be adjudicated before the main issues in the case could come to trial. Should the ruling on an exception go against the defendant, he was compelled to pay both his own and the plaintiff’s costs immediately for that phase of the action. The intent, presumably, was to deter frivolous exceptions and the consequent delays by making defendants pay for them.

21 Pennington, “The Jurisprudence of Procedure,” in HCP, 129–131 focuses in particular on the Roman jurist Bulgarus’s explanation of the ordo in a letter to the papal chancellor Haimeric; P. Hyams, “Due Process versus the Maintenance of Order in European Law: The Contribution of the Ius commune,” in The Moral World of Law, ed. P. Coss (Cambridge, 2000), 62–90. Cavallar and Kirshner, Jurists and Jurisprudence in Medieval Italy, 17.1 (pp. 268–277) outlines the procedural process for civil cases according to the 1415 Statutes of Florence. The discussion of accusatory procedure as it pertains to criminal cases on pp. 319–321 suggests the same process.22 Tancred, Ordo iudiciarius 2.3.1, in Pilii, Tancredi, Gratiae libri de iudiciorum ordine, ed. F. Bergmann (rpt. Aalen, 1965), pp. 132–139; J. Andreae, Processus iudiciarius (Nürnberg, 1572), fol. 2v.23 See E. Corran, “An Approach to Canonical Procedure: The Compilation of ‘exceptiones’ in British Library Add. 24979,” BMCL 30 (2013): 71–87.

With exceptions out of the way, the actual trial, known as the litis contestatio, could begin. Once again, the plaintiff (accuser, actor) repeated his claims (by now usually amended and made more specific) and the defendant (reus) repeated his specific denial of them. Each side swore the calumny oath: the plaintiff called upon God to witness that he had not brought his action simply to harass the defendant and that he intended to prove his claims honestly. The defendant also swore that he would offer an honest defense to the plaintiff’s claims and that he was not doing so out of malice. The legal representatives of the parties—whether advocates or proctors—might take the oath on behalf of those they represent as they shepherded the case. Although they acted in the name of the principals whom they represented, it was their responsibility to prove the claims that their clients had asserted. Advocates and proctors must produce trustworthy and credible evidence that would support the assertions he had made.24 In accusatorial cases, the burden of proof lay upon the plaintiff. The defendant, for his part, sought to produce evidence that would convincingly contradict or undermine the claims made against him. His task was less demanding, at least in the sense that he did not have to produce positive proof of his claims, but simply show that the assertions lacked adequate foundation in fact or in law.

24 Cavallar and Kirshner, Jurists and Jurisprudence in Medieval Italy, 178–183 and 11.1 (pp. 183–198) for William Durantis’s assessment in his Speculum iudicale of what barred someone from serving as an advocate in particular cases; what advocates should wear, their character, and their comportment; and their responsibilities to their clients.

The standard of proof in accusatory proceedings was extraordinarily high, for the plaintiff (accuser, actor) must provide “full proof” (plena probatio) of his charges. He could do this only by furnishing evidence that was “clearer than the mid-day light”.25 In practice, then, full proof required either that the defendant confess or that the plaintiff substantiate his complaint by the sworn testimony of at least two credible witnesses who had both seen and heard the critical episode or event that was at issue. The rationale behind this exceptionally high standard of proof rested upon the Scriptural admonition that “the evidence of two or three witnesses is required to sustain any charge.”26 Each side in the dispute furnished the judge with a list of witnesses it wished to call, together with a list of questions that the judge was to put to each of them. When witnesses appeared on the appointed day, they were first placed under oath swearing to the truthfulness of their testimony and that it did not result from either favor or animus. Each of them was then called separately for questioning by the judge or a judicial examiner in private. The judge asked the questions submitted by the parties and supplemented those by any further questions he deemed relevant or appropriate. The character of the witnesses and the truthfulness of what the witnesses saw or heard was also scrutinized. A notary was also present to record the questions and answers. Slaves, women (in some circumstances), those under the age of fourteen, the insane, the infamous, the poor, criminals, and infidels were barred from testimony. Also, judges, legal representatives, and officers of the court could not serve as witnesses in cases in which they were involved.27 Lest litigants draw out proceedings unnecessarily, Pope Innocent III limited the number of witnesses who might be produced to forty.28

25 On full and partial proof, see the interesting discussion by J. Franklin, “The Ancient Legal Sources of Seventeenth-Century Probability,” in The Uses of Antiquity: The Scientific Revolution and the Classical Tradition, ed. S. Gaukroger (Dordrecht, 1991), 123–144, here 126–139.26 Matt. 18:16; cf. Deut. 19:15, II Cor. 13:1.27 C. Donahue, Jr. “The Courts of the Ius commune,” in HCP, 125–159, 74–124, 83–94 focuses in particular on Tancred of Bologna’s discussion of witnesses in his Ordo iudicarius. S. Lepsius, Der Richter und die Zeugen: Eine Untersuchung anhand des Tractatus testimoniorum des Bartolus von Sassoferrato (Frankfurt am Main, 2003) focuses on Bartolus of Sassoferrato’s Tractatus testimoniorum, a teaching text on the questioning of witnesses and how to evaluate their testimony as evidence.28 X 2.20.37.

Literal proof, that is evidence from documents, was important as well, but opinions differed as to whether it should carry as much weight as oral testimony. Forgery of charters and other documents, including papal mandates and decretals, was commonplace and judges had good reason to be skeptical of written instruments. Canon lawyers had rules designed to detect forgeries,29 but application of these rules was far from infallible, even at the hands of a pope. Thomas of Marlborough, advocate for Evesham Abbey, for example, described how Innocent III carefully examined two papal bulls that Thomas produced in the course of a lawsuit and pronounced them genuine, although we now know that they were forgeries.30 Innocent Ill’s ruling on a case in 1206 set forth guidelines for the evaluation of written and oral evidence that furnished judges with a set of standards to apply in situations where documents were challenged, but canonists continued to be wary of written evidence.31 It seemed contrary to nature, Innocent IV would later declare, to trust the skin of a dead animal more than the voice of a living man.32 In the end, confession to the crime was critical since most crimes were concealed from the public eye, and thus two eyewitnesses were not easy to come by. While offenders, when discovered and hauled before a tribunal, sometimes broke down and confessed, the determined and obdurate criminal often resisted successfully any urge that he might feel toward self-incrimination.

29 X 2.22 dealt with the rules to detect forgeries. On written proof, see M. T. Clancy, From Memory to Written Record: England, 1066–1307, 3rd edn (Chichester-Malden, 2013), 262–300.30 Clancy, From Memory to Written Record, 318–328.31 X Innocent IV, Apparatus to X 2.22.15 §1 (Frankfurt, 1570), fol. 279vb–280ra.

When the judge was satisfied that he had all the relevant evidence in hand, he “published”, or authorized disclosure, of the record of the testimony to the parties and their counsel. He would also set a day for counsel to present their arguments. The advocates and/or proctors now examined the depositions of witnesses and framed arguments (positiones) intended to call to the judge’s attention the strength of the evidence for their client’s case and the contradictions and other flaws in the evidence that their opponents had produced. Lawyers for the parties also prepared arguments in law (allegationes), in which they directed the judge’s attention to the canons that supported their theory of the case and those that told against their opponent’s position. Judges preferred that the oral arguments be kept brief. When arguments were especially complex and lengthy, counsel might submit written positiones and allegationes, which the judges could study when reaching their decision.33

33 Tancred, Ordo iudiciarius 3.4.2 and 3.15, pp. 208–209 and 261–268.

Once the judge had heard oral arguments and had the written versions in hand he then appointed a day for the parties to appear to hear his decision and sentence. Judges normally announced their decisions orally. Protocol required that they do so while seated and that the announcement be made during the daylight hours. The oral decision was also committed to writing and the survival of draft decisions confirms what one might have expected; namely, that these documents were carefully composed, reviewed, and revised prior to publication.34 The decision normally gave a brief statement of the judge’s findings in fact. Unlike modern English and American judicial decisions, medieval canonical judges rarely discussed in any detail the legal reasoning that underlay their conclusions. With the judge having issued a definitive sentence, both orally and in writing, the aggrieved had the right to appeal the decision on the basis that the ruling violated equity or the rights of the litigant.35

34 J. E. Sayers, Papal Judges Delegate in the Province of Canterbury, 1198–1254: A Study in Ecclesiastical Jurisdiction and Administration (Oxford, 1997), 321–322 prints a fine example of a draft decision from Egerton Charter 409 in the British Library.35 For a helpful and concise discussion of a trial’s components from start to finish, see G. R. Evans, Law and Theology in the Middle Ages (London-New York, 2002), ch. 14 (the process), ch. 20 (evidence), ch. 21 (sentencing), and ch. 22 (appeal).

While the accusatorial process applied to both civil and criminal cases, the inquisitorial process is most often associated with criminal cases. Its development and use, however, first must be placed within the context of two other twelfth-century juridical processes: denuncio, which existed alongside the accusatorial process used in criminal trials, and accusations per notorium. Denunciation (denuncio) had its basis in the Gospel of Matthew: if your brother does something wrong and refuses to listen to your “charitable admonition”, you should report his wrong to the community.36 The standard of proof in a proceeding by denunciation was as high as that under the accusatory procedure and conviction of the obdurate criminal was therefore far from easy to secure. It was particularly unsatisfactory in penalizing the perpetrators of “occult crimes”, who took the precaution of hiding their nefarious conduct from public view.

36 Matt. 18:15–17; cf. Lev. 19:17.

The processes of the ordo iuris had been quite successful in safeguarding the rights of the accused, so successful that it was difficult for the court to obtain a conviction, even when wrongdoing was well-known. Around the turn of the thirteenth century, the papacy thus began to experiment with alternative approaches to the problem of punishing crime. One novel strategy for dealing with canonical crimes was procedure per notorium. The rationale for this procedure lay in what may be called the “common sense” approach to criminal justice, which held that where the fact of a crime and the identity of the offender were both obvious and well known throughout the community, the niceties of the conventional ordo iuris were irrelevant and need not be applied. This approach to the problem of crime enjoyed considerable popular appeal since it seemed to punish offenders swiftly and cheaply while at the same time avoiding the dodges and delays of lawyers. Advocates of this approach could even point to respectable canonical authority for their position, since Gratian, when commenting upon a passage from St. Ambrose, had remarked that a judge need not observe all the procedural steps of conventional judicial procedure.37 Building upon this observation, Popes Lucius III (d. 1185) and Innocent III (d. 1216) authorized courts to employ an abbreviated and much simplified criminal procedure when they dealt with cases in which a priest was openly living in sin with a concubine or patronizing prostitutes. Not only was an accuser or denunciation not required in these situations, the pontiffs declared, but the courts could also relax the strict standard of proof that the ordo iuris demanded.38 If “full proof” by the evidence of two credible eyewitnesses was not available, then “partial proof”, that is the testimony of one witness supported by circumstantial evidence, would do.

37 Grat. C.2 q.1 d.p.c14, d.p.c.17.38 X 3.2.8.

Procedure per notorium promised a quick and easy solution to the problem of punishing flagrant crimes that outraged a community. Conviction in proceedings per notorium simply required that the judge establish that numerous members of the community in which the defendant resided believed that he was guilty of some crime. No eyewitnesses needed to be produced. Conservative jurists abhorred this course of action, which they considered far too summary to warrant punishment. They insisted that the judge must at least summon the defendant and question him about the allegations before pronouncing judgment, but that seems to have been the limit of the defendant’s rights under this procedure. Yet there were jurists who constructed a rationale for employing this procedure on the grounds that the public interest required that crimes must not go unpunished.39 Authorities claimed that “the public interest” thus legitimized this new procedure.40

39 R. Fraher, “The Theoretical Justification for the New Criminal Law of the High Middle Ages: ‘Rei publicae interest, ne crimina remaneant impunita’,” University of Illinois Law Review 3 (1984): 577–595 develops this argument in detail.40 Tancred, Ordo iudiciarii 2.7.1, pp. 151–152.

Procedure per notorium, however, needed all the legitimacy its defenders could muster. On its darker side this procedure stripped defendants of nearly all the protections that the conventional ordo iuris afforded them. This opened the way for abuse of the Church’s criminal justice system because proceedings per notorium could easily be manipulated or contrived in order to brand a criminal person whose real crime was to be disagreeable to their superiors or unpopular among their neighbors. Punishment of notorious crimes in this summary fashion also suffered from an inherent intellectual flaw. Although per notorium procedure no doubt did facilitate punishment of flagrant offenders, and in that sense served the public interest, its apologists never quite managed to produce convincing answers to the counterargument that if the crime and the identity of the offender really were so widely known as to be notorious in a rigorous sense of that term, then a judge ought to be able to find witnesses to prove it. If no witnesses could be produced, according to this reasoning, then the charge should be classed as merely “manifest”, that is, widely believed, rather than “notorious”, that is, widely known. Because per notorium procedure was such a slippery, and hence potentially dangerous, tool, jurists warned future advocates and judges that they should employ it rarely and with great caution.41 William Durand (d. 1296), the most eminent of the thirteenth-century procedural writers, went so far as to declare that in order to warrant conviction per notorium the offender must commit his crime at a time when the judge was acting in his official capacity and in the presence of a large enough crowd to make the offence public knowledge. Under these circumstances an offence was indeed “notorious” in the full rigor of the term. Otherwise, however, Durand maintained that a conviction per notorium would not be justified so long as the defendant denied guilt.42 Jurists in addition to Durand, such as Tancred of Bologna and Hostiensis also expressed reservations about convictions per notorium because of the danger it posed to safeguarding the integrity of the ordo.43

41 Hostiensis, Summa aurea, lib. 5 De criminibus sine ordine puniendis, 1481–1482; Durandus, Speculum iudiciale, lib. 3, partic. 1, rubr. Quid sit pene occultum §7 (Basel, 1574), p. 48.42 Durandus, Speculum iudiciale, lib. 3, partic. 1, rubr. De notoriis criminibus §9, and rub. Notorium quid sit (Basel, 1574), pp. 44–45, 49–52. See also Pennington discussion of per notorium procedure in The Prince and the Law, 229–230, 247–248, 256–257, 264–266.43 R. H. Helmholz, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008), 605–609; Brundage, “Full and Partial Proof,” 59–66.

The reservations that academic jurists voiced about this procedure presumably account for the introduction in practice of defense by compurgation. While compurgation did not address the underlying facts of the case, it was a way of dealing with rumors and repairing one’s reputation. Once common knowledge of an offence had been established, judges could, and often did, require defendants who denied the allegations against them under oath to purge themselves of the accusation by producing a stipulated number of oath-helpers or compurgators who were prepared to swear that they believed the defendant’s sworn denial. Thus, the accused swore a formal oath that he was innocent of the crime and found the required number of supporters willing to swear an oath to the accused’s character and to the validity of his compurgation. The judge would vet the supporters to ensure that they were of good repute, not deemed infamous, have the appropriate status, and that they were neighbors of the accused and familiar with this character.44

44 Helmholz, “Crime, Compurgation and the Courts of the Medieval Church,” Law and History Review 1 no. 1 (Spring 1983): 1–26. See also A. Fiori, Il giuramento di innocenza nel processo canonico medievale: Storia e disciplina della “purgatio canonica” (Frankfurt am Main, 2012).

In a way we see a Goldilocks situation: the protections afforded by the ordo iuris made it too hard to render a conviction in criminal cases using accusatio and denuncio procedures; however, per notorium procedure was too soft and jurists expressed concern over the sidestepping of the ordo iuris. It is within the context of that inquisitorial procedure (inquisitio) came to the fore as a sort of middle ground at the Fourth Lateran Council with Innocent III’s canon Qualiter et quando (c.8).45 Like the process per notorium, procedure per inquisitionem allowed a judge to take action against a suspected offender ex officio, without any accusation or denunciation. Again resembling the process per notorium, all that a judge needed was the widespread belief that an individual had committed an offense: ill-fame (mala fama) constituted an adequate basis for judicial investigation and hence could be deemed to take the place of an accuser.46 It was not necessary for the judge to produce a written complaint, nor did he need to admonish the defendant informally, as in a process per denunciationem, before commencing the action; one’s mala fama served as the denunciation.47 The whole conduct of a proceeding per inquisitionem—determining when and if to initiate the procedure, deciding what charges to levy and against whom, producing witnesses, taking their testimony, responding to the claims and arguments of the defendant, arriving at a decision, and pronouncing sentence—rested in the hands of the judge, who thus combined the functions of investigator and prosecutor with his judicial role.48

45 COGD II/1, 171–172; X See also Evans, Law and Theology in the Middle Ages, Part IV on notoriety and shorting the judicial process.47 Théry-Astruc has demonstrated instances in which denunciation and inquisitorial process could merge. Canons and monks could approach the curia for the pope to begin an inquiry ex officio into their bishop or abbot on account of his fama. Before the pope could begin an inquiry based on fama, they needed to have given successive warnings to their superior to change his behavior beforehand. This was known as tria monitio and derived from Matth. 18:15. See “The Papacy’s Criminal Proceedings against Prelates in the Age of Theocracy,” in Proceedings Toronto 2012, 883.48 J. Teutonicus, Gloss. ord., ad C.2 q.6 c.40 s.v. exploratores and C.3 q.6 c.10 s.v. de expulsis; Bernard of Parma, Gloss. ord., ad X 5.1.15 s.v. criminale; Gandinus, Tractatus de maleficiis, 2.111–120. See J. Carraway Vitiello, Public Justice and the Criminal Trial in Late Medieval Italy: Reggio Emilia in the Visconti Age (Leiden, 2016); and M. Vallerani, “Criminal Court Procedure in Late Medieval Bologna: Cultural and Social Contexts,” in Violence and Justice in Bologna: 1200–1700, ed. S. R. Blanshei (London-New York, 2018), 27–53 for case studies on the navigation of procedure in the criminal courts to suit the needs of the community.

Once a judge had determined that mala fama existed and that the information was sufficiently serious and specific to warrant formal charges against a defendant, however, the evidentiary requirements of the standard ordo iudis came into play and afforded the defendant a degree of protection. The defendant must be cited before the judge, he must be informed of the charges against him, and he had the right to offer a defense, unless he wished to plead guilty. William Durand insisted that full proof of guilt according to the prescriptions of the ordo iudiciarius was essential before a judge proceeding per inquisitionem could declare a defendant guilty.49

49 Durandus, Speculum iudiciale, lib. 3, partic. 1, rubr. Manifestum quid sit, pr., s.v. Licet aperta (Basel, 1574), pp. 47–48.

What exactly did the trial process need to have in order to safeguard the spirit of the ordo iuris while at the same time allowing for an expeditious pace, but not so expeditious that decisions would be overturned on appeal? Courts encountered this question as they began to streamline some of the procedural rules as seen by the use of phrases such as summarie (“summarily”), de plano et absque iudiciorum strepitu (“plainly and without clamor of judgments”), simpliciter et de plano, sine strepitu aduocatorum et figura iudicii (“plainly and simply, without the clamor of advocates and judicial niceties”). That courts sought a simplified and speedier juridical process should not be surprising. Protests against inordinate delays and excessive costs caused by flaws in the reigning procedural system have been commonplace in the history of every highly developed legal system, from antiquity to the present. However, rules needed to be in place to ensure that rights were not violated in the process of seeking judicial efficiency. Canon 6 of the Council of Vienne in France (1311–1312), which was later incorporated into the Constitutiones Clementinae (2.1.2) allowed judges to employ summary procedure in cases involving marriage, usury, tithes, and benefices. Left unexplained, however, was exactly what that procedure should look like. Clement V’s decretal Pastoralis (Clem. 2.11.2) safeguarded the defendant’s defense in court as established by natural law while Saepe contingit (Clem. 5.11.2) clarified that: judges did not have to require the libellus; holidays did not have to be observed; objections, appeals, and witnesses could be limited. A judge, however, could not omit necessary proofs or legitimate defenses from the process; he could not exclude a summons; and he could not deny the oath of calumny. Summary procedure allowed judges to hear cases and take testimony during some periods when the conduct of formal judicial business was normally forbidden, and to curtail the use of dilatory exceptions and appeals by the parties.50 Bartolus of Sassoferrato, a civil jurist, would note that a trial must allow for a summons, petitions, exceptions, delays, and proofs as they were guaranteed by natural law. Summary procedure could not exclude these elements.51

50 See also Pennington, The Prince and the Law, 132–164, 188–190.51 Cavallar and Kirshner, Jurists and Jurisprudence in Medieval Italy, 260–261; Pennington, “Introduction to the Courts,” in HCP, 24–29; Donahue, “The Courts of the Ius commune,” HCP, 116–117; O. Descamps, “Aux origines de la procédure sommaire: Remarques sur la constitution Saepe contingit (Clem V, 11.2),” in Der Einfluss der Kanonistik auf die europäische Rechtskulture, Vol. 4: Prozessrecht, ed. O. Condorelli et al. (Köln, 2014), 45–64; K. W. Nörr, “Rechtsgeschichtliche Apostillen zur Clementine Saepe,” repr. in “Panta rei”: Studi dedicati a Manlio Bellomo, ed. O. Condorelli (Rome, 2004), 4:225–238.

Medieval jurists had to confront tensions between two conflicting set of values: issues that church authorities and canonists confronted in dealing with safeguarding the protections afforded by the ordo iuris, on the one hand, while at the same time ensuring that crimes could be prosecuted and justice could be rendered, on the other hand. A safe and just society requires reasonable certainty that those who break the law will, at least most of the time, be apprehended and punished. At the same time, however, a safe and just society also requires some assurance that its members will not be convicted and punished for crimes they have not committed. Authorities at the beginning of the thirteenth century concluded that the stiff standard of proof that the ordo iuris required allowed excessive numbers of criminals to escape the punishment they deserved. In an effort to repair the deficiency they perceived in the legal system, they introduced alternative forms of action per notorium and per inquisitionem. Academic authorities, however, concluded that procedure per notorium sacrificed too many of the procedural safeguards built into the ordo iuris. Hence, they taught their students that this procedure should be used sparingly and sought to hedge it with limitations that made it fundamentally unworkable. Academic lawyers insisted that inquisitorial procedure adhere to a process that afforded defendants at least some of the formal protections of the conventional ordo. This furnishes an instructive example of what might be called “jurist nullification”, whereby academic law teachers taught the church’s future lawyers to modify or even ignore certain parts of the canon law that they considered poorly conceived or simply wrong.52

52 The allusion here is to “jury nullification” in England and American common law. This occurs when what lawyers and judges call a “runaway jury” refuses to find a defendant guilty, despite the evidence and the judge’s instructions on the law. For an instructive treatment of this topic see T. A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (Chicago, 1985), esp. ch. 2.

Juridical discussions of procedure norms in criminal cases had a notable impact on conceptions of punishment. Canon law characteristically gave judges broad discretion to fit the punishment both to the crime and to the circumstances of the criminal. In part, certainly, this reflected what is sometimes called the medicinal approach to sentencing, that is, a belief that the primary goal of punishment ought to be rehabilitation of the criminal. Medicinal punishment was the norm in canonical penal law up to the late eleventh century. The application of canonical rules during the early Middle Ages tended to be episodic and reactive: church authorities in that period commonly took action only when offenses became so glaring and public that they were likely to cause scandal and lead others astray. For the rest, early medieval churchmen were inclined to leave the detection and punishment of secret offenders to the penitential forum, the private, individual ministry of their confessors, whose first goal was to try to save the sinner, rather than to pursue delinquents and subject them to formal disciplinary action.

Those who occupied the papal throne from the end of the eleventh century onward, however, tended to be more aggressive in these matters. They set in motion an energetic and vigorous approach to penal law, an approach that could be said to overshadow, at times, the penitential stage of correction. Bishops and other prelates, as we will see in Chapter 8, should seek out offenders against orthodox belief and behavior. Once detected, offenders ought to be put on public trial for their misdeeds and, when convicted, their punishment should likewise be public and punitive enough to make other potential offenders think twice before imitating the miscreants. Penal law, according to this view, must serve deterrent as well as corrective purposes.

The menu of penalties from which a judge might choose when sentencing a convicted defendant was accordingly rich and varied. The judge, at least in theory, should compound a mixture of punishments appropriate to each case. Uniform sentencing was far less important, in this view, than the fit between a particular crime and the retribution that followed.53 The list of ecclesiastical penalties included coercive penalties such as excommunication, interdict, or suspension from office if a cleric.54 These were designed primarily to bring pressure on the miscreant to comply with the law and make his peace with church authorities. Retributive penalties, such as fines, restitution of ill-gotten gains, deposition from office if a cleric, degradation from clerical status, confinement in a monastery, or other types of imprisonment, deprived the guilty party of status, income, or freedom as punishment for his misdeeds. Purgative penalties, such as pilgrimages, the donning of penitent’s garb, participation in processions, the public offering of gifts to repair damages, ritual flogging, fasts, and abstinence from meat, wine, or sex for prescribed periods, served to humiliate the penitent while at the same time they purified him of the guilt he had incurred. The most horrendous canonical crimes, especially heresy, might even merit “relaxation to the secular arm”, which involved turning the convicted defendant over to civil authorities who could inflict upon the convict the physical punishments permitted in their courts (such as amputation of limbs, branding, beating, and various forms of execution).55

53 How to be a good judge was a matter of concern for legal thinkers and theologians alike. Procedural manuals, theological texts, sermons, legal treatises, and letter collections all took up this topic. On this see P. Byrne, Justice and Mercy: Moral Theology and the Exercise of Law in Twelfth-Century England (Manchester, 2018).54 See F. Keygnaert, “The Meaning of Ecclesiastical Exclusion in the Archdiocese of Reims, c.1100: The Legal Difference between Excommunication, Anathema and Interdict,” in Proceedings Toronto 2012, 767–778; E. Vodola, Excommunication in the Middle Ages (Berkeley-Los Angeles, 1986).55 See F. Donald Logan, Excommunication and the Secular Arm in Medieval England: A Study in Legal Procedure from the Thirteenth to the Sixteenth Century (Toronto, 1968).

As litigation increased and courtroom activity became more formalized in the course of the twelfth and thirteenth century, the need for guides to processes likewise increased and became more formalized.56 Procedural manuals served as reference manuals for judges, lawyers, and their staff as practitioners of law. Earlier in the chapter we were introduced to views contained in the manuals and treatises of Bulgarus, Albertus Gandinus, Tancred of Bologna, William Durand, and Bartolus of Sassoferrato. Bologna was active in the production of manuals and treatises, but so too were Paris and the Anglo-Norman region.57 To offer a few examples, the ordo known as “Tractaturi”, assembled in northern France after 1165, drew more heavily upon Roman law than upon canon law, but ecclesiastical lawyers used it for the formulation and presentation of cases in church courts.58 The Ulpianus de edendo was compiled in the Anglo-Norman region sometime during the 1150s or 1160s during the reign of King Henry II. It sought a complete treatment of civilian procedure and was grounded in texts almost entirely taken from the Justinianic Corpus of the Codex, Digest, and Authenticum.59 The titles of the Ordo Bambergensis, a manual compiled some time after 1186 and connected both to Oxford but also to Ireland, were organized similarly to those in the Ulpianus de edendo. Contrary to the Ulpianus de edendo which only drew on Gratian once in the section on appeals, it includes texts from both Roman law and canon law, drawing significantly from Gratian’s Decretum. The Ordo Bambergensis also discussed excommunication and marriage, topics not addressed in the Ulpianus de edendo.60 Unlike the Ulpianus de edendo, however, the Ordo Bambergensis had a limited circulation in the Anglo-Norman region.61 The Practica legum et decretorum—written between 1182 and 1189 by William of Longchamp, who served simultaneously in the roles of bishop of Ely, papal legate, and King Richard I’s chancellor—paid particular attention to exceptions and modified Roman procedure to take canonists’ concerns with equity into consideration.62 Three ordines served as commentaries on Causae 2–6, the tract on procedure in Gratian’s Decretum: the Summa Elnonensis, compiled in Paris between 1160 and 1170, possibly by Gérard Pucelle before he left Paris to teach canon law at Cologne;63 the “In principio”, which was compiled in Reims, or maybe even in Amiens, around 1171; and the “Videndum est quis sit ordo”, compiled by canonist Peter of Blois between 1185 and 1189 in north-eastern France. They contained a section devoted to procedure appropriate in civil matters and a section devoted to procedure appropriate in criminal matters.64

56 On this see Brundage, The Medieval Origins of the Legal Profession; idem, “‘My Learned Friend’: Professional Etiquette in Medieval Courtrooms,” in Readers, Texts Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-Magerl, eds. M. Brett and K. G. Cushing (London: Routledge, 2007), 183–196.57 Fowler-Magerl noted that the Romano-canonical procedure entered England through ecclesiastical courts (Ordines Iudicarii and Libelli de Ordine Iudicorum, 93). In addition to the procedural manuals discussed she pointed to a few others worth noting briefly. The ordo “Abbas cuiusdam monasterii”, compiled possibly for the deacons of Lincoln in 1210, and the ordo “Iudicium est trinus actus trium personarum”, compiled in Oxford after 1198, both take the form of questions. William of Drogheda compiled an ordo “Cum in singulis diebus” at Oxford between 1239 and 1245 (66). A shorter ordo intended for courts of the local judges ordinary, the “Iudicium est actus trium personarum” was written for the courts of Westminster after 1234 (72).58 Fowler-Magerl, Ordines Iudicarii and Libelli de Ordine Iudicorum, 60–61. For the edition see Incerti auctoris Ordo Iudiciarius, Pars Summae Legum et Tractatus de Praescriptione, ed. C. Gross (Innsbruck, 1870).59 B. Brasington, Order in the Court: Medieval Procedural Treatises in Translation (Leiden, 2016), 123–127. For the edition, see Incerti auctoris ordo iudiciorum (Ulpianus De Edendo), ed. G. Haenel (Leipzig, 1838).60 Brasington, Order in the Court, 197–203.61 Fowler-Magerl, Ordines Iudicarii and Libelli de Ordine Iudicorum, 62.62 Brasington, Order in the Court, 172–180; Donahue, Jr.’s review essay of Brasington’s work in BMCL 34 (2017): 289. For the edition, see Der Ordo iudiciarius des Codex Bambergensis P.I.11, ed. J. F. von Schulte (Vienna, 1872), 289–325; Fowler-Magerl, Ordines Iudicarii and Libelli de Ordine Iudicorum, 64.63 G. Fransen, “Colligite Fragmenta: La Summa Elnonensis,” SG XIII (1967): 85–108, here 88–89, 107–108.64 Fowler-Magerl, Ordines Iudicarii and Libelli de Ordine Iudicorum, 62–63.

Procedural manuals laid bare, in a streamlined format for navigation, the norms derived from Roman law, canon law found in Gratian’s Decretum, and professional commentaries—or some combination thereof—that would guide each stage of the trial.65 They were structured in such a way that those of varying intellectual interests and expertise in law could ensure procedural rules were followed. Ordines were sometimes divided into parts. The “Tractaturi”, as an interesting example, comprises of three parts. Part 1 addresses procedure.66 Part 2 treats financial transactions, such as borrowing and lending, deposits, sureties, buying and selling, leasing and renting, and contracts establishing a long-term lease of immoveable property in which the one leasing the land enjoyed full rights of that property but rent was paid. It also provides example formulas ranging from calling someone to court to making the transaction.67 Part 3 deals with prescription, that is, the acquisition of ownership (usucapio) of property through continuous and uncontested possession or use for a fixed period of time.68

65 C. Duggan, “Papal Judges Delegate and the Making of the ‘New Law’ in the Twelfth Century,” in Cultures of Power: Lordship, Status, and Process in Twelfth-Century Europe, ed. T. N. Bisson (Philadelphia, 1995), 172–200, here 177, 196.66 Incerti auctoris Ordo Iudiciarius, 88–158. André Gouron has suggested that this part may have been compiled by Walter of Coutances shortly after 1160. Walter had worked in the service of Kings Henry II and Richard I of England, and he was bishop of Lincoln from 1182/1183 to 1184, followed by archbishop of Rouen from 1184 until his death in 1207. Walter is also attributed with overseeing the compilation of the Appendix Lateranensis III while he served as bishop of Lincoln. See A. Gouron, “Une école de canonistes anglais à Paris: Maître Walter et ses disciples (vers 1170),” Journal des Savants 1 (2000): 47–72; P. Landau, “Walter von Coutances und die Anfänge der anglo-normannischen Rechtswissenschaft,” in “Panta rei,” ed. Condorelli, 3:183–204.67 Incerti auctoris Ordo Iudiciarius, 159–247. See also A. Berger, Encyclopedic Dictionary of Roman Law (Philadelphia, repr. 1991), 452. A long-term contract was called an emphiteosis.68 Incerti auctoris Ordo Iudiciarius, 251–269. See also Berger who noted that under Justinian praescriptio longi temporis equated to usucapio, see Encyclopedic Dictionary of Roman Law, 645, 752.

Even if not divided into parts, ordines typically were divided into sequentially organized chapters addressing the procedure of a particular stage of the trial. The manuals typically began with how charges were brought about and the process of summoning someone to court. They would move to discuss acceptable stays and delays to the trial. A chapter on juridical order would address civil and criminal charges and the differences between them. They would discuss the oath of calumnia which accompanied the sureties paid on both sides. The ordines would address who could and could not serve as witnesses and the acceptable forms of proof.69 They addressed the voluntary oath and the judicial oaths taken in the course of testimony and perjury. A section would address the various personnel involved in the trial, focusing poignantly on the proctors and the judges. A separate section would deal with arbiters, as decisions arising out of arbitration did not possess the same authority as judgments. Finally, the ordines typically ended by addressing the sentencing phase and appeals.70 Ordines made the procedural process accessible and easier to follow, thus safeguarding the rights of both defendant and accuser.

69 B. Brasington found that the De testibus tractaturi drew on Gratian’s Decretum and decretals of Pope Alexander III—not Roman law—to demonstrate that the testimony of a witness who had since died could be accepted by the court so long as it was validated. See “De testibus tractaturi: A Late Twelfth-Century Italian Canonistic Treatise on Legal Procedure,” Vergentis no. 4 (2017): 167–177. For a study of another twelfth century, Saepenumero (uero) in iudiciis examinandis, which deals with forms of proof and whether the testimony of witnesses should or should not be accepted based on the witnesses’ s character, status, and trustworthiness, see B. Brasington’s “A Twelfth-Century Treatise on Proof: Saepenumero (uero) in iudiciis examinandis,” BMCL 32 (2015): 57–77.70 Incerti auctoris Ordo Iudiciarius, 88–158; Ulpianus De Edendo, 1–53; Der Ordo iudiciarius des Codex Bambergensis, 7–44.

As developments in courts, procedure, and procedural manuals make clear, by the fourteenth century the authorities of the Latin church had created a formidable apparatus for law enforcement and adjudication. Canonical courts furnished civil litigants with a forum for resolving their disputes on a wide variety of matters, while the church’s criminal justice system took cognizance of a broad spectrum of canonical offences that ranged from petty aberrations from behavioral norms to crimes of the utmost gravity. Canonical procedural law grew increasingly sophisticated, technical, and complex, as persons with formal legal training became increasingly available to operate it. The procedures that characterized actions heard by diocesan synods or episcopal courts gave way between the twelfth and fourteenth centuries to processes that necessitated the skills of an increasingly professionalized body of legal experts. Under these circumstances it is scarcely surprising to discover that canon lawyers also became progressively more concerned with problems of procedural law and jurisprudence. Procedural manuals helped judicial personnel navigate these waters. They served as indispensable tools to the trial process and to creating an atmosphere in which due process and justice could be upheld.

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