Introduction to the Courts

Kenneth Pennington

            The essays in this volume deal with the courts of medieval and by extension, early modern Europe.  Barbara Deimling illustrates the places, public and otherwise, where courts were held.  James Brundage discusses the education, training and ethics of the judges, lawyers, and notaries who participated in trials.  The rest of the essays by Charles Donahue, Charles Duggan , Péter Cardinal Erdö, Antonio García y García, Richard Helmholz, Sara McDougall, and Brigide Schwarz deal with the organization and function of the courts within ecclesiastical and secular institutions.  A main focus of these essays is the terminology of procedure and norms of procedure.  Finally, these essays illustrate the variety of practices that existed in different parts of Europe.  Perhaps that variety is most striking in northwestern Europe where ecclesiastical courts exercised their jurisdiction in ways that differed significantly from the secular courts.[1] 

            The essays also illuminate striking differences in the sources that we find in different parts of Europe.  In northern Europe the sources are rich but do not always give us the details we need to understand a particular case.  In Italy and Southern France the documentation is more detailed than in other parts of Europe, but here too the archival records do not answer every question we might pose to them.  In Spain, detailed documentation is strangely lacking, if not altogether absent.  García y García uses Iberian conciliar canons and tracts on procedure about practice in Spanish courts.  As these essays demonstrate, scholars who want to peer into the medieval courtroom, must also read letters, papal decretals, chronicles, conciliar canons, and consilia to provide a nuanced and complete picture of what happened in the medieval courtroom.  As these essays also make clear, however, many questions cannot be answered.  Scholars should always remember that the sources almost never tell us what the judges who decided cases were thinking.  It is always guesswork to read their minds.  Consequently, those who know norms that the jurists created in the jurisprudence of procedure have a much better chance of reading the sources correctly than those who do not. 

            It may be said that one may judge a society’s sense of justice by examining its courts and procedure.  In spite of the popular perceptions of torture, autos-da-fé, and brutal executions (‘getting medieval’, is Hollywood’s phrase) medieval and early modern court procedure adhered to the principle of due process of law — that is the rights of defendants — more firmly than modern American and most European courts.  The term ‘due process’ entered the English language as an invention of fourteenth-century French jurists.[2]  Medieval jurists who learned their law in schools expressed the idea in Latin as ‘secundum ordinem iudiciarium’ (according to the judicial order),  or with similar phrasing.[3]  It did not mean that the rules of procedure in the courtroom were followed exactly as it generally means today; it meant that the full rights of the defendant were respected by the court.  The rights of defendants — and plaintiffs — were of paramount importance in the medieval courtroom.  Judges did not focus as much as they do today on whether evidence was admissable or not and on other rules that do not necessarily protect the rights of defendants.

            Understanding the jurists of the Ius commune’s definition of  due process is important for understanding medieval and early-modern court procedure.  I would not argue that medieval courts were models of justice.  Medieval courts did violate principles of due process.  There are many reasons why due process was violated.  Marginal people, especially heretics, the lower classes, and political enemies could suffer miscarriages of justice. However, to know when the sources reveal corrupt judges historians must know the rules of procedure in the jurisprudence of the Ius commune.  It is one of the goals of this book to introduce students and scholars to the jurisprudence of procedure and its sources.  I and my fellow authors would never argue that extra-legal considerations, human proclivities, and the interests of the powerful never influenced the outcomes of court cases or distorted its procedure yesterday as they still do today.  What we would argue is, to adapt a very old maxim, is that the jurisprudence of procedure is the foundation upon which our understanding of the court records of the medieval and early-modern cases must rest:  ‘Periti sine iurisprudentia parum valent’ (Scholars who know no jurisprudence are not worth much).  Scholars should always have one eye on the theory and another on how and whether a particular case adhered to jurisprudential principles and norms.[4]

            There has been a recent trend among scholars who have studied the courts of medieval and early modern Europe that the social, emotional, and political reasons why courts subverted justice were more powerful than the norms that the jurists had created to control the dispensing of justice.  Other scholars have argued that the norms of procedure and the jurisprudence of the Ius commune had little influence on the development of courts.  This introduction is not the place to debate these approaches or to illustrate their shortcomings.[5]  The point of this chapter will be to illustrate how we should interpret court proceedings through the norms of procedure found in jurists’ treatises.  That is how theory can help us to understand practice.  Although the evidence I present is limited my interpretation of these sources assumes that the norms that we find in the writings of the proceduralists were generally followed in the courts.  Although the two court cases that I will discuss below to  describe the two most common methods of bringing a case to court are from a secular court, the same rules and procedures were followed in ecclesiastical courts.  These two cases illustrate a crucial point that readers should constantly bear in mind as they read this book.  The norms of court room procedure were developed primarily in canonical jurisprudence, but secular courts very quickly adopted the same norms and practices.  Although this volume focuses on ecclesiastical courts, much of what is characteristic of church courts is also found in secular courts.  In a third court case that I have taken from a papal decretal of Pope Innocent III, I try to show the how this particular source poses problems but also provides insights into medieval juristic thought. 

            Hermann Kantorowicz pointed to the path that historians should take in order to understand medieval courts and their practices when he published a number of texts of complete late-thirteenth-century cases from the Bolognese archives.  In addition he edited the works of Albertus Gandinus, a late-thirteenth-century proceduralist.[6]  Albertus was not only a skilled interpreter of the law he was also a judge in Bologna who exercised jurisdiction through the authority of the Bolognese Podestà.[7]  Kantorowicz printed cases that illustrated all the procedural intricacies found in Italian courtrooms, especially those which brought the jurist in contact with the clamor of the courtroom.

            There were, after the twelfth century, two main ways that cases were brought to court, accusatorial and inquisitorial.  The first mode of proof was through an accusation by a plaintiff (modus accusationis).[8]  It was the oldest and dates back to the procedure used in ancient Rome.  The second mode of proof, inquisitorial proceedings, evolved in the last quarter of the twelfth century (modus inquisitionis).  It was called inquisitorial because a judge could investigate a crime and summon a suspected wrong-doer to court.  Inquisitorial procedure took its place alongside accusatorial and both remained important for the next four centuries.  Inquisitorial procedure needed a strong governmental infrastructure to function.  As will be discussed below in my essay on the ‘ordines iudiciarii’ inquisitorial procedure was born in ecclesiastical courts of the late twelfth century.  Pope Innocent III’s legislation at the Fourth Lateran Council established it as a mode of proof in ecclesiastical courts.[9]  Inquisitorial procedure was quickly adopted by secular courts.[10]  A Bolognese statute of 1252 sanctioned its use in the city’s courts.[11]  The slow but inexorable grow of governmental institutions in the city states, principalities, and kingdoms ensured that inquisitorial procedure would gradually become pervasive throughout continental Europe.[12]  In the chapters of this volume there will be detailed discussions of these two types of procedure.  In order to set the stage for the essays that follow, I will give two examples from the court records of Bologna that Kantorowicz printed.  The records that survive never provide enough information to answer all the questions that arise about the litigants, the court, the procedure, and the motives of the various players that we meet in the sources.   The first two cases taken from Kantorowicz that I examine below, a case of attempted rape that ended in marriage and a criminal case that ended in a hanging, will introduce the courtroom, the accusatorial and inquisitorial procedure, the players, the people who applied and sought justice in medieval Europe, and how a medieval jurisprudence can illuminate what happened in the courtroom.  The third case is taken from a papal decretal.  With it I try to show the what the decretals can and cannot tell us for our understanding of the courts.  Finally, I will discuss the most misunderstood practice in the medieval courts, the summary procedure.  It became important in the middle of the thirteenth century.   There is probably no aspect of medieval and early modern procedure that has created more  problems of interpretation for modern scholars.

Accusatorial Procedure

As the name implies, accusatorial procedure requires an accuser to begin a legal action. This principle was fundamental to medieval society’s conception of justice until the end of the twelfth  century.[13]  Kantorowicz printed a text about a peasant woman, Bonavixina, and her accusation against her importunate suitor, Fulchitus.  Bonavixina must  have found an advocate to compose a ‘libellus’ that described her complaint and brought her case before the famous jurist, Albertus Gandinus, who happened to be the sitting judge in Bologna. Normally the plaintiff had to bring her case to the ordinary judge who had jurisdiction over the defendant.[14] If this rule were followed, she accused Fulchitus in the municipal court since he lived in Bologna.

            The written record of the case is brief.  We do not have detailed testimony of Fulchitus or  Bonavixina.  On June 11, 1289 she appeared before Gandinus.[15]  Reciting the required formula, ‘denunticare et accusare’ she denounced and accused Fulchitus.[16]  While she was tending her cattle, he had, she said, seized her with force and against her will threw her to the ground.  He attempted to ‘know her carnally.’  He wished to ‘corrupt and violate’ her.  He struck her many times on different parts of her body because she would not surrender to him.  She stated that he shouted ‘it is necessary that I take you and that you consent to obey my will.  Otherwise I will kill you.’[17]  People heard her cries and came to help her.  If they had not arrived, he would have corrupted and violated her.  She took the oath of calumny (iuramentum calumniae), gave securities in good faith (fide iussit pro eo de accusatione prosequenda)[18] — such an oath was given with the promise of  a surety (fideiussor) --- and was given a date for the continuation of her case.  Taking an oath that confirmed that the accusation was true and not false was an important part of accusatorial procedure.  The jurists described the purpose of the oath with a poem:[19]

He swears that just is his accuse,

And were he asked, the truth he would not confuse.

Gandinus gave Bonavixina and Fulchitus two days to think about their relationship.

            Two days later the Bonavixina and Fulchitus appeared again before Gandinus.  Bonavixina must have been carried away by Fulchitus’s passion — or if one were skeptical of the laconic written record, she used the court to legalize his lust.  Fulchitus told Gandinus that Bonavixina had accepted his proposal of marriage.  When Gandinus asked Bonavixina if this were true, she replied that it was, with the added piece of information that she had consented to the marriage freely and of her free will.[20]  She must have added this information at the insistence of her advocate.  That was the language at the heart of the marriage contract by the end of the twelfth century.  She added that these changed circumstances have caused her to withdraw her accusation.  Fulchitus was not completely free.  He was asked to deny Bonavixina’s accusations.  He did.  He said that he had not done any of the things which Bonavixina had accused him.  Gandinus made him deny his guilt because, just as today, guilt of sexual violence was not eradicated by the marriage bond.  The court stipulated if he were <later> condemned in any matter involving this case, he would resolve the matter with a fine of 100 Bolognese pounds.  The court approved his marriage but <tacitly> reminded him that he must keep his promises to Bonavixina.  Fulchitus also provided a surety for these promises.[21]  Gandinus absolved him.

Inquisitorial Procedure

Kantorowicz printed several cases that illustrated the rules governing inquisitorial procedure.[22]  A criminal case of theft is especially detailed.[23]  In December 1299 Vecto, a criminal judge of Philip, Podestà of Bologna was delegated to begin an investigation of Mengho, son of Ugolino, and a certain Nicholas and Sandrolo.[24] As Kantorowicz pointed out this text was only written after the conclusion of the case because the judge did not know who Mengho’s accomplices were until after Mengho was tortured.[25]  

            Mengho’s ‘fama’ led to an investigation.[26]   The court declared that he and his accomplices were public and well-known robbers and receivers of thieves and stolen goods (publici et famosi latrones et furtorum receptatores).[27]  In December of 1299, Mengho was alleged to have broken to the store of the brothers Montanaro and Giovanni.  He carried away many different colored skeins of silk.  There were skeins of dark and light green silk that   were worth 30 Bolognese pounds.

            Vecto ordered a knight (miles) Lazario to conduct an investigation into the robbery.  This step is an important part of the investigation (inquisitio).  The investigation must be sanctioned by a public authority.  The investigation must be recorded with a written record.   On the 5th of December Lazario supervised the testimony of nine witnesses and had their testimony recorded.  The testimony of the witnesses was taken near the store and in the Chapel of San Bertolo.  Justo of Pistoia was the notary.[28]   The witnesses spoke Italian, but Justo translated their testimony into Latin.  The document containing the accusation against Mengho was read to Jacobo Bonbolongini in Italian.  Jacobo had a store near Montanaro’s and Giovanni’s.  After swearing an oath to tell the truth, he said he knew nothing of the robbery but said that he believed Mengho to be a good man and not evil.  He knew nothing of the robbery.  Bartolomeo Benvenuti also had a store nearby.  Like Jacobo, he had heard about the robbery but had no knowledge of Mengho.  Ghisla, a neighbor, was questioned.  She had heard the commotion that morning but had no knowledge of the robbery.  She knew Mengho but knew nothing about his reputation (fama).  Michele Ubertini also said that he heard the commotion and the accusations against Mengho, but he had no other knowledge.  Lambertino Gherardi, another shopkeeper, stated that this morning, after attending Mass that he passed by the brothers’ store.  It was open.  He asked whether there was damage.  Montanaro responded, ‘I don’t think so’.  Lambertinus told him to check his storage box.  Montanaro did and told him that money was missing.   Justo asked Lambertinus if he knew Mengho and his reputation.  Lambertinus said he did and that Menghlo had the reputation of a thief.  Two more witnesses reported that Mengho was an evil denizen of the night but did not comment specifically on his reputation (fama).

            On the same day Lazario and Justo went to Mengho=s house with two armed retainers of the Bolognese podestà to search for the stolen goods.[29]  They found dark green, light green, and red skeins of silk in the straw of a bed.  They took the silk to one of the brothers, Giovanni, and asked him if he could identify the goods.   He immediately said it was his and told them that he had bought them from Vanno Bonaventuri, a merchant from Lucca.  Larzaro and Justo with the retainers of the podestà went to see Vanno to confirm Giovanni’s story.  He described the color of the silk.  When he was shown the silk he could not identify it with certainty as the silk he had sold to Montanaro and Giovanni.  A lot of silk is that color, he said.  Vanno brought out his scales and weighed the silk.  It weighed 5½ ounces.

            On the same day, December 5th, Mengho was brought before Judge Vecto again.  The results of the investigation were read to him in Italian.  Mengho denied everything.  Vecto asked him whether Mengho had bought silk within a month or maybe longer.  Mengho said he did not know.  He did remember that two months ago or so he had purchased a quantity of silk.  Vecto asked whether Mengho normally stored silk in straw pillow.  He said no.  The colored silk was produced in court and shown to Mengho.  Vecto explained that the silk was discovered in his bed by the nuncio of the Podestà of Bologna, Pietro Partuccio, and his retainers.  Mengho was quick to respond.  A certain Pedecolo met him on the street that morning in a great rush and asked Mengho if he worked with silk.  Mengho said yes.  Pedecolo gave Mengho the silk and said, ‘hold this silk until I come back’.  Mengho took the silk and put it in his bed.  Vecto asked Mengho if he asked Pedecolo where he got the silk.  Mengho said no.  Mengho might have claimed that he accepted the silk under the unilateral contract of deposit,[30] but destroyed that possibility when Vecto asked him what Pedecolo’s status was.  Mengho told the judge that he was a beggar, a thief, and an ‘infamis’ from robbery.  Did Mengho give Pedecolo money for the silk, asked Vecto.  No, responded Mengho.  Vecto had one final question.  Did Mengho know who took money from the Montanaro’s store?  Mengho claimed that he know nothing about the robbery.

            Vecto was confronted with a problem.  How should he proceed?  The investigation had produced no eyewitnesses and no certain evidence about Mengho’s reputation.  The silk found in his home was powerful but not conclusive evidence.  Was Pedecolo the thief?  Vanno’s inability to identify the silk was troubling. 

            Vecto had two options.  He could free Mengho for lack of evidence, or he could order him to be tortured.  The Bolognese statutes of 1288 had placed restrictions on the use of torture,  which conformed to the laws of other city states.[31]  The jurisprudence at this time dictated that a person could be tortured only if there were  very compelling, but not conclusive, presumptions of guilt (violentae praesumptiones).  A judge must also take the status, age, and gender of the persons into consideration when deciding on torture. [32]  Some people were exempt from torture completely.[33]

            There has been debate about the frequency of torture in European courts.  Some historians have argued that it was frequently used and was the inevitable result of inquisitorial procedure.  I have argued that it was used sparingly and only as a last resort to seek the truth.[34]  I have also argued that there was a movement to abandon torture among the jurists long before the eighteenth century.[35]  Vecto weighed his options, probably reflected upon and studied the jurisprudence, especially the recent Bolognese law of 1288 on the use of torture.  A key phrase in the statute, ‘public and notorious robbers’, which Justo the notary had intentionally used several times in his depositions of witnesses, was most likely the legal reason that convinced Vecto that Mengho could be tortured.[36]

            Torture was imposed on a defendant in a strictly orchestrated way that was established by statute.  The Bolognese criminal statute of 1288 dictated that when compelling presumptions of guilt based on evidence were found by the court, the defendant in the presence of four officials, of whom two must be judges, should hear the defendant’s testimony.[37]  No citizen of Bologna or member of various guilds could be tortured or even threatened with torture without compelling presumptions and proven evidence.[38]  The Captain of the People had to examine and approve each court order to torture.  A notary must be present to record the proceedings.  A member of the defendant’s family and six ‘anziani or consuls’ of the people must also be present.[39]  These regulations must be exactly (praecise) observed.[40]  The formal ceremony through which torture was administered was a significant limitation on judicial arbitrariness.  Further, the ability of the family to accuse magistrates of malfeasance through the legal instrument of the ‘sindacato’ if these regulations were violated also limited judges who acted arbitrarily.[41]   Jurists did complain that some judges resorted to torture too frequently.  The evidence seems to indicate that their complaints may have been about a small number of judges.

            Vecto decided that Mengho could be tortured.  Two days later, on the 7th of December two judges Arardo de Signorelli and Pietro Biterno, two knights (miles) and Pietro Bonfacio, a notary, accompanied Mengho to the room for torture.   The record does not specify where the torture was carried out or how Mengho was tortured. The Bolognese records of the late thirteenth century used three words that seem to mean the same thing:  Tondolum, tirellum, and Ad cordam (La corda).  These terms refer to the rope and pulley system of torture that remained popular for centuries.  Defendants were hoisted into the air with a rope attached to their wrists with their arms held behind their  backs.  A large illumination in a Vatican Codex manuscript is the earliest known illustration of the method.[42]  Later, the length of time that the defendant could be held aloft in that position was limited by the time needed to recite a short prayer such as the ‘Ave Maria’ or ‘Pater noster’.[43]    Court records of torture in the fifteenth and sixteenth centuries almost always listed the instruments of torture that were used. 

            Torture was carefully regulated.  Albertus Gandinus was a judge in the Bolognese courts and a contemporary of  Mengho who wrote about torture in great detail.  Could a podestà torture a man who was accused of murder without any evidence of his guilt? And if he could, would the defendant’s confession constitute a full and valid confession that would permit his condemnation? His answer was no. [44]  ‘What follows from an act lacking legitimacy cannot be valid’. [45] Albertus turned then to a more subtle question: [46]

But I pose the question here what of the confession made under the fear of torture? I think if <the facts of the case were>: the person to be tortured is led to the place of the torture, his hands are bound behind him, and the judge would say to him unless he confesses immediately he would torture him. In this case if he confesses the confession is not valid, unless he would persevere in his confession <in court>. The law holds such a confession extorted by fear to be the equivalent to one extracted by torture.

Albertus imagined the defendant prepared for La corda.  He next explored fear and torture. ‘What if,’ he asked, ‘the person were led to the torture chamber, but his hands were not bound behind him, <is his confession valid>? (i.e. he was not confronted with La corda)?’ Although there were differing opinions, he thought the confession was not admissible in court. [47]  He posed another question to define exactly what constituted the fear in a reasonable man (homo constans): [48]

But what if outside the torture chamber the judge said, ‘either you confess or I shall lead you to be tortured’, trying to create as much terror in him as he could? The defendant confessed. Will it be said in this case that the confession was extorted by fear? I say no, because this was slight terror... we ought to interpret terror or fear of torture as a present and immediate <threat of torture>... Slight terror of torture outside the torture chamber is an illusory fact.

Albertus tried to calibrate the amount of fear that constitutes torture. His solution was to distinguish between “an imminent and apparent danger” of torture to use the terminology of current American criminal law and the mere threat of torture.

            The jurists had long noted that some defendants could endure much pain under torture.  Others could not.  Mengho confessed immediately.  It was a long and detailed confession.  Although the means of torture were  not recorded and Mengho’s screams of pain are left out of the account, Mengho confessed to crimes he committed years before.  If the notary recorded his confession accurately, the first crime that he confessed was the money he stole from the store of Montanario, Giovanni and Giovanni Bellecti.  Mengho and his friend Pedecolo looked at the bag of money that Giovanni Bellecti carried into the store and decided to steal it during the night.  They invited Sandrolo to join them.  The notary wrote down Mengho’s version of the conversation.  Sandrolo asked, ‘What’s the job’? Mengho and Pedecolo told him about the money.  Sandrolo responded ‘I’m in’.[49]  Mengho went into the shop through a window and took the money from the locked box.  He attempted to let Pedecolo and Sandrolo into the shop but made too much noise.  Mengho exited through the window but also took the silk with him.  Mengho went home.  He buried the money and hid the silk in his bed, ‘where it was found by Pietro Partuccio, the nuncio of the city’.  Lazario was sent to Mengho’s house to see whether what he had confessed about the money was true.  It was.  Lazario found the money where Mengho had claimed he buried it.[50]  Once he had admitted to stealing the money and the silk, Mengho confessed to numerous other crimes over the years.  Seven years ago he stole from his teacher.  Two years ago he stole offerings from the altar of Santa Maria del Monte.[51]   Four months ago, he and others whom he could not remember stole sacred objects from San Domenico.  To this crimes Mengho added a number of others.  Mengho Apersisted and persevered@ in his confession, ‘adding or subtracting nothing’, when he repeated it before the court, as was required by the norms governing the ‘ordo iudiciarius’.[52]  After his confession Judge Vecto set a date in three days for his defense.   Vecto also ordered Justo to take Pedecolo and Sandrolo into custody.  Justo reported to the judge they could not be found anywhere in Bologna.  On the eleventh of December Alexander Jacobi, a nuncio of Bologna, was ordered to make a public proclamation before the homes of Pedecolo and Sandrolo summing them to court.   Alexander announced the summons day after day.  Anyone could come before the court and present evidence in their defense.  If Pedecolo and Sandrolo did not appear in court they would be banned.[53]  On the 11th December Vecto set aside the entire day for Mengho to receive the evidence against him and to do what he wished ‘de iure’ before the court and in public.  Martino Bagnarolo, a public herald for the commune of Bologna, told Justo, the notary, on December 14th, that he had once again summoned Pedecolo and Sandrolo with public and loud declarations before their homes.  On the same day, both men were publically banned with the consent of the Council of Eighty.[54]   If the Podestà captured them they were condemned to be hanged.  On the same day, he confirmed his confessions before the court and judge Vecto.  His confession Aadded or subtracted nothing@ to the written report of submitted by the notary who had heard his confession.  The stolen goods were returned to their owner.  Mengho was condemned to the gallows and hanged.

            This case illustrates many of the norms of inquisitorial criminal procedure in secular courts.  The judge could order investigations on the authority of his office.  He had the power to conduct searches and to summon witnesses for interrogation.  If there were grave presumptions of guilt and if a defendant refused to confess, the defendant could be tortured.  Torture, however, should be used only as a last resort, when the evidence was almost but not quite conclusive, and when the defendant had a bad reputation.  The Bolognese statutes of 1288 stated that  no person who lived in Bologna and belonged to a guild could be tortured without legitimate proofs.  The lord captain must examine each case and approve the use of torture in the presence of the defendant and six officials of the city.  Four officials of the commune and a notary should hear the confession of the man being tortured.  The defendant must, after confessing, be given an opportunity to produce witnesses or evidence in his defense.  Other persons who were implicated in a criminal’s confession must be given a chance to defend themselves in court.  In Mengho’s case the conflicting testimony of the witnesses was probably not sufficient for torture, but the discovery of the silk in Mengho=s home created the required grave presumption of guilt.  The norms of the Ius commune and the statutes of many Italian city states forbade indiscriminate and arbitrary torture.  Further the jurists agreed that a confession extracted by torture must be repeated in court when the defendant was under no coercion.  As Johannes Andreae noted several decades later the statutes of the Italian cities prohibited torture unless there was a grave presumption of guilt.  The Bolognese statute mandated that if torture was used in violation of the norms, the Podestà would be condemned to a fine of 1000 Bolognese pounds and excluded from the governance of the city.[55]

Papal Decretals as Evidence for Ecclesiastical Procedure

The papal appellate decisions that the canonists began to collect in the mid-twelfth century on provide much evidence for how procedure was regulated in Rome and in the episcopal courts.[56]  The richest collection of decretals, the Decretals of Pope Gregory IX (Liber Extra or often cited with just a capital X), compiled by Raymond de Peñafort and promulgated in 1234 by Gregory, tells hundreds of stories and captures almost every human failing.  Theft, robbery, adultery, incest, simony, clerical misconduct, murder, all appear again and again in its pages.  Gregory’s Decretals preserve only a small proportion of the cases that were appealed to Rome.  The papal registers contain thousands of cases that remain, in large part, still unexplored.   I have selected a case from the early years of Pope Innocent III’s pontificate to illustrate what can and what cannot be learned from them.

            The first is an English marriage case from 1203.  A certain W. from the diocese of Lincoln had an incestuous relationship with his wife’s sister.[57]

To Clement, the Prior of Oseney (Augustinian Priory, Diocese of Lincoln)

You have informed us in your letter that W., the bearer of your letter, had married a certain woman and after his marriage had fell into a incestuous relationship with his wife's sister and, by doing so, had committed adultery. He wallowed in this filth for three years. The sister bore twins from this adulterous relationship, and the crime became known to the neighbors. W. has pleaded abject poverty in the presence of our penitentiary, and he asserts that he cannot make a pilgrimage to Jerusalem that had been imposed upon him. Since you can more fully determine his means, we are sending him back to you. We mandate by this apostolic letter that you should give him a penance that you deem appropriate.

            You have also asked to be advised what you should do about his wife. We briefly respond that his wife should be enjoined diligently to be continent until her husband dies and to abstain completely from mingling her flesh with his on account of public honesty. Nonetheless if the wife refuses to obey because she fears to lapse from chastity, her husband may and ought render the conjugal debt to her with the fear of the Lord. The reason is that affinity iniquitously contracted after the marriage ought not to injure her since she was not a participant in the iniquity. Consequently the wife should not be deprived of her right without her fault (unde iure suo sine sua non debet culpa privari). Notwithstanding whatever by certain of our predecessors had been decided in a similar case that either the adultery or incest was manifest or secret or as others have maintained whether the grade of consanguinity was close or remote, <the wife should not be deprived of her right>.

Pope Innocent III. Written at the Lateran on 24 February, 1203 in the sixth year of our pontificate.

A decretal can give us information about the procedure at the papal court and at the lower level ecclesiastical courts as well.  It can also give us insight to the minds of the judges.  It does not, however, answer all the questions that we would like answered.

            The social context of this case is difficult to understand completely — a common problem for scholars when they study papal decretals.  W. — I will name him Walter — contracted a marriage with a woman.  After the marriage Walter began to have an affair with his wife’s sister that lasted three years.  The sister bore twins.  Neighbors began to talk.  Although the decretal is silent about how the case came to the attention of ecclesiastical authorities, ‘clamor’ as reported by neighbors undoubtedly came to the attention of local ecclesiastical authorities.  ‘The crime became known to neighbors’ that the curial judges included in their decision is a clue that they assumed that Walter’s wife and his wife’s sister did not bring an accusation to the court.  If accusers were not injured by Walter’s crime they could not bring an accusation against him.[58]  This norm had always been widely accepted.  Without an accuser to bring criminals to court, the moral and legal question was posed: should crimes for which accusers did not come forward remain unpunished?[59]  Fourth Lateran Council’s Qualiter et quando canon 8 declared in 1215:[60]

when a .  .  . matter reaches the ears of the superior through outcries and the rumor (clamor et fama) of many, not from enemies and slanderers, but from prudent and honest persons, not once only, but often.  .  .  .  If the quality of the evidence would demand it, canonical jurisdiction should be exercised over the accused, not as if the prelate were the accuser and the judge but as if the judgments of many denounce the accused and the complaints making him obligated to exercise his duties.

The text and the norms of canon 8 merely confirmed earlier procedural norms that had been already incorporated into canonical jurisprudence years before the Lateran Council.    A decretal with the exact same wording as canon eight was sent to the distinguished jurist, Lotharius, bishop of Vercelli in January 1206.[61]   A short time later, Petrus Beneventanus included it in Compilatio tertia, 3 Comp. 5.1.4.  The rules governing inquisitorial procedure were, in other words, well-known long before the Fourth Lateran Council.[62]

            The canonists linked ‘clamor’ and ‘fama’ in canon eight to two biblical stories.  When the Lord God reacted to the dreadful stories he heard about Sodom and Gomorrah by descending to earth to investigate (Genesis 18:20) and when the master in the Gospel of Luke who, having heard the complaints about his steward, demanded that the steward justify his actions (Luke: 16:1).[63]  A half century earlier Paucapalea had justified the new ‘ordo iudiciarius’ with the story of the judgment of Adam and Eve (Genesis 3: 12-18).[64]  The Bible also provided the jurists with powerful justifications for new inquisitorial methods in court procedure.  St. Hugh, bishop of Lincoln may have summoned Walter to explain how his wife’s sister produced twins without a husband.[65]  Walter must not have had a convincing answer.  The case went to the monastery of Osney and its Prior Clement, who exercised his office, presumably, close to Walter’s home.  The jurists had  always stipulated that defendants should not be summoned to distant courts.

            We have very little evidence how a prelate (the bishop or, more likely the archdeacon) would investigate Walter’s crime.  In a gloss written a few years before Lateran IV Johannes Teutonicus thought that the members of the ecclesiastical court should go to an abbey to inquire about wrong-doing.[66]   Presumably, Prior Clement went to Walter’s home.  His next step would have been to evaluate the credibility of the witnesses to Walter’s crime.  Johannes would not permit the testimony of Walter’s enemies to be given in court.  Further, these witnesses must take oaths that they are telling the truth.[67]  The ‘fama’ should be, according to Johannes, enormous and intolerable.  If the ‘fama’ continued to grow and an accuser did not come forward, the bishop should move forward with the senior members of his chapter and call witnesses.[68]   Of course, we cannot know whether Prior Clement took these steps in the early twelfth century when he investigated Walter’s crime. 

            Walter either confessed to his crime or was convicted on the testimony of his neighbors.  Prior Clement rendered a stiff penalty.  Walter was obligated to take a penitential pilgrimage to Jerusalem.  He appealed the decision to Rome.  At the beginning of the thirteenth century, a pilgrimage to Jerusalem was a dangerous journey.  The papal court was well aware that Christians captured by Muslims could be badly mistreated.[69]  Of course, Christians also mistreated Muslims.   Jerusalem was in Muslim hands after Saladin has conquered the city after the Battle of Hattin in October 1187.  After the disastrous Third Crusade, Christian travelling to Jerusalem could expect not only the usual difficulties but danger and threats to their safety.[70]  Although there were critics of penitential pilgrimages, clerics continued to use them frequently, danger or not.[71]  Walter, however, did not appeal the decision on the basis of danger but on the grounds he could not afford to go.  His strategy is perplexing.  Walter could afford to travel to Rome to appeal his case but did not have the money for a trip to Jerusalem?  There may have been fundamental reasons for his decision of which we are not aware.  It may be that any danger in penitential pilgrimages was thought to be part of the penance.  Consequently, Walter may not have thought it wise to use that reason in his appeal.  In any case, money not danger was the was the issue that Walter (and his advocate) chose for the appeal.  Prior Clement had not sent the curia information about Walter’s wealth.  The judges in the curia sent the case back to Clement with the order to investigate his ability (facultas) to undertake a pilgrimage and to render a definitive decision through the authority of the pope (apostolica scripta mandantes).  As is usually the case, we do not know whether Walter went to the Holy Land.

            Up to this point, this decretal provides information that, if the records existed, would have been similar to other court records discussed in this volume.  The second part of the decretal permits us to peer into the minds of the curial judges.  Other court records never or only rarely record what the judges thought.   Papal decretals often do.  In addition to whatever documentation Clement had sent to Rome about Walter’s pilgrimage, he added questions about the legal status of Walter’s wife.  Can Walter and his wife continue to live as man and wife and does Walter’s wife bear any guilt in his adultery?  The judges’ answer to the first question was that they could live together but without any sexual congress — unless the woman wanted it.  They based their decision on their medical knowledge of a woman’s body and her sexuality.  Following Galen some medieval authors thought that if a woman did not have sexual intercourse, a ‘semen’ produced by the uterus would spoil and corrupt her blood.  Her unsatisfied libido would lead to hysteria.[72]  The judges in the papal curia would have also read about the sexual frailty of women in the canonistic commentaries.[73]   Consequently, if his wife wanted to have intercourse, Walter was obligated to render the conjugal debt.  They argued that the wife had incurred no guilt (culpa) in Walter’s crime.  One may justly ask, ‘how was that possible’?  The papal judges explained their decision.  If the wife had knowingly participated in Walter’s crime (e.g. by her tacit or verbal consent) she would have  lost her conjugal rights.  However, the judges quoted a maxim that was new to canonical jurisprudence but would remain a part of the Ius commune for centuries: ‘Nemo non debet privari iure suo sine culpa’ (No one may be deprived of her right without fault).[74]  The papal court had used the maxim several years earlier in a German case that was similar to Walter’s.  Both decretals made the point that earlier decisions of Pope Alexander III got the jurisprudence wrong:[75]  Walter’s wife could not be guilty (culpa) if the crime were manifest (under the assumption that she must have known of Walter’s crime even if she denied knowing) or if the consanguinity were close — using the same reasoning.[76]  Rather, if the court had determined that she had not known or consented to the crime, she was innocent.  Whether the crime was manifest or if there was close bond of consanguinity should not be decisive factors when determining her guilt.  By this time the papal court had developed a doctrine of precedent (stare decisis), but only if the precedent was just and reasonable.[77]  It this case, the curia decided Alexander’s decisions were not.

Summary Procedure and Due Process

The rules and regulations that governed summary procedure have misled scholars who have tried to interpret court documents, court cases, or statutes.[78]  Torture and its role in the courts have also been misunderstood.    The development and origin of summary procedure bears a resemblance to the evolution of  inquisitorial procedure.[79]  Both first emerge in the practice of the courts and are later incorporated into the law of the church through legislation.  The ecclesiastical and secular courts began to streamline some of the procedural rules in the courts early in the thirteenth century.  The phrases that were used to indicate a shortened procedure were ‘de plano et absque iudiciorum strepitu’,  ‘simpliciter et de plano, ac sine strepitu et figura iudicii’ and also ‘‘simpliciter et de plano, ac sine advocatorum strepitu et figura iudicii’.  There were other slight variations as well.   Pope Gregory IX used ‘de plano et absque iudiciorum strepitu’ for the first time in a papal decretal between 1227 and 1234 dealing with the reform of a monastery in Rouen.[80]  There is evidence dating to 1248 that the shortening of procedure in secular arbitration provided litigants with a quicker and less expensive way to deal with legal problems.[81]  The application of inquisitorial procedure to eradicate the scourge of heresy may have been another avenue on which the idea of streamlining the rules of procedure began.[82]  Heresy was perceived to be a dangerous threat to society, and therefore heretics must be dealt with quickly and efficiently.  The phrase reached the highest levels of society.   In a contract of peace between King Alexander III of Scotland and King Magnus of Norway in 1266, all disputes in the future over the terms of the treaty were to be decided ‘de plano et absque strepitu iudiciali’.[83]  Whatever and whenever were its origins, the papacy laid down the rules for summary procedure in decretals popes Boniface VIII and Clement V and Council of Vienne at the end of the thirteenth and the beginning of the fourteenth century.  These rules were formulated by papacy and the jurists of the Ius commune and adopted by secular and ecclesiastical courts.[84]  

If the origins and early development of summary procedure remain murky, the legislative origins are well known.[85]  A dispute between the Emperor Henry VII and Pope Clement V created the necessity of promulgating new legislation in the fourteenth century.[86]  Henry had issued an imperial decree, Ad reprimendum in which the emperor declared that he could dispense with many of the normal rules of procedure in the case of summary trials for serious crimes like treason, especially the norm that the defendant must be summoned and be given a public trial.  Treason  always had its special rules and exceptions from ancient Roman law to the early fourteenth century.  Henry or his jurists borrowed the idea that procedural short cuts could be taken from canon law.   Canonical procedure had long recognized that certain serious matters should be handled swiftly and without delay.  The canonists created summary judicial procedure that proceeded ‘simpliciter et de plano, ac sine strepitu et figura iudicii’ (simply and plainly, without clamor and the <normal> forms of procedure).  Henry incorporated canonistic jurisprudence into Ad reprimendum and explicitly adopted it when he condemned Robert of Naples for treason in absentia.[87]

            The result of these events and legislation must have led to confusion in the papal curia, the schools and the courts.  The Council of Vienne (1311-1312) had recently defined summary procedure with the canon Dispendiosam.2  This canon had simply listed which cases could be treated summarily — benefices, tithes, marriage, and usury — but not how they were to be handled. [88]  The jurists must have disagreed over exactly what could be omitted.  Some may have thought that Henry could take procedural short cuts during Robert's trial because the clause ‘simpliciter et de plano, ac sine strepitu et figura iudicii’ had never been carefully defined.  They noticed the problem, and as Johannes Andreae wrote that he was responsible for pressing the lords and lawyers of the curia to define the words ‘de plano sine strepitu et figura iudicii’.[89]

            The result of Johannes’ blandishments, the confusion, and, probably, the practical needs of judges was Saepe contingit.[90]  It was a constitution, and Clement issued it ‘proprio motu’ — that is the pope had no reason or motive other than that he wished to change the law.  Its provisions conformed to the doctrine governing the judicial process developed by the jurists and established by another decretal of Clement V,  Pastoralis, in which the pope had declared that a defendant’s defense in court had been established by natural law.[91]    In the Clementines it was placed under the title ‘The significance of words’ because, by defining the words ‘de plano sine strepitu et figura iudicii’, it drew the boundaries of how abbreviated summary judicial procedure could be.  Clement first specified the areas that a judge could trim from the judicial process: The "libellum" was not required; holidays must not be observed; objections, appeals, and witnesses could be limited.  However, Clement insisted that a judge may not omit necessary proofs or legitimate defenses from the proceedings.  A summons and an oath denying calumny cannot be excluded.[92]

            Lawyers, the jurists and the courts still needed Saepe to be interpreted.  Johannes Andreae, who wrote (ca. 1322) the Ordinary Gloss to the Clementines, the official collection of canon law that contained both Pastoralis and Saepe, underlined the significance of Saepe by glossing and lecturing on the new decretal soon after its promulgation, even before Pope John XXII issued the Clementines on 1 November, 1317.[93] 

            Other canonists responding to the need were quick to gloss the Clementines.  Johannes Andreae, Guillielmus de Monte Lauduno,  Jesselin de Cassagnes, and Paulus de Liazariis all glossed the Clementines shortly after their promulgation and posed new questions about the rules of procedure and explored other areas of law that might be regulated by principles of due process based on natural law.[94]

            The canonists did not treat, acknowledge or cite Emperor Henry VII's constitution Ad reprimendum that contradicted papal legislation and canonistic commentaries on the necessity of due process in summary proceedings.  In the mid-fourteenth century, the famous teacher of Roman law, Bartolus of Sassoferrato, wrote an extended commentary on Henry’s decree ca. 1355.  It became the Ordinary Gloss to the decree when Ad reprimendum was placed among the other medieval imperial decrees that were added to the body of Roman law.[95]  The canonists may not have been willing to recognize Henry's constitution, but Bartolus knew the canonistic literature and interpreted Ad reprimendum through the procedural norms and rules that the canonists had created.  His ‘pro-papal’ commentary on Ad reprimendum is surprising only if one would view a fourteenth-century civilian anachronistically: a jurist who put the interests of universal empire before national kingdoms, Italian city-states, or the Church.  In his commentary on Ad reprimendum Bartolus dealt not only with procedural norms but confronted the entire range of problems that jurists had raised about imperial and princely power for centuries.

            Ad reprimendum had established two points: Emperor Henry VII could summon Robert of Naples to his court, and he could dispense with the normal rules of judicial procedure.[96]  To the second point Bartolus acknowledged that the constitution had to be interpreted through Pastoralis and Saepe.  A judge is obligated to observe all the judicial norms that have been established by the law of nations and natural reason.[97]   Bartolus  discussed all those parts of the judicial process that he thought were essential.   Although he seems to have held the view that actions themselves were part of the civil law,[98] a summons was necessary; God had, after all, called  Adam to judgment.[99]   Petitions, exceptions, delays, and proofs must also always be allowed because natural law had instituted them.  Even the legal maxim that someone may not be judged twice for the same crime is a precept of natural law.[100]  Therefore, although the significance of the words ‘sine strepitu et figura iudicii’, is that a judge's will is freed of the rules of the civil law, he must nevertheless preserve the equity and the norms of the law of nations and natural equity.  The old question of the podestà is thus solved: the podestà may dispense with the solemnities of law, but he may not perpetrate an injustice.[101]  Bartolus's reinterpretation of the key clauses of Ad reprimendum might be cited as another example of his willingness to subject imperial to papal prerogatives, in this case imperial law to papal.  But one must recognize that his interpretation of Ad reprimendum reflected the jurisprudence of the Ius commune.

            Bartolus's student, Baldus de Ubaldis, accepted the provisions of Pastoralis and Saepe completely.  The prince was obligated by all parts of the judicial process.  He could not deprive a defendant of his defense in court.  The prince had an obligation to summon a defendant, because a summons is established by the law of nations.  The prince must examine the truth in a courtroom  because the search for truth is a mandate of the law of nations.[102]

            Summary procedure was not a subversion of due process but only a shortening of some parts of the trial.  Mengho, Pedecolo, Sandrolo and their successors, even the devil himself, must be given their full rights, without exception, in the courts of the Ius commune.[103]  They generally, if not always, were.  One should not, however, overlook the use of torture.  It took some time before jurists and legislators recognized how torture violated the rights of defendants.