Published as "Law, Criminal Procedure," Dictionary of the Middle Ages: Supplement 1 (New York: Charles Scribner’s Sons-Thompson-Gale, 2004): 309-320
The Development of Criminal Procedure in the Ius commune
Ken Pennington
Revolution of Procedure in the Twelfth Century | Criminal Procedure in England | Criminal Procedure in Bologna | Norms of Criminal Procedure |
Peine (Prison) Forte et Dure | Due Process and English Law |
Law, Criminal procedure. Late antique Roman law
shaped the definition of criminal law for jurists in the Middle Ages and
established many of the norms of its procedure. Roman law defined criminal
offenses by individual statutes, not by the categories of civil and criminal
wrongs . In the late empire trials for criminal offenses were conducted using
many of the same procedural norms that were used to try civil cases. The Roman
court procedure was called a
Cognitio
(judicial examination) and in the late empire was known as the Cognitio
extraordinaria or extra ordinem. Roman magistrates sat as judges, the testimony
presented to the court was written, and the norms governing the procedure were
extensive. Roman rules of procedure did not distinguish between for civil and
criminal offenses. However, Roman statutes dictated that special procedural
rules could be used for certain crimes. For example, torture could be used in
particularly heinous crimes like treason against the emperor. Although citizens
and children below the age of twelve could not normally be tortured, slaves
could be tortured for a variety of reasons. Persons of humble status seem to
have been tortured with some regularity in the later empire. Torture could not
normally be used to extract testimony from witnesses in civil offenses. In
general the same procedural norms were used for both criminal and civil trials
in the late Roman Empire.
In the period before the revival of Roman law in Italy during the late eleventh
and twelfth centuries, there was no procedure that was specifically criminal. In
the early Middle Ages Germanic procedure of the ordeal (iudicium Dei, judgment
of God) was used throughout Europe. The ordeal did not distinguish between
criminal and civil offenses because Germanic custom did not distinguish between
these two categories. Furthermore, legal procedures in the Early Middle Ages
varied greatly from place to place. Roman procedural norms lasted and persevered
in Southern Europe much more than in Northern Europe. Some Germanic customary
codes included some Roman procedural practices.
We can glean information about early medieval procedure from these Germanic
codes. The Burgundian Code regulated the behavior of judges and listed the
persons who could exercise judicial authority in the Burgundian kingdom. There
were rules for presenting testimony in court. When plaintiffs and defendants
attempted to prove their cases, they called witnesses who would swear oaths that
attested to the truth or justice of each side. This oath was called compurgation
and was taken on a sacred object. Sometimes the compurgators (oath-takers) and
the defendant would place their hands on the same object at the same time.
Procedural rules established how many compurgators were necessary to establish
someone’s innocence from a particular particular accusation. The Burgundian Code
dictated that if an oath-taker perjured or was suspected of perjury the parties
would then resort to judicial combat (a type of ordeal) in order to settle the
matter. If combat determined that the witnesses on one side had perjured
themselves, all the witnesses were fined. If the compurgators failed for some
other reason, the ordeal was used to decide a case. Salic law ordained that
oath-takers could be summoned to court even if they were unwilling. Salic law
also stipulated that if a defendant had no oath-takers he would be subjected to
an ordeal.
Oaths of purgation remained an important part of medieval criminal procedure
even after the age of the ordeal. Although capital punishment was ordained for
some very serious crimes like treason, the punishments for crimes in the
Germanic codes were often monetary fines, even for very serious crimes like
murder. There is, unfortunately, only incomplete evidence about the procedure of
the ordeal and its use. This lack of evidence has not prevented scholars from
vigorously debating its effectiveness and its efficacy.
When the Emperor Justinian codified Roman law in the sixth century, his jurists
collected all the statutes governing criminal law in Book nine of the Codex and
the jurists’ commentaries on criminal law in Books 47-49 of the Digest. After
the revival of Roman law in the twelfth century,
sixth-century
Roman classifications and jurisprudence provided the foundations of the
distinction between criminal and civil law in European law from then until the
present time. The Roman jurists defined criminal trials as public in contrast to
private judicial proceedings. The main offenses that they classified as criminal
were treason, adultery, sodomy (criminalized and condemned only after the empire
became Christian), murder, patricide, embezzlement, violence and violent acts,
counterfeiters, arson, perjury, sacrilege, kidnaping, and extortion. They also
defined criminal procedure as capital and noncapital. Capital proceedings were
those in which the penalties could be death or exile; noncapital trials levied
fines or corporal punishments. A person who has been convicted in a criminal
trial became “infamous (infamis),” a legal status (infamia) that rendered the
person unable to bring accusations against others or to testify in court (except
in special circumstances).
The
Revolution of Procedure during the Twelfth Century
Accusatorial Procedure (Ordo iudiciarius)
Medieval conceptions of authority and power were intimately connected with
judicial procedure. In the early Middle Ages, disputes were settled by ordeals
and by rudimentary court procedures based on written and oral evidence.
Customary usages regulated court procedure, not written jurisprudential norms.
In this age without jurists, without lawyers, and without judges who were
trained in law, the rules of procedure were often uncertain and tentative,
especially in difficult cases. Literary sources give us some evidence that
before the thirteenth century, the prince or judge did not exercise his public
authority in the courtroom. Rather, the community under his lordship gathered
around him in court. They dictated the course of a trial and determined its
outcome. With the revival of Roman law and the emergence of canon law as a legal
system at the beginning of the twelfth century, the role of public authority in
medieval courts changed dramatically. Princes and magistrates left the periphery
of the judicial system and took their place at the center of it. Justice in the
early Middle Ages had been a community affair, but as ecclesiastical courts and
secular courts adopted new rules that the jurists called the ordo iudiciarius
princes in both spheres discovered a new and powerful instrument of governance
when they exercised their authority as judges.
There were two revolutions of procedure during the twelfth century. First the
Romano-canonical legal process, ordo iudiciarius, replaced ordeal, a system of
procedure in which oral and written evidence presented in a court took the place
of the hot iron or judicial combat. The ordo iudiciarius became the model for
the secular and ecclesiastical courts on the European continent. We shall see
that only England remained outside this development.
This revolution of procedure or modes of proof for civil and criminal cases
began long before the Fourth Lateran Council forbade clerical participation in
the ordeal in 1215. From at least 1150
on, when
the evidence becomes plentiful, church courts all over Europe had almost
completely abandoned the ordeal as a mode of proof for deciding ecclesiastical
cases. This fact is attested by the vast number of twelfth-century papal
decretals that describe implicitly and sometimes explicitly the procedures of
the ordo iudiciarius. At the same time the jurists who commented on the texts of
canon law unanimously condemned the ordeal as a legitimate form of procedure. It
was, as one jurist concluded, tempting God to ask Him to judge human guilt.
The centralization of papal legislative and judicial power in the eleventh
century had introduced far-reaching changes in how ecclesiastical justice
functioned. The Dictatus papae of Pope Gregory VII stipulated that “no one shall
dare to condemn one who appeals to the apostolic chair.” Appeal from the
decision of an ordeal that embodied not the judgment of man but of God was
logically and theologically impossible. The inexorable logic of the pope’s
dictum demanded that the old systems of proof not be used in church courts. As
the papal court became the court of appeal for all the courts in Christendom,
ecclesiastical procedure had to adapt to a system of proof that was based on
evidence. The jurists helped to clarify the principles of the new procedure.
Sometime before 1141, Bulgarus, the famous doctor of Roman law, wrote a short
ordo that summarized the rules of procedure for Haimeric, the papal chancellor.
Within a few years other jurists were writing tracts on criminal law. In a
Tractatus criminum that an unknown jurist wrote ca. 1160 for secular judges the
author treats at some length the rules of procedure by which a plaintiff could
bring a suit. These tracts provide good evidence of the revolution that was
taking place in European continental courts. Many of the procedural norms that
the jurists established were taken from ancient Roman legal texts culled from
Justinian’s codification of Roman law.
Papal letters also provide evidence of the change. Litigants and institutions
obtained letters from the papacy guaranteeing that their cases would be heard
according to the ordo iudiciarius, a clear indication that they wished to
protect themselves from other forms of proof, the ordeal or other forms of
procedure that violated the principles of the ordo iudiciarius.
The new procedure took root slowly in some parts of Europe. Although jurists
produced scores of treatises that described the rules and procedures of the ordo
iudiciarius during the twelfth century, local customs were resistant to change.
Many courts in Southern Europe may have long rejected the ordeal, but pockets of
resistance to the ordo iudiciarius remained. In particular the jurists gradually
eliminated the community, the “vox populi (voice of the people),” as a
participant in the judicial process. By taking procedure out of the hands of the
community and placing it squarely under the authority of the ecclesiastical
prince they centralized judicial authority. Only in England did the community
preserve its role and voice in court through the jury.
In the twelfth century, the new
accusatorial procedure was dangerous to local interests, usurping the
authority of the community to render justice. The new
procedure would not have
been victorious if it had not offered better justice than the ordeals. By the
second half of the twelfth century, criticism of one form of local justice, the
ordeal, was prevalent and persuasive. As the ordo was established as the sole,
legitimate mode of proof in ecclesiastical tribunals, the jurists in the schools
needed to justify its substitution for other modes of proof. Although they might
have pointed to its use by the ancient Romans, they preferred to cite biblical
examples. Their reliance on the Bible is another example of its importance for
the legal culture and jurisprudence of the Ius commune.
The jurists found their inspiration in the Old Testament and ingeniously traced
the origins of the ordo iudiciarius to God’s judgment of Adam and Eve in
paradise. By doing so, they created a powerful myth justifying the ordo that
retained its explanatory force until the sixteenth century.
Around 1150 Paucapalea was the first canonist to connect the form of procedure
used in ecclesiastical courts with a biblical model. He noted that the ordo
originated in paradise when Adam pleaded innocent to the Lord’s accusation in
Genesis 3.12. When Adam complained to God that: “My wife, whom You gave to me,
gave [the apple] to me, and I ate it,” he responded to God’s summons, “Adam ubi
es?” “Adam, where are you?”. Although Paucapalea may not have been aware of the
implications of Adam’s cheeky reply to God, Adam came dangerously close to
accusing the Lord of entrapment, a term in Anglo-American law used to describe a
situation in which a government agent induces a person to commit a crime.
Paucapalea’s main point was subtle and was not lost on later jurists: even
though God is omniscient, He too must summon defendants and hear their pleas.
Besides the text from Genesis, Paucapalea cited a passage from Deuteronomy in
which Moses decreed that the truth could be found in the testimony of two or
three witnesses. Since the rules of the accusatorial procedure also required two
or more witnesses, Deuteronomy was further proof of the procedure’s antiquity.
Two principles emerge from this gloss that do not enter English common law until
centuries later. The first is that every accusation requires at least two
witnesses to the crime; the second that defendants have the right to testify in
their own defense.
A few years later (ca. 1165) Stephen of Tournai further dissected the “trial” of
Adam and Eve finding even more evidence that this event marked the beginning of
the new procedure. He
pointed
out that each part of the story conformed to the stages of a trial and labeled
each part with the appropriate technical term. He noted that Adam raised, as it
were, a formal objection (exceptio), to the Lord God’s complaint (actio) and
shifted the blame to his wife or to the serpent. “Exceptio” and “actio” were
technical terms taken from Roman law that had already become essential parts of
the ordo iudiciarius. Stephen was the first jurist to define the new procedure:
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 has
been convicted or confessed. The decision must be in writing.
The story of Adam and Eve’s trial in Genesis provided a historical, theological,
and judicial justification for Romano-canonical accusatorial procedure.
The second revolution was the change from an accusatorial to an
inquisitorial mode of proof. Although
“inquisition” and “inquisitorial” have taken on very negative connotations in
English, the word as used in this context only means “investigation” by an
appropriate magistrate. The twelfth century saw a pervasive change in the
perception of a prince’s or judge’s duty and obligation to prosecute crimes.
This change is more difficult to track than the disappearance of the ordeal.
Under the rules of the ordo iudiciarius a private plaintiff had to make his
accusation to the court in writing. He must include the name of the defendant,
the crime of which he has been accused, the place, and date. The plaintiff had
to present sureties (fideiussores) to the court who would vouch for him The
defendant was also required to present sureties. The main point is that a
plaintiff could not depend on a prince, a judge, or a magistrate to bring
someone to justice. The injured party bore that responsibility. Unlike the
modern world there were no public officials whose duty it was to seek out
criminals and prosecute them for their crimes. Only after the plaintiff had
presented his accusation to the court, could the defendant be summoned and
coerced to present evidence and witnesses in his defense.
The reputation of a criminal could be a cause for a judge to summon a defendant
to clear his name. The mode of proof that had been used for centuries to restore
the reputation of the accused was the oath of compurgation. The church courts
adapted the oath of compurgation and used it as a device to examine clerics who
were accused of crimes. They called this procedure canonical purgation (canonica
purgatio). They named the procedure through which a cleric could restore his
good name an “inquisition (inquisitio).” An ecclesiastical judge could summon a
cleric accused of crimes to undergo canonical purgation. The development of this
procedure probably led to the adoption of a more general investigation of
criminal accusations by a judge.
There has been scholarly debate about when the doctrine and practice of
inquisitorial procedure was established. Most scholars have concluded that Pope
Innocent III (1198-1215) brought this procedure into existence. The lack of
sources make it difficult to know exactly when this significant change occurred
in European courts, but it is more likely that Innocent was responsible for
shaping the rules governing this procedure rather than inventing it. The most
recent scholarship (Kéry) has demonstrated that prelates had been ordered to
investigate (inquisitio veritatis) since the pontificate of Pope Alexander III
(1159-1181). No one, however, denies that by the end of the pontificate of
Innocent III the obligation and the duty of bishops to prosecute clerical crimes
had become firmly established as an important part of ecclesiastical procedure.
A signpost of this development is the birth of an important maxim of criminal
law, publicae utilitatis intersit ne crimina remaneant impunita (It is in the
interest of the public good that crimes do not remain unpunished). Ne crimina
remaneant impunita became a standard maxim of the Ius commune in the later
Middle Ages. It was used by the jurists to signal the duty that princes and
judges had to prosecute crime. Like many of the rules of law that became part of
medieval jurisprudence, elements of the maxim had its origins in Roman law, but
its final form was shaped by the medieval jurists of the Ius commune.
The maxim was born in the Roman chancellery during the first years of Innocent
III’s pontificate. In a letter to the king of Hungary Innocent demanded that the
king take action against the criminals who had committed crimes against the
Church and used ne crimina remaneant impunita to urge the king to act . A few
years later the pope used the maxim again in a decretal to the archbishop of
Lund (Sweden) in 1203. The bishop had asked Innocent two questions. First
whether he could imprison incorrigible clerics who persistently committed
crimes. Second if he could give judicial orders to laymen instructing them to
seize criminal clerics, even violently, without suffering the penalty of
automatic excommunication that was normally imposed on laymen who perpetrated
violence on clerics. In the name of law and order, Innocent permitted prelates
in Sweden to jail clerics who persistently committed violence. They could also
delegate the task of forcibly apprehending these criminals to laymen because
publice utilitatis intersit, ne crimina remaneant impunita. The jurists quickly
adopted the maxim as a fundamental principle of medieval criminal law. By 1210
Tancredus of Bologna began his important tract on criminal law with the words:
'Quoniam rei publice interest ut crimina non remaneant impunita', and the maxim’s
career was established. More importantly the maxim signaled that the Church
would no longer depend upon the accusatorial procedure to bring criminal clerics
to justice. Prelates had a duty to prosecute crimes for the public good.
At the end of his pontificate Innocent III promulgated a decree at the Fourth
Lateran Council (1215) that laid down extensive rules about how and when an
ecclesiastical judge could prosecute criminals under his jurisdiction. This
conciliar canon, Qualiter et quando (c.8), established basic rules for
ecclesiastical judges to investigate and punish criminal clerics. Its provisions
were based on a number of earlier decretal letters that Innocent’s curia had
sent in answer to questions that judges had posed about the rules governing
court procedure. The rules of procedure for the accusatorial procedure had been
well established. When one party brought suit against another and the judges sat
as a arbiters in the proceedings, the judges were disinterested parties when
they applied the rules governing and protecting the rights of each litigant.
However, when judges had initiated a prosecution, their role and their
relationship to the defendant changed significantly. From the first year of
Innocent’s pontificate judges from various parts of Christendom asked the Roman
curia for guidance about these issues. Their questions and Innocent’s responses
to them was not, most likely, the creation of a new procedure, but the gradual
resolution of procedural questions raised by ecclesiastical judges who were
beginning to play a more active role in prosecuting crime.
Consequently at the end of his pontificate Innocent issued Qualiter et quando in
which he summed up the rules that were scattered among his decretals. The first
and most important point that Innocent made was that prelates had the right and
the duty to prosecute criminal clerics. Just as jurists had used the biblical
story of Adam and Eve to justify the accusatorial procedure a half century
earlier, Innocent cited the Bible and quoted two passages, one from Genesis
(18.21) and the other from the Gospel of Luke (16.2). The first quoted God’s
words to Abraham before he rendered judgment on Sodom and Gomorrha: “I must go
down to see for myself whether they have merited their reputation.” The second
was a proverb of the rich man who had heard that his steward had mismanaged his
affairs. “What do I hear about you? Either you must explain your actions or you
can no longer exercise your office.” Innocent had first used these biblical
passages years earlier in a previous decretal letter. These biblical passages
became powerful justifications for inquisitorial procedure.
The Fourth Lateran canon instructed judges to investigate and prosecute clerics
whose crimes were well-known. Innocent noted that the accusatorial procedure was
not being replaced but that ecclesiastical judges should not have any scruples
when they opened an investigation of clerical misdeeds. The pope insisted that
all the procedural protections that were granted to defendants in accusatorial
procedure were also given in this procedure. Defendants had the right to defend
themselves with testimony, witnesses, and exceptions as well as replications
(judicial replies to specific charges). The defendant should also be present at
the trial.
The jurists defined the jurisdiction of a judge who investigated a criminal as
being based on his office (ex officio suo). The judge would summon witnesses and
make defendants swear that he would respond to questions but not, as is often
asserted, that they must tell the truth. If the witnesses produced incomplete
proofs, then the defendant could clear his name by taking the oath of canonical
purgation. If oathtakers declared the defendant innocent, he was freed without
any penalty or infamy. The jurists who first commented on the conciliar canon
thought that the only new element in the procedure was that the defendant had to
be present at the hearing. The question arose because in the accusatorial
procedure litigants were often represented in courts by proctors. Later jurists
and legislation concluded that defendants could be represented by proctors when
the accusation was not serious.
The inquisitorial procedure got its infamous reputation as the procedure used to
prosecute heretics during the Middle Ages. It has been often asserted in popular
and even in scholarly literature that the inquisitorial procedure was invented
to combat heresy. As we have seen it was a procedure that developed slowly and
it evolved primarily with the purpose of giving judges new authority and
jurisdiction to prosecute public crimes. Nonetheless the inquisitorial procedure
was adopted to combat heresy. In fact the procedure was in some ways not
suitable for prosecuting secret crimes.
Heresy had long been a crime in Christendom and was a criminal offense in
ancient Christian Roman law. During the early Middle Ages in the West, heresy
was not a crime that seems to have be prosecuted with regularity. During the
eleventh and twelfth centuries that changed. Secular and ecclesiastical rulers
began to view religious dissent as a serious threat to society. Popes began to
issue new legislation that dealt with the problem. Pope Alexander III
(1159-1181) promulgated a decree at the Third Lateran Council (Sicut ait beatus
Leo) which listed the penalties for convicted heretics. Shortly after in 1184
Pope Lucius III (1181-1185) issued a decretal (Ad abolendam) in which he
described the procedure that bishops should use in the trials of heretics. He
mandated that bishops actively root out heretics by summoning persons who had
been accused by reliable witnesses to their courts. Secular rulers were required
to assist episcopal judges. It stipulated that those lay rulers who refused to
help the bishops would be punished. Lucius declared that he acted with the
consent of the Emperor Frederick I and with the advice of his bishops. At the
same time Frederick issued statutes that subjected convicted heretics to the
confiscation of their property and exile. If they did not go into exile, they
were executed.
Pope Gregory IX (1227-1241) established the first inquisitors. He sent
especially appointed judges to seek out and prosecute heretics. These
“inquisitors” as they came to be called established courts whose sole competence
was the crime of heresy. They could not prosecute other crimes. They used the
inquisitorial procedure. Although historians have pointed out that these judges
often broke the rules that governed inquisitorial procedures, other scholars
have identified the misconduct of judges as being the norms of the procedure
rather than departures from legal rules. The most common misconceptions about
inquisitorial courts that prosecuted heresy was that torture was regularly
employed, that defendants had no rights to counsel, and that the sentences of
the inquisitors could not be appealed (Fried and Kelly).
The rules governing the inquisitorial courts prosecuting heresy did depart from
normal due process. Innocent III had declared that heresy was the equivalent to
treason against the emperor. Consequently inquisitorial courts employed the
procedural rules for treason. These norms were, particularly when misused by
over enthusiastic judges, violations of due process. Under certain conditions
torture could be used, and the names of witnesses could be suppressed when the
judges thought that their lives might be threatened by the defendants.
The most important development in the procedural rules for the inquisitorial
procedure was the development of “summary procedure” during the thirteenth
century. The clause that mandated this procedure for cases that should be
expedited in the interests of the litigants read: “simpliciter et de plano et
absque strepitu et figura (simply and plainly without clamor and the normal
forms of procedure).” Canonical procedure recognized that certain serious
matters should be handled swiftly and without delay.
At first this procedure caused confusion. Judges were not sure what could be
omitted. Inquisitors sometimes used this procedure to expedite trials and to
deny defendants their rights. Pope Clement V promulgated a decretal Saepe
contingit in 1314 that was incorporated into canon law. In Saepe Clement
specified where the judge could take shortcuts during inquisitorial procedure.
The book that detailed the case was not required, holidays must not be observed,
objections (replicationes), appeals, and witnesses could be limited but not
omitted. The pope insisted, however, that a judge may not omit necessary proofs,
the summons, or legitimate defenses from the proceedings. As we will see below
the norms governing the criminal inquisitorial trial conform almost exactly to
the doctrine of due process that is found in modern legal systems. During the
rest of the Middle Ages inquisitorial procedure was used in secular and
ecclesiastical courts on the European continent and in the ecclesiastical courts
of England. It established the foundation of procedure used in civil law courts
today.
The operation of the inquisitorial procedure can be clearly seen from the
abundant court records in the Italian city states. In December 1299 Vecto, the
criminal judge of the Podestà of Bologna, began
an investigation of Mengho, son of Ugolino, who had been accused of robbing the
store of a silk merchant (Kantorowicz, no. 21). Vecto ordered a knight (miles)
Lazario to conduct an investigation. On the 5th of December Lazario supervised
the testimony of nine witnesses and had their testimony recorded. Some of them
reported that Mengus was a robber and had a bad reputation. Others claimed that
they thought that Mengho was good or that they did not know him. Several
testified that Mengho was suspected of the crime. On the same day Lazario and a
notary searched Mengho’s house. They found four skeins of silk. It was
identified as the stolen goods. Mengho was brought before Vecto at the bench for
criminal offenses next to the new city hall in Bologna. Vecto questioned him
about the evidence and the crime. The testimony of the witnesses was read to
Mengho in Italian. He denied everything. On the 7th of December Mengho was
tortured under the supervision of four magistrates and a notary. He confessed,
and the notary recorded it. More goods were recovered. Once he had admitted to
stealing the silk, Mengho confessed to numerous other crimes over the past few
years. On the same day, he confirmed his confessions before the court and judge
Vecto. His confession “added or subtracted nothing” to the written report of
submitted by the notary who had heard his confession. Mengho “persisted and
persevered” in his confession when he repeated it before the court. 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 a grave presumption of guilt and if a defendant
refused to confess, the defendant could be tortured. Torture, however, should be
used only as a last resort and only 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. As Johannes Andreae
noted several decades later the statutes of the Italian cities prohibited
torture unless there was a grave presumption of guilt. In this 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. 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. By
the end of the thirteenth century, the rules of inquisitorial procedure
promulgated by Pope Innocent III had become part of the criminal justice system
on the European continent.
The Development of
Criminal Procedure in England
Criminal
procedure in England developed different modes of proof from those of the Ius
commune on the continent. English criminal law in the Middle Ages centers on the
word felony. The Latin words “felo”
(felon) and “felonia” (felony) were coined
in the twelfth century and were not unique to English law. At first the word was
applied to the feudal relationship in continental feudal law and meant a man who
betrayed the trust of his lord. A “felo” was a traitor. The punishment was the
loss of his fiefs and the disinheritance of his heirs.
In medieval English law, at a very early time, a “felonia” meant a serious
crime, not necessarily treasonous, for which the defendant was threatened with
loss of property or body parts. The crime had nothing to do with the feudal
relationship. It has been suggested that calling a crime a felony enabled judges
to apply the penalty of confiscation of property (escheat), to which feudal
vassals were subject, to non-feudal crimes. The convicted defendant lost his
real property to his lord and his chattels to the king. By the middle of the
thirteenth century the great English jurist whom we refer to conveniently as
“Bracton” discussed felony in several sections of his treatise on the laws of
England. Bracton mixes the meaning in feudal law with the English meaning of
some sort of a serious crime, robbery, theft, rape or murder. Courts, judges and
lawyers imposed the terminology and the logic of penalties taken from
continental feudal law on English society. The development did have long
consequences. The dead hand of feudal law cast a shadow over English law until
the Abolition of Forfeitures for Treason and Felony Act 1870 abolished
confiscation of defendant’s goods for felonies.
Due Process in English Law
A defendant could be indicted and brought to trial in two ways: either through
an indictment by a jury or by an “appeal of felony” by the victims or their kin.
The indictment, presentment, or accusation of a jury was a twelfth-century
procedure that appears for the first time in the Assize of Clarendon (1166). The
Assize ordered that twelve lawful men of the hundred and four of the township
should inform royal judges if there were any persons who had committed or were
suspected of serious crimes. Those accused by the jury should be arrested and
brought before visiting (itinerant) justices.
If the justices found that the accusations had
merit, the accused were subject to the
ordeal of water. If the accused were not convicted by the ordeal but had bad
reputations, they were sent into exile. This procedure is the ultimate origin of
the jury trial in common law. It is noteworthy that the English King Henry II
(1154-1189) began the public prosecution of criminals at the same time that the
inquisitorial procedure was evolving in ecclesiastical courts.
When the Fourth Lateran Council forbade
clergy to participate in ordeals English courts had to find some other mode of
proof. At first there seems to have been chaos. The Statute of Westminster of
1219 instructed justices to imprison those accused of serious crimes, exile
those accused of less serious crimes, and take security from those who had
committed minor offenses to ensure their good behavior. No trials were possible
because there was not, it seems, an appropriate procedure.
The jury became the vehicle that replaced the ordeal.
Another jury of neighbors, the petty jury,
evolved to replace the ordeal. It was the petty jury that decided on the guilt
or innocence of the accused. We cannot follow its development precisely but was
fully in place by the second half of the thirteenth century. Since the defendant
would quite naturally believe that his neighbors might be prejudiced against
him, he had to consent to be subject to the judgment of the jury. If he did not
consent, he could be imprisoned until he consented or he could be subject to
peine (prison) forte et dure. This procedure used a
form of torture to coerce the defendant into submitting to a jury trial. If a
defendant died while being tortured, his property was not confiscated because he
had not been convicted as a felon. Only in 1772 was this barbarous rule
abolished and a refusal to submit to a jury trial became a conviction. In the
early juries sometimes the same persons would serve on the jury of indictment
and the petty jury. In 1352 a defendant was granted the right to challenge a
juror who had served
on the panel that accused him.
An appeal of felony was a form of self-help that began early. Bracton had
already mentioned it as a remedy (fol. 427), but the procedure seems to have
been formalized ca. 1300. Victims of a felony crime or their kin would submit a
written appeal to a court. This procedure bears some resemblance to the
accusatorial procedure on the continent. By the fourteenth century English court
records also show traces of the Ius commune. Royal commissions to investigate
crimes resemble inquisitorial mandates on the continent and include the formula
that “we do not wish that crimes remain unpunished (si perpetrata fuerit
relinquere noluimus impunitam),” which echoes the maxim that crimes should not
be left unpunished for the public good on the continent. Even though a felony
conviction meant the confiscation of the defendant’s goods, victims had little
hope of recovering their chattels until 1529. In a statute of Henry VIII (21
Henry VIII c.11) victims who had brought a defendant to trial on appeal and had
provided evidence bringing about a conviction might have their goods restored to
them.
The felonies of murder, manslaughter, theft (larceny) and robbery accounted for
most of the criminal trials in the Middle Ages. Less frequent felonies in the
records were arson, forgery, counterfeiting, rape, false prophecy, breaking out
of jail, and witchcraft. Grand Larceny was distinguished from petty larceny by
the value of object. A crime of twelve pence or more was grand larceny. The
penalty was death. King Edward III and his judges in the 1340s decided that
counterfeiting was even worse than a felony: it was treason. This change in
English criminal law was probably influenced by the jurists of the Ius commune.
They had long connected counterfeiting money with treason.
English law in the Middle Ages evolved
due
process for defendants much more slowly than did continental law. If English
courts did permit defendants to have witnesses testify for them before the
sixteenth century (and we are not sure if they could) the accused had
no powers
to summon them. The courts did not permit witnesses testify for defendants in
crimes of felony or treason until the sixteenth century. Those accused of
treason could not have the benefit of counsel until 1696 in cases of treason and
1836 in felonies. In contrast, the rules of procedure of the continental Ius
commune gave the defendant an absolute right to defend himself in court and to
present witnesses on his behalf since the end of the
thirteenth century (see
below).
The Procedural Norms of
Criminal Trials
The most common misconception that emerges from the pages of books dealing with
crime and procedure in the medieval and early modern periods is that
inquisitorial procedure had rules that violate modern conceptions of fairness
and justice. At the very core of the modern conception of the right to due
process is the idea that litigants have a right to have their case heard in
court and that this right cannot be taken away (under normal circumstances).
From the point of view of a person living in the twelfth century, the most
disconcerting and distressing issue about the dramatic changes in procedure that
occurred during their lifetimes was uncertainty about their rights. The
community participated and controlled the ordeal. A litigant could exercise
self-help and bring his claim to the attention of a judge in the accusatorial
procedure. How did a wronged litigant gain the ear of a judge in an
inquisitorial court? These changes occurred as the system of justice became the
preserve of magistrates and professional jurists. The result was that most of
the local community was excluded from the courts.
A key issue became whether a person had a right to a trial. Twelfth-century
jurists inherited a vague sense of a right to a trial from Roman law. The term,
“actio,” could mean the particular formulary of Roman procedure by which the
plaintiff brought suit, the whole judicial proceedings, or, as a passage in
Justinian’s Institutes puts it, “the right of an individual to sue in a trial
for what is due to him.” In this last sense “actio” meant “ius” or right. At
first the medieval jurists wavered whether a litigant had a right to receive
justice and to have his case heard in court.
The jurists tentatively raised the issue in various ways. Fowler-Magerl has
described what she sees as a significant shift of emphasis in the judicial
procedure of the twelfth century. In classical Roman law, litigants had very few
rights to intervene in or to alter the pace of proceedings. The Romans
considered procedure as an indispensable extension of public authority. Medieval
jurists saw it as a right of the litigants. In Roman law, the litigants could
not object to a judge whom they considered partial nor could they delay
proceedings easily. In contrast, medieval rules of procedure granted litigants a
range of devices with which they could control the tempo of a case. They could
raise objections to the plaintiff, the judge, and the witnesses and thereby
delay or stop the course of a trial.
Most legal systems of any sophistication have some conception of “due process”
in their procedure as well as at least the germ of the idea that a defendant has
the right to be heard. The strictures of the Old Testament and Roman law
required that a defendant be given an opportunity to defend himself in court.
Even in the world of the ordeal the right to a trial can be seen. A man (or a
woman) had the right to prove his innocence. In the Romance of Tristan, after
King Mark condemned Tristan and Isolt to death without a trial when they were
caught in “flagante delicto,” the people of the Kingdom cried out: “King, you
would do them too great a wrong if they were not first brought to trial.
Afterwards put them to death.” Although the people’s plea might seem to be a
simple cry for fair play, the jurists were confronted with great difficulty when
they confronted notorious crimes like Tristan’s. They did not find it easy to
justify a right to a trial for a defendant who had been caught in the act of
committing the crime.
We know almost nothing about the norms governing judicial process in the early
Middle Ages, but from the ninth century on there is substantial evidence that a
defendant’s right to a trial was an accepted norm. In the twelfth century
Gratian (ca. 1120-1140) collected a number of texts in his Decretum (C.3 q.9),
where he treated the question whether someone may be accused in absentia. A
Pseudo-Isidorian text attributed to Pope Callistus expressed the general idea
most precisely: “No one may sentence and no law may condemn someone who is
absent.” This chapter, included in a x-large number of collections from the
eleventh and twelfth century, repeatedly reminded canonists that a defendant
must be canonically summoned and publically convicted. In his famous decretal
Venerabilem (1202), Pope Innocent III stated that if a defendant had not been
cited, witnesses could not present testimony against him. Consequently, the
general principle that defendants must be summoned to court and given an
opportunity to defend themselves was well established in the Ius commune.
Defendants did not, however, have an absolute right to a trial before the
thirteenth century. The jurists attempted to draw distinctions between those
crimes that required a trial and those that did not. For the canonists the locus
classicus for this question was C.2 q.1 of Gratian’s Decretum. Gratian included
texts that permitted a judge to condemn someone without a trial if his crime was
“manifest” or “notorious.” Later canonists refined and altered these concepts.
In the end, however, the jurists commonly agreed that under certain
circumstances, usually when a crime was heinous and notorious, a judge could
render a decision against a defendant without a trial.
The question was not just theoretical. It had already surfaced during the great
conflict between Pope Gregory VII and the Emperor Henry IV. In 1076 at a Lenten
Synod in Rome Pope Gregory VII excommunicated the German bishops who had taken
part in the Synod at Worms. Gregory’s summary action led to an exchange of
letters between Bernoldus and Adelbertus of Constance and Bernhardus of
Hildesheim. Bernhardus insisted that Gregory did not have the right to
excommunicate the bishops without a trial. He conceded that if the bishops had
been summoned, but refused to appear, their condemnation would have been
justified. Bernoldus insisted, however, that the pope could excommunicate
criminals without a trial if their crimes were public and they were
contumacious. Petrus Crassus raised the same issue when he defended Henry IV in
1084. Citing texts from Roman and canon law, Petrus insisted that since Gregory
had refused to hear the king’s advocates and had condemned him in absentia, his
sentence was not just.
In spite of objections, the pope’s right to render a sentence without granting
due process became well established. The thirteenth-century jurist, Hostiensis
(† 1271) defended Pope Innocent IV’s deposition of the Emperor Frederick II at
the First Council of Lyons in 1245 effortlessly. Notorious crimes, he concluded,
particularly those committed against the Church, need no examination.
A primary reason why the jurists accepted the right of the prince to subvert the
judicial process was that they considered legal procedure (“actiones”) to be a
part of the civil law, that is positive law, and, therefore, completely under
the prince’s legislative and administrative authority. Since the early twelfth
century, the jurists had difficulty limiting the prerogatives of the prince that
were established by the rules of positive law. For procedure a further
difficulty lay in the mythological history of law that every law student read at
the beginning of Justinian’s Digest. Two texts provided authoritative proof that
“actiones” were a part of positive law. In one the Roman jurisconsult Papinianus
had declared that the Praetorian law, the Roman law governing procedure, was a
part of civil law. In the other Pomponius, described the origins of the
“actiones” in the early history of Rome at the time of the Twelve Tables: “the
three laws were born, the laws of the Twelve Tables, and from these tables arose
the civil law, and from them actions of law were composed.” Consequently, by the
early thirteenth century, the jurists unanimously agreed that the “actiones”
were a part of the civil law. Accursius summed up their thought when he wrote in
his Ordinary Gloss to the Digest that in contrast to contracts, “actiones” are
derived from the civil law, as Pomponius had noted in his history incorporated
into the Digest.
In the second half of the thirteenth century, the jurists reconsidered the idea
that the norms of procedure were a part of man-made, positive law.
Paradoxically, at a time when some historians have seen medieval conceptions of
due process rapidly being eroded by the introduction of torture and by a fierce
determination of ecclesiastical and secular magistrates to eradicate crime, the
jurists rethought the origins of the judicial process. As they did defendants’
rights became a central issue.
A small intellectual revolution had to take place, however, before the jurists
could create a coherent argument that asserted the absolute right of litigants
to a trial. They had to take the fundamental procedural norms out of the realm
of positive law and place them in a system of law over which the human prince
had no authority. Consequently, in the second half of the thirteenth century,
the jurists gradually removed “actiones” from civil law and placed them under
the law of nature. Paucapalea’s inspired argument that Genesis 3.12 proved that
the ordo iudiciarius could be traced back to Eden must have prepared the jurists
to think of it as an universal institution rather than solely the product of
civil law. Finding the ordo iudiciarius in the Bible enabled jurists to attach
divine sanction to it. Slowly, they began to argue that the judicial process was
not established only by civil law, but by natural law or the law of nations as
well. And, following the inexorable logic that flowed from that conclusion, they
perceived that since the ordo was sanctioned by the law of nature, the prince
could not violate its basic rules. After a century of dialogue in commentaries,
glosses, and consilia, the jurists established an inviolable right to due
process.
The most sophisticated and complete summing up of juristic thinking about due
process in the late thirteenth and early fourteenth centuries is found in the
work of Johannes Monachus. He was a French canonist, who studied in Paris,
became bishop of Meaux and an advisor to Philip the Fair. He died in 1313. While
glossing a “decretalis extravagans” of Boniface VIII (Rem non novam) he
commented extensively on the rights of a defendant. He began by asking the
question: could the pope, on the basis of this decretal, proceed against a
person if he had not cited him? Johannes concluded that the pope was only above
positive law, not natural law. Since a summons had been established by natural
law, the pope could not omit it. He argued that no judge, even the pope, could
come to a just decision unless the defendant was present in court. When a crime
is notorious, the judge may proceed in a summary fashion in some parts of the
process, but the summons and judgment must be preserved. A summons to court
(citatio) and a judgment (sententia) were integral parts of the judicial process
because Genesis 3.12 proved that both were necessary. Johannes referred to the
history of the judicial process first told by Paucapalea and Stephen of Tournai
and given final form by Guilielmus Durantis in the Prologue of his Speculum
iudiciale. Even God was bound to summon Adam to render a defense. Johannes took
medieval conceptions of due process one step further: Everyone is presumed
innocent unless they are proven culpable (Item quilibet presumitur innocens nisi
probetur nocens); the law is more inclined to absolve than to condemn. Johannes
Monachus was the first jurist to formulate that maxim which is a benchmark for
due process, justice, and fairness in modern jurisprudence. Guilielmus Durantis
stretched this norm to its ultimate extreme: even the devil should have his case
heard in court. An argument might be made that the pope or some other judge
could know the truth about a case from secret sources, but Johannes did not
think that this objection was valid. A judge is not a private person and does
not judge as one. He is a public person, and he should learn the truth
publically. Johannes’s gloss established the rules of due process in the Ius
commune. These rules governed inquisitorial and accusatorial trials throughout
the Middle Ages and beyond.
Many standard accounts of criminal procedure in the late Middle Ages and the
early modern period question that principles of due process were deeply embedded
in the jurisprudence of the Ius commune. Nonetheless, the sources reveal that
these norms were respected even under difficult political circumstances. For
example when judges and jurists had to decide whether Jews were protected by the
same procedural rights of due process in criminal trials, their answer was
always the same: Jews had the same rights of due process as Christians. And if
proofs failed, Jewish defendants, even those accused of heinous crimes, were
presumed innocent. To be sure, the theory did not always find its way into the
courtroom, but the rules were repeated again and again in papal mandates sent to
local judges and to inquisitorial courts. In 1469 Pope Paul II confirmed the
petition of the Emperor Frederick III that absolved Christian judges, notaries,
and scribes who participated in cases involving Jews from any wrong doing. Some
Christian priests had refused to absolve the Christian advocates from their sins
unless they did penance for their work of aiding Jews in court. “Justice,” Pope
Paul wrote, “ought to be common to all, Christian or Jew.” Later popes issued
decretals that specified in great detail the procedural protections that Jews
must be given. A letter of Pope Sixtus IV in 1482 mandated that Jews should
receive the names of their accusers, should be able to present legitimate
exceptions, proofs, and defenses to the court. If their rights were violated,
Jews could appeal to Rome. From the number of times the Roman curia repeated
these admonitions over the next fifty years, theory and practice may not have
always coincided. Several sixteenth-century letters emphasized a Jew's right to
a defense, to have an advocate, and to receive money from supporters for a
defense in heresy and apostasy trials. As Pope Paul III declared in 1535, “no
one should be deprived of a defense, which is established by the law of nature.”
The right to a defense, a lawyer, and the means to conduct a defense were deeply
held principles of justice in medieval continental jurisprudence. By way of
contrast, English common law did not recognize the right of a criminal defendant
to counsel in treason trials until 1696.
In the jurisprudence of the Ius commune, the rights of a defendant were
protected no matter what his or her status, religion, or citizenship. They were
protected from being coerced to give testimony and to incriminate themselves.
They were granted the absolute right to be summoned, to have their case heard in
an open court, to have legal counsel, to have their sentence pronounced
publically, and to present evidence in their defense. These norms governed the
criminal courts on the European continent until the early modern period.
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Kenneth Pennington
The Catholic University of America