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
|Revolution of Procedure in the Twelfth Century||Criminal Procedure in England||Criminal Procedure in Bologna||Norms of Criminal Procedure|
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
(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.
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 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.
Sources: Tractatus criminum saeculi XII, ed. Giovanni Minnucci (Archivio per la storia del diritto medioevale e moderno, Studi e Testi, 2. 1997). Albertus Gandinus und das Strafrecht der Scholastik, ed. Hermann U. Kantorowicz (1907). Linda Fowler-Magerl, Ordo iudiciorum vel ordo iudiciarius (Repertorien zur Frühzeit der gelehrten Rechte, Ius commune, Sonderhefte 19; 1984).
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