Full and Partial Proof in Classical Canonical Procedure

The Jurist 67 (2007) 58-71 FULL AND PARTIAL PROOF IN CLASSICAL CANONICAL PROCEDUREt J a m es A. B r u n d a g e * New methods for settling civil disputes and punishing crimes began to take shape in Western Christendom during the closing decades of the twelfth century. By the middle of the thirteenth century the main features of a new system of civil and criminal procedure, which contemporaries described variously as the ordo iudiciarius, ordo iudiciorum, or ordo iuris, had emerged.1 Ecclesiastical and civil courts that followed the Continental ius commune employed it in every comer of Western Chris­ tendom. Although some of its features derived from the Roman law of late antiquity, the ordo iuris also drew heavily from ecclesiastical sources.2 Accordingly it is sometimes described as romano-canonical procedure. Popes and church councils continued to modify its details through the latter part of the thirteenth and the early fourteenth centuries. The appearance of the ordo iuris marked a radical shift away from practices, notably ordeals, that earlier medieval societies used to deal with dispute resolution and crime.3Many of its fundamental features re­ main with us to this day. It must rank among the most long-lived and farreaching changes in Western history. + This is a lightly revised version of a paper presented at the annual meeting of the Re­ naissance Society of America in San Francisco on March 24, 2006. * Professor of History, University of Kansas 1 For the history of the system’s origins and early development Linda Fowler-Magerl, Ordo iudiciorum vel ordo iudiciarius: Begriff und Literaturgattung, Ius commune, Sonderhefte , vol. 19 (Frankfurt: Vittorio Klostermann, 1984) is indispensable, as is her Ordines iudiciarii and Libelli de ordine iudiciorum,from the Middle ofthe Twelfth to the End of the Fifteenth Century, Typologie des sources du moyen age occidental, fasc. 63 (Turnhout : Brepols, 1994). I am greatly indebted to Dr. Fowler-Magerl as well for sharing with me a draft of her study, “Judicial Ordines and Their Circulation” forthcoming in volume 8, part 1, of the History of Canon Law, ed. Wilfried Hartmann and Kenneth Pennington. See also Kenneth Pennington, “Due Process, Community, and the Prince in the Evolution of the Ordo iudiciarius,” Rivista internazionale di diritto comune 9 (1998) 9-47. 2 On the Roman law of proof in the classical period see Giovanni Pugliese, “La prova nel processo romano classico,” Jus 11 (1960) 386-424. 3 John W. Baldwin, “The Intellectual Preparation for the Canon of 1215 against Or­ deals,” Speculum 36 (1951) 613-626, and “The Crisis of the Ordeal: Literature, Law, and Religion around 1200,” Journal ofMedieval and Renaissance Studies 24 (1994) 327-353; Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford: Claren­ don Press, 1986; repr. 1988), pp. 70-102; Paul Hyams, “Trial by Ordeal: The Key to Proof in Early Common Law,” in On the Laws and Customs of England: Essays in Honor of 58 FULL AND PARTIAL PROOF IN CLASSICAL CANONICAL PROCEDURE 59 The ordo iuris wove into the fabric of Western thought some basic legal principles and concepts that we now take for granted—although perhaps we shouldn’t. Among the most important of these are idea of due process of law,* 4 the presumption of innocence,5 the privilege against self-incrimination,6 and the belief that in a just society everyone, rulers and their agents as well as their subjects, must obey the law or be held re­ sponsible should they fail to do so.7My purpose here is to sketch briefly just some of the innovations in the law of evidence that became current during the thirteenth century. Samuel E. Thome, ed. Morris S. Arnold et al. (Chapel Hill: University of North Carolina Press, 1981) 90-126. See also the criticisms ofthese views by Richard M. Fraher, “IV Lateran ’s Revolution in Criminal Procedure: The Birth of Inquisitio, the End of Ordeals, and Innocent Ill’s Vision of Ecclesiastical Politics,” in Studia in honorem eminentissimi cardinalis Alphonsi M. Stickler, ed. Rosalio Castillo Lara, Studia et textus historiae iuris canonici, vol. 7 (Rome: Libreria Ateneo Salesiano, 1992) 97-111. 4 Kenneth Pennington, The Prince and the Law...