29 Descendit Ad Inferos: And Belial Sued Jesus Christ for Trespass

ELTJO SCHRAGE (AMSTERDAM)

Systematic reflection upon the law of procedure as an independent juridical dis­cipline started in the course of the eleventh and twelfth centuries.

The medieval lawyers saw themselves on the one hand confronted with this lacunose state of affairs within the Corpus Iuris Civilis itself, on the other hand with texts concerning the episcopalis audientia and other texts pertaining to ecclesiastical procedures, and eventually with legal practice in the Northern Italian and Southern French cities. Consequently it was at the request of stu­dents and practitioners that the Glossators of the first generations wrote manu­als for the law of procedure so early. From the second half of the 12th century the scholars combined texts taken from the Corpus Iuris Civilis with texts taken from Gratian's Decretum, but both these collections had left many gaps in their discussions of procedural law. The type of literature that thus originated is called ordines iudiciarii (or ordines iudiciorum). Since the recent works of Linda Fowler-Magerl we are relatively well informed about these new branches of the legal tree.

There is, however, a fascinating aspect of this rise of new branches. Teaching law requires the ability to use good illustrations of what is taught. By the end of the fourteenth century an archetype of legal procedure was found, which was to become a stock-example. From the second century onwards there was no more well-known and popular belief among Christians than that pertaining to Christ’s Descensus ad Inferos.¹ This was the belief that between his death and Resurrection Christ entered Hell, preached to the dead, vanquished death, and released imprisoned souls. In a tradition, in which Origen and Tertullian play some part, Christ’s liberation of the captives from Hades and their ransoming from sin are ultimately linked, but there is also an evolving, dramatic develop­ment of the central characters and their actions. Hades and Satan seem to become personified as a result of considerable homiletic development of the Descensus tradition.

Given this theological development, it happened in the course of the four­teenth century that the perspective and viewpoint changed drastically. From a legal point of view it is not impossible to consider Christ’s descensus as an intru­sion into the realm of Satan. Consequently from Satan’s point of view the descensus may be held a trespass and the liberation of the souls as a disturbance of Satan’s possession. That is exactly what is described in the writings, which bear titles like Satansprozesse. Belial files an action against Christ (or against mankind) for trespass and he applies for a restitutory remedy. This procedure is embedded in God’s final discussion of human sin, the last judgment. Against this theological background the stock-example of a law suit develops, a type of lit­erature in which this procedure is described and used as an illustration of every stage of the procedure. The first author seems to be the Naples priest Jacobus de Theramo (1349-1417), who wrote a book under the title Consolatio peccatorum seu lis Christi et Belial.

The work serves as an introduction to the law of procedure, for students, legal clerks, proctors, solicitors and other practitioners. For that purpose it illus­trates every possible stage of the procedure and shows a complete, ordinary pro­cedure, from the beginnings (the citatio) until the final judgment, at first instance and in later stages, including the form in which compromissa are concluded. The legal acts in writing are discussed, the oaths, the hearing of witnesses, etc.

The Belial case is the action of Satan (Belial) against Christ for trespass and for disturbance of Satan’s possession. Satan had been in possession or at least in quasi-possession, and consequently he undertakes a civil procedure, more pre­cisely the actio spolii, which has the advantage, that ante omnia restituatur. But before he reaches that level of thought, he weighs whether it is worthwhile to commence the procedure.² The plaintiff should find a good solicitor and care-

¹J A MacCulloch, The Harrowing of Hell: A Comparative Study of an Early Christian Doctrine (Edinburgh, 1930) 45, quoted by ML Peel, “The Descensus ad Inferos in The Teachings of Silvanus (CG VII,4)”, in (1979) 26 Numen, International Review for the History of Religions 23, at 27 n.15.

² (Observatio 1.1.1): “Cum litis eventus dubius sit, l. Quod debetur, 51 Bart. ff. de pecul. [Bartolus' commentary to D. 9.5.51: cum et sumptus in petendo et eventus exsecutionis possit esse incertus...], etiam in optima causa”. fully contemplate whether he can prove the alleged facts, or not.

After this observation Ayrer asks the question whether it is legitimate to repel force with force (“vim vi quatenus repellere liceat”). He considers five different types of violence, and he discusses the different features of the various applica­ble actions, such as the interdict uti possidetis, the actio vi bonorum raptorum, and the interdict quod vi aut clam. It is lawful to kill the aggressor if this is nec­essary to defend one’s own life or the lives of one’s kin: “Defensio necessaria— Notwehr—ab omni poena excusat”, except in the case of a just and fair castigation of the child by the parents, of the student by the teacher, the labourer by the employer, or the wife by her husband.

Nobody may judge in his own case (“non est singulis concedendum, quod per magistratum publice possit fieri”, D. 50.17.176), and generally speaking the plaintiff is obliged to approach the court of the defendant, but there are quite a few exceptions to that rule, even a few cases recently decided by the Naples Court. Litigation is expensive; advocates and proctors are entitled to remuner­ations but the advice of learned doctors is excessively costly.

After these introductory remarks the story starts.^[909] And Belial starts to argue. The first question is, whether the Lord (God the Father) is indeed the competent judge in a case in which Jesus (God the Son) is the defendant.

As a consequence of the recusatio iudicis proposed by Belial, God in His utmost justice declares himself prepared to turn the case over to a iudex com- missarius. As such he choses King Solomon, who had proven to be a competent judge. The commissio which is needed for that purpose requires a written form. A model of that form is published on p. 27. In the second observation of the sec­ond chapter Ayrer returns to a full theoretical discussion of the recusatio iudi- cis: when it should be proposed, for what reason (consanguinity; hostility), how it is dealt with; the consequences; possibility of appeal, etc.

As I quoted, Belial approached the judge in the company of two witnesses. Ayrer mentioned this detail intentionally, since the number of witnesses is a hot issue in legal scholarship, even today. English law acknowledges the uncorrob­orated evidence of the sole witness. This book shows clearly why at no stage of its development did the civil law reach the same conclusion. The argumentation starts already with the Holy Scriptures (Deut. 17.6): “At the mouth of two wit­nesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death”. And it continues with numerous other Biblical texts, and also quotations taken from the works of Paulus de Castro, Zabarellus, Barbosa, Boerius and others. Even a bishop or a cardinal does not escape this rule. The evidence of the sole witness is only deci­sive if the litigant parties agree thereupon. This consent, however, is already subsumed if none of the parties object to the testimony.

The regulations concerning oral testimonies recur in other chapters.

The summons include the terms of the proceedings, the place where the case will be heard and other details.^[911] Ayrer continues by telling us that Belial lunches

Descendit ad Inferos: And Belial Sued Jesus Christ 357 with his notary and the witnesses and pays them, but more important is that the defendant, Jesus, choses Moses, the Jewish legislator, consequently an expert lawyer, as his defender. Jesus and Moses discuss every struggle with Lucifer which Jesus had gone through before his resurrection, and they agree that Moses will appear for Jesus. The Jews, however, still angry since Jesus had pro­claimed himself to be the Messiah, kept Moses busy, and consequently he for­gets to appear in time before King Solomon, sitting as a judge. After a certain delay Belial asks for his claim to be awarded by default, but Solomon orders by an interlocutory judgment that, since there was a reason why Moses did not appear, he should be set a peremptory day.⁶

Belial protests against this judgment; he is of the opinion that Jesus is guilty of contumacia and for that reason Solomon should have allowed the claim straightaway. Solomon, however, explains that he has given judgment and that the only possible way of getting another result is to appeal to a higher court. This state of procedural facts give rise to theoretical observations concerning the way in which an attorney should be mandated, how the summons should be formulated, how to proceed after an interlocutory judgment, what about the expenses of the witnesses, etc., what contumacia is and how this contempt of court is punished, how to appeal, the content of the mandate of the proctor, the requisites of the summons, and so on.

Belial returns to hell. A dialogue between him and his principal, Lucifer, develops and eventually the infernal spirits declare themselves satisfied by Belial’s efforts to reach an immediate verdict. Moses, as the lawyer elected by Jesus, is discussed. Moses himself is not totally innocent. The spirits deliberate upon the story told in Exodus 2, where Moses killed an aggressor in order to protect another Jew. Upon seeing this Jew being beaten by an Egyptian he defended him, battered the Egyptian to death and hid him under the sand. But according to canon law, killing is only allowed if it is done in obedience to the law. It is illegal if somebody usurps a right which he has not been granted. And the consequences are discussed in C.23 q.5 c.15. The gloss to that text invokes Moses...

Four days later Belial and Moses appear before King Solomon, again sitting as a judge. Solomon took Daniel as his scribe. In the case of the two elders who had accused Susannah of committing adultery and had given witness against her Daniel had proven himself to be a gifted judge, able to do justice, even when

Ladung zu verfertigen, die sol er also bald dem Beklagten Iesu von Nazareth wie sichs nach Gerichts Ordnung geburet Uberantworten...”.

⁶“In Sachen turbatae possessionis unnd beschuldigten spolii, sich zwischen Belial, des hellischen Groβfursten und ganβer Gemein Syndici, Klagers eines, contra Iesum von Nazareth Beclagten anders theils haltendt ist der Bescheidt weil sich der Beclagte Iesus gegen dem Gerichts Frohnen durch seinen Anwaldt auff heut in Antwort zu erscheinen erbotten unnd man noch zur Zeit die Ursach seines Aussenbleibens nit wissen kan, daβ er zum Uberfluβ noch einmal ad proximam peremptorie zu erscheinen citirt werden soll, er erschein als dann in eigner Person oder durch seinen Anwaldt oder nicht, so soll als dann ferners ergehen und geschehen was Recht ist. Publicatum Freytags den 15. April nach Erschaffung der Welt im 3987. Jahr.”

Susannah was already sentenced to death by stoning upon the testimonies of the well respected elders. Solomon proves himself to be the correctly appointed iudex commissarius by showing his letters of commission. Moses recognises the seal: it is similar to the one the Lord had attached to the Ten Commandments, which Moses himself had received on Mount Sinai. The altercation between Moses and Belial commences; they inquire into each other’s standing. Moses raises an unexpected defence: are not those who are banned and relegated incompetent to appear in court?⁷

Belial is frightened, but not intimidated. Although the community of hell has been expelled from heaven they are not to be identified with banned people, since banishment is an individual punishment, and this penalty cannot legiti­mately be imposed upon a population as a whole. And in his turn Belial recalls the story that Moses once battered an Egyptian to death and hid the dead body under the sand for fear of punishment. Moses should be considered as a fugitive, an outlaw who is unable to appear in court. It is Solomon himself who inter­venes and takes the decision: these altercations, although certainly of theoreti­cal interest, do not contribute to the mainstream of the case itself.⁸

It goes without saying, that these proceedings give rise to theoretical obser­vations concerning all those problems which might be of interest to students and practitioners. First of all Ayrer discusses whether an advocate can undertake a case against his lord, a vassal against his feudal lord, a cleric against his church; secondly he discusses the role of mandate. He goes on to discuss whether an excommunicated or banned person may appear in court (not only the two Corpora Iuris and their commentaries play a role, but even the Wormbsische Cammergerichtsordnung of 1495 is quoted in order to find an answer, which is in an affirmative sense, but full of nuances), whether a person in fuga is suspect and which defences can be raised against the lawyers who appear in court. A furiosus, a soldier, a minor, a mute person, a cleric, a woman, none of these per­sons may be appointed as attorney. Various reasons are mentioned, mainly taken form the Corpus Iuris Civilis.

The case resumes. Belial pleads that Lucifer ante omnia restituatur, that the souls which were vitiously taken away by Jesus should be brought back to hell pending Solomon’s decision. Moses, however, quotes D. 43.16.3.9, and Jason de Mayno’s commentary on this text, in order to argue that who in continenti brings back a previously lost possession does not act violently. Belial reproaches Moses for speaking with a tongue which is sharper than a serpent’s tongue, while Moses’ rebuke quotes Pliny N.H. 8.23: it is in the nature of the crocodile that upon seeing a human being he bursts into tears and devours the man: Belial

⁷ “So ist aber dieser Belial so wol als die ganze hellische Gemein die er sich untersteht zu defendirn, umb Maβhandlung willen auβ dem Himmel verstoβen/relegirt, und verbannet worden.”

⁸ “Diese ewere Ausfluchte und Exceptiones wider ewerer beyder Personen verhindern die Haupt- sachen unnd weiβ dennoch niemand was in diesem Puncten zu Recht gesprochen werden mochte. Derohalben so achte ich fur gut, ihr liesset zu beyder Seit diese Disputation fallen unnd liesset uns vermog der Gottlicher Commission versuchen ob wir euch mit einander ohne Weitlaufftigkeit Rechtens vergleichen mochten.”

Descendit ad Inferos: And Belial Sued Jesus Christ 359 cries crocodile tears. In fact the legal problem that lies behind the discussion is the question of which defences can be raised, in which form, how the judge dis­tinguishes between the defence and the essence of the case, and how he has to react after these defences have been raised. King Solomon returns an interlocu­tory verdict.^[912]

Daniel, as clerk, reads the verdict to the parties (in the literature there was a huge discussion on whether the judge himself must read the verdict or whether the clerk might be held competent). After a short discussion on whether the rep­resentative of Jesus Christ—who Himself according to the Scriptures is via, ver­itas et vita—can be obliged to take an oath, Daniel reads the formulas of the iuramentum malitiae and the exceptiones. Moses reads through the Holy Scriptures, from Genesis via the Gospels to the Letters to the Hebrews and Timothy, in order to prove that God created and ever since possessed the world, and he explains the role of the fallen angels. He offers proof by witnesses, e.g. Adam, Abraham, David, John and Peter. The theoretical excursions necessary to elucidate the procedure speak for themselves: what is the nature of a defence? When should it be accepted? Is an appeal from an interlocutory judgment pos­sible (generally not, but there are quite a few exceptions to that rule and in canon law the opposite is customarily accepted). How is oath-taking formulated (by adding a pattern like vivit anima mea, Deus mihi testis, and so on)? What constitutes an oath (iurare est aliquid Deo teste dicere), what are the effects (even a pactum nudum gets actionable after being reinforced by an oath)? Witnesses should generally be summoned, but what if they appear without being formally summoned?

After this theoretical discourse Belial returns to hell and discusses the state of the trial with Lucifer and the other inhabitants. He examines the substantive content of the defence raised by Moses. He confesses that the description of the history of God with His people on the basis of the Sacred Scriptures is quite accurate and cannot be denied, except on a few points only. Belial made the typically seventeenth century argument, that no Jew would believe Jesus to be the Messiah. This leads Ayrer to discuss several questions about the methods of proof by witnesses: can a minor testify? (Generally speaking he cannot, but in a limited number of specific cases he can). And a poor person? An honest poor man, without fear or reason for reproach, who did not fall into poverty through his own fault, can testify. What about a co-pater, an enemy, a person who has committed adultery, perjury, murder? What about parents in a case involving their children, can they testify? This depends on the nature of the case: in mat­rimonial cases there is no reason why the parents should not be heard. Both the

accounts of the different witnesses and the theoretical reflections upon their aptitude play an important role in Ayrer’s book, but suddenly these delibera­tions are interrupted by a very important treatise concerning the judge and his duty.^[913] Many interesting questions turn up once more: the role of the Holy Scriptures in the procedure, the role of the Corpora Iuris. How many persons are required for a fair trial (four, the judge, the witness, the plaintiff and the defendant), is the princeps legibus solutus, but who is the princeps? Unfortunately the treatise is too long to discuss it fully here, but it is certainly worth reading, even after Knut Norr’s magnificent book on the subject.^[914]

Ayrer’s book returns to the theme of hearing witnesses: how many? Are they obliged to take an oath? Is it compulsory to answer questions? (that depends on the question). But in the description of the process itself the witnesses declare that Jesus is the Lord of the world and as the Lord he is entitled to his property. Consequently Lucifer is not qualified to keep the souls of the departed and Belial understands that his request for restitutio in integrum is about to be dismissed.^[915]

Again, this state of affairs gives rise to a number of theoretical investigations. Can in general the text of the summons be altered during the process? Until which stage? Until the final verdict or until the litis contestatio? Does such an emendation or alteration imply consequences for the costs of the procedure? Are father and son customarily identified in law and is indeed the son to be consid­ered as the owner of the paternal assets? Has this identification certain impli­cations for the validity of the evidence? How to interpret the contrary statements of the different witnesses? What about the uncorroborated evidence of the sole witness?—he pleads his priesthood. What about the evidence of a written deed found in a public record office, and what about the books of mer­chants?

In the meantime the judge is approached with a request that Belial, as the plaintiff, be ordered to give security and to take an oath for the legal costs (cau­tio et iuramentum calumniae). Belial finds this the typically deceitful and tricky attempt of a crooked and cunning lawyer.^[916]

It is no problem for Belial to take the oath, but devils are poor and is not poverty a defence against the request for security? And furthermore, which types of oaths (iuramentum respondorum, iuramentum dandorum, iuramen- tum malitiae) can the plaintiff be ordered to take? Belial finds an excuse: the pos­sessors of immoveables are exempt from giving security (quod possidentes immobilia exempti sint a satisdatione; D. 2.8.15pr), but he is eventually pre­pared to give hell as a pledge. Moses is exasperated. No living being on earth or in heaven wants to accept hell, let alone to accept hell as security: imagine! An altercation develops, whether Lucifer, being the Lord of hell, is exempt from giving other than verbal security, and Moses challenges the lawfulness of the possession of the plaintiff.

Thereupon Belial offers the whole world, since Lucifer is called the Lord of the world. But Moses finds an immediate reply. According to John 12.31, Jesus Himself had declared the judgement of this world, that the prince of this world is cast out. Moses, further, contests not only the legality of the possession of hell and the possession of the world, but also Lucifer’s immunity from giving secur­ity.¹⁴ Thereupon Belial offers to mortgage the hidden treasures of the world, but Moses invokes the rules concerning treasure trove in order to show that this offer is unfit to be accepted, since the judge will not be able to order execution. Belial offers suretyship to be given by Cain, the first murderer, and the robber who was crucified at the left side of Jesus, but their assets are insufficient in the eyes of Moses. Cain left only transient goods and the robber’s estate was worth­less as well. This rebuttal gives rise to a discourse as to the circumstances in which a defendant necessarily has to accept a cautio iuratoria. It is obvious that a long recess is needed for the theoretical observations concerning all these pro­cedural problems.

Belial returns to hell and reports to Lucifer. Ayrer describes the meeting, giv­ing a rarely detailed portrait of Lucifer, including his myopia and his spectacles. Lucifer gives Belial power to give a cautio iuratoria, but Belial wants to visit sev­eral universities in order to get sound opinions from the most famous profes­sors, which might be able to persuade the judge. He raises two questions, however. What is the required formulation of the Gewalt in puncto iuratoriae cautionis, and who is able to make a survey of the facts of the procedure, which can serve as a basis for the questions to be asked? The Casus Figuratio is, after all this, not a real surprise.¹⁵

spielt. Dann jeβt da er litem contestirn, una auff meine Klag Articul singulariter singulis respondirn soll, kompt er allererst her, und wil von mir armen Teuffel Caution zum Rechten und das Iuramentum calumniae zu schweren haben.”

¹⁴ “So ist mir auch gewiβ, daβ dir solche Caution auffgelegt were wann du und dein Hellen Furst unnd Geister schon andere und bessere immobilia als die Hell ist vermochten.” Siquidem actor, eti­amsi immobilia possideat bona, nihilominus tamen de expensis in casu succumbentiae cavere debeat.

¹⁵ “I: Ob nicht billich dieser Iesus von Nazareth vor allen Dingen alles das jenig was er auβ der Hellen genommen und polirt, widerumb zugeben und restituirn schuldig sey.

II: Was Straff Iesus von wegen deβ gewaltsamen Beginnens verwircket?

III: Ob nicht Iesus schuldig sey dem hellischen Groβfursten gnugsam zu verburgen daβ er sich

The council of hell considers these questions, and discusses the universities to which to go. Paris is contemplated but Belial chooses in first instance the uni­versity of Athens. Indeed the faculty of law in this university delivers its answers to these questions. So does the second university which Belial approaches, the university of Rome. Corinth is the third university and Paris the last one. Armed with their opinions Belial travels back to the court, where he meets Moses again. Moses presents to the court two persons who are prepared to act as surety: Joseph of Arimathea and Nicodemus. Each of them had known Jesus inti­mately, and they comprehend what they are doing. The two procurators, Moses and Belial, take the iuramentum calumniae and Belial the iuramentum cautionis iuratoriae. He never worried about making a false oath and even this time he does not recoil. There follows again an interlocutory verdict, this time in order to declare the security delivered sufficient. Solomon asks the sureties, Joseph of Arimathea and Nicodemus, whether they understand their promises fully, and whether they are prepared to pay the sums if they become due; Daniel, the clerk, makes up a deed.

And then it is time for the litis contestatio.¹⁶ The written answer replies care­fully to all the positiones taken by Belial right at the beginning of the procedure, and the claim is repudiated. Again all these procedural concepts are amply elu­cidated. Belial and Lucifer consider the third positio and answer the most important part in the affirmative.¹⁷

The proceedings are carefully reported; every rule is observed; every detail scrutinized. Benaia, the son of Ioiada in Judea acts as counsellor and deputy­commissioner. He delivers the summons to the witnesses. We read the text of the oath Daniel has to take, the lines of the oath of the witnesses, the warning against perjury that is read to them, the questions which will be asked, both gen­eral questions (name, age, whether he knows his co-witnesses, is a friend to Lucifer, ever committed manslaughter, homicide or murder; has a reward to expect for his testimony) and specific questions concerning the case and every thesis brought forward by the plaintiff.

Adam declares among other things that the ownership of hell is questioned.¹⁸ King David, however, knows for certain that God has created hell and therefore hinfuhro aller Gewaltthaten enthalten und der Hellen an ihrem Einkommen unnd Possession vel quasi kein Abtrag thun wolle?

IV: Ob nicht billich diβ alles geschehe mit Abtrag der Gerichts Expens und aller anderer Kosten und Schaden?”

¹⁶ “Da begehrte Belial von dem Moyse, auff sein ubergebene Klag ordentlich Antwort und litis contestationem. Moyses ubergab ein Schrifft unter diesem Titel, und eben dieses Inhalts.”

¹⁷ “Bey dem dritten Articul wil er nicht gestehen, daβ die Hell unser Eigenthumb sey und das mussen wir beweisen. Lucifer sprach: Nun wollen wir diesen Articul mit dem Belfebor, welches gar ein alter Teuffel ist, darnach mit dem Cain, welcher der erster Mensch in der Hellen gewest ist, und mit seinem Vatter dem Adam, und mit Dismas, dem Schacher auff der lincken Seiten beweisen. Meynstdu, das seynd Zeugen gnug?”

¹⁸ “Er wisse wol daβ die Teuffel uber 4000 Jahr in der Hell gewest, und daβ Gott die Hell geschaf- fen und die Teuffel darein verstoβen hab. Ob aber jeβo die Hell der Teuffel eygen sey, das wisse er nicht.” is the owner of the place to which He Himself has banned the fallen angels. The form in which hearings, the probationes and eventually the conclusiones by either party will be laid down is amply discussed. Again it would go too far into details to quote every witness, every expert and every conclusion, but eventually King Solomon attains the stage that he can deliberate upon the verdict that is to be reached. Again every answer of each witness, every development in the pro­cedure, every detail, including the legal costs, is discussed. The tension rises. Eventually King Solomon sits down and reads to the parties present the verdict aloud.^[917]

The claim is dismissed. The plaintiff is sentenced to pay the legal expenses. But... there is a possibility of appeal to a higher court, to the iudex ordinarius. We read the instrumentum appellationis and we see quoted the texts concerning the period within which the appeal should be launched. The story continues. There follows a second book, relating the proceedings on appeal. But that will be the theme for another article.^[918] The Doctors have given their opinions. Does Alan Watson agree with his learned predecessors?