Introduction

During the Empire, the formulary system began to yield to the growing legal and administrative power of the state. The move towards the cognitio extra ordinem was underway. The cognitio afforded the magistrate/judge greater flexibility to try cases?⁵ By the third century of the Christian era, the formu­lary system disappeared?⁶ At the same time, as part of an expanding imperial bureaucracy, we find a number of new judicial officials. Among these was the iudex ordinarius, the provincial governor. He took the place of the praetor for his province?⁷ His later incarnation in the twelfth-century ordines will merit frequent discussion.

Let us now consider the Church. Evidence for procedure in the early Christian community is sparse?⁸ Jews viewed the judge largely as an arbi­ter who rendered justice but tried, above all, to restore harmony among the faithful.^[54] The early Church embraced this understanding as well. Confronting the wrongdoer in love, the denunciatio evangelica, would remain in the canon law for centuries to come.^{[55] [56] [57] [58] [59] [60] Various passages in the New Testament admonish the Christian judge, pastor and arbiter, to remember he would be judged more strictly than the rest.21 Equally, the congregation was reminded they were sub­ject not only to their pastor's judgment but also to the secular laws.22}

After the apostolic period, it does not appear that either the procedure of the denunciatio evangelica or the bishop's role as �pastoral judge' appreciably changed.

We move now to the fourth century. Constantine granted numerous legal privileges to Christians, especially their bishops and priests?⁴ Within a few years of defeating his rivals, the emperor established the clerical privilegium fori, which would expand over the course of the century?⁵ Already in his reign, we see the first evidence of the bishop's court, the audientia episcopalis.^{[61] [62] [63] [64]} Imperial laws not only ensured the bishop's exclusive right to judge cases among Christians but also allowed him to hear appeals and even arbitrate secular disputes?⁷ It remains unclear, however, whether both parties had to agree on an appeal?⁸

There were many reasons why Constantine and his successors enlarged the bishop's jurisdiction. Piety and patronage undoubtedly played a role. From the emperor's perspective, there were practical benefits as well for encourag­ing litigants to seek the bishop's court. Some scholars have argued this was a conscious effort to reduce the press of litigation in secular courts. Others have viewed the emperor's promotion of the audientia episcopalis as an attempt to direct cases away from corrupt secular judges?⁹ Of the two, among many other explanations, the first is particularly persuasive. Since the bishop was considered an arbiter from whom no appeal could be made, cases sent to his court would have lightened the load of the magistrates.^[65]

There is ample evidence that both Christians and pagans came to the bishop's seat^[66] One reason why litigants, regardless of religious beliefs, sought his judgment was the inherent violence of secular procedure^{[67] [68] The audientia must have been a welcome alternative to torture and capital punishment, though occasionally blood was still shed.}

What took place in the audientia episcopalis remains unclear. From councils, as early as Serdica in 343, we know that bishops discussed procedure.^[72] Serdica treated appeal at some length^[73] There was, however, no attempt to stan­dardize practice. Even if there is evidence that, by century's end, the secular cognitio extra ordinem shaped the audientia, the bishop essentially remained an arbiter^[74] How he judged was not fixed in writing, even if we do have some evidence of written statements and oaths from the parties.^[75] Thus, when Augustine invoked the �judicial order' in a sermon he was not referring to some sort of procedural code^[76] He meant respect for good order and authority^{[77] [78] [79]}

There was no standardized legal education for a bishop. Formal study of the canons lay centuries in the future. As for the secular law, most bishops would have received some exposure to it through their rhetorical education, part of the classical trivium.43 Many possessed a good deal of general, and sometimes technical, legal knowledge.44 Some had gained this from their secular careers prior to entering the priesthood. Ambrose of Milan is a good example. From letters discovered four decades ago, we find as well that Augustine both gave legal advice and sought counsel from an advocate concerning a civil dispute^[80] Bishops could appoint someone to hear the case and request leading members of the community for assistance.^[81] This extended the bishop's access to legal expertise as well as his network of patronage.

The audientia was not confined to spiritual matters. From arguments con­cerning inheritance and property to violence towards women, the bishop's court was anything but removed from the world?^[82] How clergy were tried varied according to office?^[83] a practice observed as well at the secular courts, where the procedures and punishments pertaining to elite and common, the honestiores and humiliores, differed?^[84] Sometimes lower clergy also sued their superiors to influence or shame them.^{[85] [86] [87] [88] [89]}

Despite the apparent willingness, even enthusiasm, demonstrated by the imperial government and its citizens to turn to the ecclesiastical courts, there was always friction between secular and sacred jurisdictions. The Roman law was not easily adaptable to the ideals and practices of the Church. While secular law could accept the bishop as an arbiter, his authority and power clearly differed from those possessed by laymen?¹ His status was uncertain?² Jurisdictions between secular and ecclesiastical courts also were often indis­tinct, which could lead to conflict and unjust decisions?³ Perhaps this is why, by the late fourth century, emperors began to restrict some of the bishop's judi­cial powers.54 The consent of both parties was now required for judgment by the bishop.^[90] The Emperor Honorius declared that the bishop's judgment was only arbitration, and not to be confused with secular judgment. Purely civil disputes were now to be heard exclusively by the imperial courts.5^[91] Elsewhere, the Theodosian Code (Cod. Th. 16.2.23) declared that ecclesiastics did not have to attend the secular court. However, it also made an exception: priests accused of criminal acts.5^{[92] [93] This will be the vital issue centuries later in the conflict between Archbishop Thomas Becket and King Henry II of England, a conflict forming the backdrop to the ordines of the late twelfth century we shall examine.}

The civil laws of the fifth and sixth centuries provide information about ecclesiastical procedure, at least from the emperor's viewpoint. The ecclesi­astical forum is treated in all the major collections, and ultimately, Justinian's Corpus iuris civilis.5^s They focus on the bishop's jurisdiction. None, however, reserved a discrete place for all ecclesiastical process.5^[94]

The ecclesiastical councils of late antiquity, and the early canonical collec­tions that transmitted their canons, provide information about procedure.^[95] They defend the separate sphere of the ecclesiastical court and threaten those, presumably clerics, who might consider turning to a secular judge in hopes of a better settlement, for example, due to family ties or relationships established through patronage.^[96] In the special case of bishops having to deal with her­etics in the secular court, for heretics threatened both church and state, they were allowed to appoint procurators to represent them^[97] Canons treat certain legal responsibilities pertaining to the bishop, notably his protection of the poor and weak and jurisdiction over clergy^[98] He continued to be exhorted to arbitrate in the hopes of achieving a compromise^^[99] How this was to be accom­plished, however, was not defined^[100]

This lack of prescription in procedure highlighted a fundamental principle found in the earliest canon law: �non-contradiction.’ Unlike modern, secular legal systems open to change through to new statutes or precedents, one could not simply dismiss a decree of an earlier council in favor of a more recent decision at another meeting or a letter sent by a pope. As an ancient maxim put it, the canons, provided they were authentic, were �diverse, not adverse.’^[101] Accordingly, all sacred texts were potential sources for theory and practice; this �open’ nature of canon law would persist for centuries^[102] Only with the advent of the scholastic method would a dialectical hermeneutic attempting to solve these contradictions begin to appear^[103] Thus, for centuries, there would be no normative text, or series of texts, to fix proper procedure in the ecclesiasti­cal court.

While scholars debate the degree to which Roman law continued to be understood and used in the early-medieval West, it unquestionably survived, if incompletely, in southern Europe. The assumption that the invaders clung to their own laws has been effectively challenged and, given the evidence that those learned in Roman law counseled the early Germanic kings, these may have been far more receptive to the Roman legal tradition than assumed by older scholarship ^{[104] [105] [106] Testaments retained Roman terms and forms. 7° Law provided a bulwark to protect the rights and properties of the elite. Here, the specialized terms of Roman law in formularies provided valuable support. 71}

The �law-making’ of the early-medieval barbarian kingdoms �replicated an archetypal function of Roman imperial sovereignty.’^{[107] [108] [109] [110] [111] [112] [113] [114] [115] [116]}

The passage of time did not appreciably change the bishop’s legal power. He remained, first and foremost an arbiter, if one with considerable power, both formal and informal, at his disposal?³ If sufficiently literate and sup­ported by a trained staff and adequate library, he had numerous laws, both secular and sacred, to guide him. However, this body of law remained unfixed, as noted above, an â€?open’ system circulating maxims and rules?⁴ From these, the bishop could choose what best fit the circumstances?⁵ Without schools, jurists, and codes to regulate the boundaries and content of procedural law?⁶ the division between secular and sacred law remained blurred and sometimes contested.77

The letters of Pope Gregory the Great give some insight into ecclesiasti­cal procedure in the early Middle Ages?⁸ Like Augustine before him, Gregory invokes ordo iudicis and ordo iudiciarius; however, he provides more detail. This is particularly evident in his letters written concerning the appeal of a Spanish bishop who claimed he had been unfairly deposed, 7⁹ After empha­sizing the need for the trial to be legally conducted?⁰ Gregory notes that the plaintiff and witness must be different, with the latter having to take an oath as well. The trial must take place in the presence of all parties?¹ In these letters and elsewhere,^[117] he referred to both the Codex and Digest.^[118] While Gregory never provided anything like a thorough treatment of the audientia episco­palis, his letters did build a bridge to convey procedural texts and concepts from Antiquity to the Middle Ages.8^[119]

Roman procedure was preserved, if only in piecemeal fashion, in Bishop Isidore of Seville's Etymologies, the seventh-century encyclopedia of secular and sacred knowledge^[120] In book two, Isidore considers legal process under the rubric of forensic rhetoric^^[121] later, in book five, he defines terms like the law of nations (ius gentium), along with witnesses and legal instruments, for example testaments.8^{[122] [123] He briefly treats mandate, pact, possession, and inheritance.8,8 His survey of the civil law was, however, scarcely adequate. For example, he never treats the stages of the trial. The Etymologies offer a very incomplete dic­tionary, not a procedural treatise[124]}

While they describe procedure neither fully nor in detail, there are other legal texts from the early Middle Ages that consider the bishop's jurisdiction^[125] That jurisdiction was founded upon worldly wealth and patronage, coupled with religious authority and power. Behind him stood as well the sainted bishops who had governed his see.^[126] (We should not forget that the saints themselves were viewed as intercessors at the heavenly court as well.)9^[127] Despite these resources, his legal authority was often challenged. A good example is the sanctuary his church was supposed to guarantee^[128] Ideally, this would provide safety and sufficient time for him to intervene and, ide­ally, restore peace between a fugitive and those who, rightly or wrongly, sought vengeance. Reality was another matter. Bishop Gregory of Tours reveals in his sixth-century History of the Franks that sanctuary was all too often violated by those willing to defy the bishop's power and risk the wrath of the saints.9^[129]

We find instances of secular government pushing back against the clergy and their bishop. A royal synod held in 517 at Epao permitted laymen to accuse clergy and demanded an ecclesiastical penalty for criminal clergy^[130] In response, bishops sought to defend and expand their legal power. Ecclesiastical councils in Francia for the remainder of the sixth century and beyond opposed such royal restrictions and demanded that clergy be protected from secular legal harassment and violence and cases be heard only by their bishop^[131] Some bishops also claimed the right to hear purely secular disputes between laymen^[132] Conflicting claims over jurisdiction would only grow over time^[133]

The forgeries attributed to “Pseudo-Isidore” were the most lasting contribu­tion to procedure from the Carolingian period. That these forged papal letters and conciliar canons exerted an enormous influence over later canon law and, beginning with the Investiture Contest, papal administrative and legal power needs no extended treatment here.^[134] Procedural issues abound through­out the forgeries, for example in the Capitula Angilramni and the Benedictus Levita.^{[135] [136] [137] Suffragan bishops chiefly concerned the forgers, who sought to defend them against both their ecclesiastical superiors and those beneath them, lesser clergy and laymen.™ They did this in various ways, for example by inventing exceptions to delay and frustrate the metropolitan’s judgment and, if these failed, fashioning new ways to appeal to distant Rome.ω2 They invoked the ordo iudiciarius by declaring that ancient authorities had demanded an open trial for clergy, especially bishops.[138] [139] [140] [141] [142] [143] Elsewhere, immunity from any civil judgment was granted to all clergy, including monks and women in religious life. We find as well a declaration that the â€?life of those making the accusation first had to be discussed,' a clear indication that even charging a cleric was not going to be easy.ω4 As if these forged capitularies were not enough of a warning to potential accusers, we find another text declaring that anyone who â€?frequently sues not be received in court without examination.^5}

There were practical reasons why the forgers wanted to prevent, or at least hinder, their accusation and prosecution. When summoned by his archbishop, a bishop wanted ample time to mount his defense. No less important was the need to have his office and its possessions be restored if he had been deposed. A bishop wanted his day in court, and not be tried in absentia. He expected his accuser and witnesses to be carefully examined.^ω6 Such concerns, driven by the self-interest of clerics in ninth-century Francia, would later figure in the Church's procedural law thanks to the forgeries' reception by later canonical collections and, ultimately, Gratian's Decretum.^w7

No Frankish bishop in the ninth century was more powerful, more sure of his legal authority and power, than Hincmar of Rheims. Hincmar contributed to procedural law in various works that would pass down to later canon law. His letters reflected an exalted view of the metropolitan office.10⁸ He chal­lenged the clerics ordained by his defiant nephew, Bishop Hincmar of Laon, and declared that even in manifest crimes he could convict and condemn without trial.^[144] Even a Frankish king could feel his wrath.^{[145] [146] [147] [148]}

Like the clergy of Late Antiquity, none of these men was formally trained in the law. Legal texts were first encountered in the trivium’s grammar and rhetoric.111 One remarkable feature of the so-called â€?Carolingian Renaissance' is the number of surviving texts, for example glossaries, designed to instruct and aid the student.ⁿ² These sometimes were appended to legal texts.ⁿ³ Another example of how rhetorical instruction might convey some knowledge of pro­cedure is evident in glossed manuscripts of Isidore of Seville's Etymologies, book 5 (treating law);^{[149] [150] [151] [152] [153] [154] [155] [156] glosses to manuscripts of Pseudo-Isidore also occa­sionally note process.115}

In addition to texts, men also learned the law, as they always had, through consultation. Occasionally there is some evidence of this.ⁿ⁶ For example, the Miracles of Saint Benedict record a dispute between the monasteries of Fleury and Saint-Denis where men skilled in the law, legum doctores, were consulted. Having decided on a judicial duel, one broke ranks and, arguing that a com­promise was more appropriate, was able to persuade them to move the case to Orleans for a second opinion from more learned men.^u7

Rent by civil war and invasion, the Carolingian empire fractured dur­ing the ninth century.ⁿ⁸ It proved ever more difficult to emulate and imple­ment the classical, Roman governmental and legal models that had so inspired Charlemagne and his circle of advisors.ⁿ⁹ At the same time, what the Carolingians had achieved was not forgotten, and their influence, for exam­ple through the capitulary, survived amidst the turmoil and also crossed the channel.1²⁰ Older canonical collections were copied; new ones, some chrono­logically, others, thematically-arranged, were compiled.121 Bishops continued to meet. Their councils treated points of procedure.^{[157] [158] [159] [160] [161] [162] [163] [164] [165] In their canons, we find references both to older canon law and recent decretals from Pope Nicholas 1.123 Manuscripts also contain new copies of older civil law texts, for example excerpts from the Theodosian Code.™4}

While bishops held their audientia, there were some changes underway. Already in the reign of Louis the Pious, Charlemagne’s son, resident courts held by counts and bishops appeared in what would soon become the East Frankish kingdom.12⁵ Their decisions (placita) provide some information as to procedure, for example the use of witnesses and oaths, though these reports must be treated with caution.™

Charlemagne had established the missi dominici, officials appointed to travel in order to make sure his decrees were followed and that his govern­ment and the church were in good order.12⁷ Among their number were bish­ops. While their jurisdiction over clerical disputes was assumed, in practice, royal power was often involved as well.12⁸ Missi were responsible for settling lay conflicts, a process that involved negotiating, and often clashing, with secular legal authorities.12⁹ These disputes drew in elites, their supporters, and even the local populace, all complicating the process of resolution.™

During the ninth century, these episcopal burdens of mediation and judg­ment, already considerable, became even weightier. In the east, the Sendgericht appeared.^{[166] [167] [168] [169] [170] An initiative of reformers, the Sendgericht functioned rather like a circuit judge and his staff. A bishop and his assistants travelled periodically throughout their diocese to check on clerical and lay discipline and to hear and judge disputes.i'12 In theory, if not always practice, the bishop was supposed to undertake this visitation regularly; often he was accompanied by an arch­deacon or archpriest to handle less-pressing cases.i33 In their presence, men were sworn to reveal all crimes or breaches of ecclesiastical discipline that had occurred since the previous visitation.^4 The conciliar decrees and episcopal statutes prescribing, and extending, episcopal visitation were eventually gath­ered into collections like the Libri duo of Regino of Prum and passed on to later compilations.i35}

Another procedural legacy of the Carolingians that survived into the tenth century, before its transformation by political and social forces associated with the �feudal revolution,’^{[171] [172] [173] [174] [175] [176] [177] [178] [179] [180] was the advocatus. As Charles West notes, these lay­men representing clergy at court, whether royal or comital, were to be learned and skilled in the law.137 Hincmar of Rheims, always zealous in defense of ecclesiastical rights, especially his own, had enthusiastically supported this office, which acted as a barrier to the penetration of secular law into the church.^8 Hincmar drew, and not always clearly or faithfully, from both civil and canon law to support his position.^9 The advocate, however, did more than defend the immunity of the ecclesiastical foundation he served; he was also active, as West demonstrates, in court to represent and advance his patron’s interests, above all in property disputes, and to aid in the resolution of conflicts?40}

As we move towards the year 1000, the sources continue to shed some light, if faint, on ecclesiastical procedure.141 At least on the surface, little had changed since the fourth century. The bishop was supposed to hear and judge as an â€?interested mediator’ whose arbitration ideally led to compromise and consensus.14² The Sendgericht required him to travel as well. All these require­ments, occasionally fortified by Roman law,143 lay scattered in numerous canonical compilations, but none of these was normative.^ Lay patronage of the church, both monastic and secular, still shaped ecclesiastical judgments.^⁵

When a saint's life, a vita, praised a tenth-century bishop for his fidelity to justice and equity, we rarely have any record of how he had actually judged in his audientia episcopalis.^{[181] [182] [183] [184] [185] Equally, we cannot know whether any bishop who read Regino of Prum ever followed his advice to judge on the circumstances of the case, and not �from his own heart.'i47 Legal procedure continued to be conceived in theological, indeed sacramental and liturgical, ways.w8 Amidst his treatment of penance, Burchard of Worms outlines procedures for the sinner's excommunication and subsequent restoration. However, these bear little if any resemblance to the legal process we shall encounter in upcoming chapters.149 When documents do contain technical terms like iudicium and iudex, judgment/trial and judge, these do not guarantee that a formal trial before a judge ever took placed50}

The language of legal procedure remained theological, a sacramental, penitential conception of law. Separation of theology and law would, in fact, only begin in the twelfth century, and the ordines will witness this develop­ment. For example, Hincmar of Rheims did consider the need for proof,^{[186] [187] [188] [189] [190] [191] and that the judge should reflect on circumstances, for example necessity, before sentencing.i52 However, his language was not at all juridical, at least as under­stood by the authors we shall encounter in later chapters. To Hincmar, what was at stake was the soul.i53 Our ordines’ concern with the body, and the affairs and judgments of this world, will provide a marked contrast to this view of the law and procedure.}

Obviously, the lack of sources is a major reason for our imperfect under­standing of the ecclesiastical court in this period. As we shall see in the next chapter many, perhaps most, disputes never even made it to court. Instead, they were settled by arbitration and compromise, facilitated by secular and ecclesiastical mediators.^⁴ These negotiations were either never written down or have not survived. When disputes went further and left some record, the report is almost always laconic: a dispute took place and was settled, probably by oaths and ordeal. When written law was used in court, it may have been read aloud; this â€?declaration’ of authority likely would leave no trace in any account of the proceedings.155

Very occasionally, we do encounter some evidence.^⁶ Sometimes a noto­rious dispute or contested judgment attracted attention which made its way into a text. An example comes from two eleventh-century German chroniclers who, commenting on an ordeal, a judicial combat, that had taken place shortly before the turn of the millennium, noted that the â€?people’ believed the victim, Count Gero of Alsleben, had been innocent. Their unease with an apparently failed manifestation of divinejustice was confirmed, as is often the case in hagiography, by the intact state of the deceased’s body and clothes. Yet, even in this remarkable text, we have no detail about the process that had led up to the ordeal nor why the â€?people’ had come to question its outcome.^{[192] [193]}

A final text illustrates the challenges of understanding procedure in this period. An act from the late eleventh century recounts a dispute, turned vio­lent, between two French monasteries:^⁸

We have written to those who still live how the abbot of the monas­tery of St. Martial at Limoges, Aldemarus, settled a dispute between the monks of Uzerches and Vigeoise who were contesting over the inhabit­ants, though not living, but dead, on the land called Borda. Strife between the monks of these two houses grew so severe that (there was an attack) and a monk carrying a body on a bier for burial was struck on the head by a sword and died. When he heard this, the venerable pastor (abbot) Aldemarus was greatly disturbed. Aldemarus was now in charge of the affairs of the monastery of Vigeoise and, suffering along with its monks as a father and lord, summoned the man of good memory, Geraldus, abbot of Uzerches. With him and his monks, he settled such malicious madness in the following way. This father (Aldemarus) said most sweetly �Know for certain that we are completely unable to avoid peril to (our) souls unless the deceased of that land (Borda) are divided in turn between the churches (the monasteries). Thus, let no opposition arise to this equitable division, but whoever should die first, rich or poor, great or small, shall be equal to the one who dies next.’ Thus a pact of peace was made between the two churches, which stated that they should take turns receiving the body and income of whomever, rich or poor, came to them, and eternal peace should then last between them. From the many present there at that concord, which was made in the reign of King Phillip and the episco­pate of Wido at the see of Limoges, we especially note three: Gauzfredus, archdeacon of Limoges, mediator of the dispute, Stephen, provost of Uzerches, (another) Gauzefredus, provost of Vigeoise. Attesting that truth is found in the mouths of two or three witnesses,^{[194] [195] [196] may the wit­nesses to this peace firmly stand.}

One moment in a protracted (and unsettled, despite this document) dispute over sepultura, burial rights, between two monasteries^⁶⁰ this act from Limoges gives us a good sense of what was at stake: the income, either from gifts at the burial or subsequent donations by the family, to the monastery fortunate enough to bury the deceased. Along with income came prestige, and connec­tions with the relatives and associates of the deceased. These benefits were worth fighting for. Given the prevalence of feud in the eleventh century, which often involved monasteries and churches, both as victims and actors within the web of violence,161 Abbot Aldemarus had every reason to be concerned. We glimpse the actors involved in the mediation, and their sensible decision, a concord, that was supposed to end the strife. Unfortunately, what again we lack is how the actions unfolded. We are presented with the beginning and end of a story. What took place in the middle, the process, is nowhere to be found. Certainly, there was procedure. There were rules; but these were local, customary, oral, not connected with the written law. Soon, however, we would have not only more records but also new rules. We turn now to the procedural changes in secular and sacred law, changes driven by the renewed study of the Roman Digest and ecclesiastical reform.