Procedure

The canonists borrowed much both from the old Roman texts and from the contemporary Germanic custom. Yet they gave a new twist to both (if only by combining them), and the resulting ensemble was much different from either.

This appears nowhere more strikingly than in the procedure of the ecclesiastical courts. 30.(1) In contrast to both the older Roman and the Germanic systems of procedure, canonical procedure was written. A civil or criminal action could only be commenced by a written complaint or accusation containing a short statement of the facts. The defendant was supposed to reply in writing to the points set forth by the plaintiff or accuser. By the early thirteenth century a written record of the proceedings was required. The judgment had to be in writing, although the judge did not have to give his reasons in writing. Parties examined witnesses and each other on written interrogatories. (2) Testimony, whether

written or oral, was required to be under oath, with heavy penalties for perjury. The oath itself was a Germanic institution, but the canonists were the first to use it systematically as a testimonial device in the modern sense. In contrast to the Germanic system of compurgation (oath-helping), in which a party by oath "purged" himself of charges and others supported him by swearing the same oath, the canonists required a party or witness to swear an oath in advance to answer truthfully any proper questions that might be put to him. (3) Canonical procedure permitted the parties to be represented by counsel, who argued the law before the judge on the basis of the facts disclosed by the evidence. Earlier, both in the classical Roman law and in Germanic law, one who acted for another had assumed the rights and duties of the other; he was a substitute rather than a representative. The concept of legal representation was first introduced by the canonists, and was closely linked with both theological concepts and ecclesiastical concerns.

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The simple procedure was available for certain types of civil cases, including those involving poor or oppressed persons and those for which an ordinary legal remedy wasnot available. It dispensed with legal counsel as well as with written pleadings and written interrogatories. (5) Finally, in criminal proceedings the canon law, in contrast to both the Roman and the Germanic systems, developed a science of judicial investigation of the facts of the case, whereby the judge was required to interrogate the parties and the witnesses according to principles of reason and conscience. One of these principles was that the judge must be convinced, in his own mind, of the judgment he rendered. The system of procedure was said to be designed "to inform the conscience of the judge"____ a phrase later used in the equitable procedure of the English chancery. A

second principle was that the judge must put himself in the position of the person before the court, in order to discern what that person knew and to elicit from him, by subtle questioning, "that which the sinner himself perhaps does not know, or because of shame will wish to hide." 3 1

The emphasis on judicial investigation was associated not only with a more rational procedure for eliciting proof but also with the development of concepts of probable truth and of principles of relevancy and materiality. Rules were elaborated to prevent the introduction of superfluous evidence (matters already ascertained), impertinent evidence (matters having no effect on the case), obscure and uncertain evidence (matters from which no clear inferences can be drawn), excessively general evidence (matters from which obscurity arises), and evidence contrary to nature (matters which it is impossible to believe). ³²

The more modern, more rational, more systematized procedure of the canon law of the twelfth century offered a striking contrast to the more primitive, formalistic, and plastic legal institutions that had prevailed in Germanic judicial proceedings in the earlier centuries.

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Yet despite its sophistication, and despite its emphasis on reason and conscience, the canon law also contained its own elements of magic. These were evident throughout, but most strikingly in the solemn ("or_dinary") as contrasted with the summary ("plain") procedure. Above all, the emphasis on writing was so exaggerated as to strongly suggest a magical element. As Mauro Cappelletti has said,"Procedural acts not reduced to writing were null and void... The judge was required to base his decision exclusively upon the written record." 34 Eventually, in the most formal types of ordinary procedure, the judge did not himself examine the parties and the witnesses but only studied the written record of their examination drawn up by subordinate court officials. This, of course, defeated the original purpose of judicial investigation, which was to enable the judge to form an "inner conviction" of the truth of matters in dispute.

Coupled with the sanctity or magic of the writing was the elaboration of a set of formal rules for evaluating evidence, which existed alongside the rational rules of relevancy and materiality. Two oracular or auricular witnesses were required to establish a fact (although judicial notice could be taken of notorious facts). The testimony of a woman counted only one-half and had to be supplemented by the testimony of at least one man. The testimony of a nobleman counted more than that of a commoner, that of a priest more than that of a layman, that of a Christian more than that of a Jew. The artificial weighing of evidence -- full proof, half proof, one-fourth proof, even one-eighth proof -- assumed increased importance as the judge became removed from the examination of witnesses and had nothing else to go on but the written record.

The rigors of proof, both formal and rational, were such as to make it often very difficult to establish grounds for conviction in criminal cases. ³⁵It was this fact, more than any other, that eventually led to the widespread use of torture to extract evidence, and especially to extract that "queen of proofs," a confession. In cases where the state of mind of the accused was at issue -- heresy cases were a prime example -- there was no one more qualified to testify concerning his state of mind than the accused himself, and no more effective way to secure his admission of a criminal state of mind than the use of physical force.

In civil cases not only the rigors of proof but also, and more especially, the complexities of taking evidence by written interrogatories, without participation of the judge, led inevitably to the widespread use of dilatory tactics by the lawyers. This, in turn, was counteracted by the establishment of a series of compulsory stages, with separate rulings by the judge at each stage. However, the system could not resist the pressure to allow appeals to be taken from the separate rulings, and then to require such appeals to be taken at the risk of waiver of the right to object to the rulings at a later stage. It is not surprising that some cases went on for years and even decades.

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These vices in the Romanist - canonical procedure were more characteristic of its use in the secular courts than in the ecclesiastical courts, where the judge's participation was more extensive and judicial discretion was given more

scope. They were also more characteristic of its later development than of its use in the twelfth and early thirteenth centuries. It is likely that the increased reliance on written proofs, on formal rules of measuring evidence, and on confessions in criminal cases all reflected a decline in respect for oaths, which itself, paradoxically, may have reflected the increased emphasis upon rationality in the law.