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Published online by Cambridge University Press: 15 May 2020
In the twelfth century, the English church courts made considerable use of compurgation and of sworn members of the community to aid in the resolution of disputes, but by the end of the thirteenth century, academic canon law depended almost entirely on witness testimony. Romano-canonical proceduralists established rules for examining witnesses, rejecting testimonies and resolving conflicts. However, these academic ideals were not always possible or even desirable in practice. Although Roman procedure required witnesses to be eyewitnesses, English ecclesiastical practice allowed witnesses to testify to public knowledge. Furthermore, individuals who were not qualified to testify did so regardless, and their testimonies were not excluded even following exceptions. This is not to say that standard procedure was not followed; more often than not, it was. However, these differences between theory and practice indicate that practitioners (and perhaps judges) in the English ecclesiastical courts were experimenting with ways to use witness testimony beyond the confines of the academic law.
I am grateful to William Eves, John Hudson and Attilio Stella for their helpful comments on drafts of this article. Any errors or omissions are my own.
1 Donahue, Charles Jr, ‘Proof by Witnesses in the Church Courts of Medieval England: An Imperfect Reception of the Learned Law’, in Arnold, Morris S. et al. , eds, On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne (Chapel Hill, NC, 1981), 127–58Google Scholar, at 129. For further discussion of the ordeal in canon law, see also Bartlett, Robert, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford, 1986)Google Scholar; McAuley, Finbarr, ‘Canon Law and the End of the Ordeal’, Oxford Journal of Legal Studies 26 (2006), 473–513CrossRefGoogle Scholar.
2 Tancred, Ordo, in F. Bergmann, ed., Pillii, Tancredo, Gratiae, Libri de Iudiciorum Ordine (Göttingen, 1842); Guillaume Durand, Speculum Iuris. Cum Ioan. Andreae, Baldi, reliquorum que clarisimorum … doctorum visionibus hactenus addi solitis, 2 vols (Lyons, 1578).
3 Donahue, ‘Proof by Witnesses’, 133.
4 For more on each of these forms of proof, see Richard H. Helmholz, OHLE, 1: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford, 2004), 327–41 (‘The Stage for Proof’), 604–26 (‘Criminal Procedure’).
5 All the cases mentioned are available in Norma Adams and Charles Donahue Jr, eds, Select Cases from the Ecclesiastical Courts of the Province of Canterbury, c.1200–1301, SelS 95 (London, 1981), referenced below by case number (then case name where given), page range and specific page number. The sample set of cases from Canterbury, being mainly appeals, is not representative of the full range of cases in the period, and the absence of straightforward cases in the record does not mean they did not occur. That being said, appeals were rarely made in clear-cut cases, and the difficult or contentious issues which reached the metropolitan court are those in which procedure may have been tested more rigorously. It is also possible that this collection of cases was selected by the prior and chapter of Canterbury to demonstrate their exercise of vacancy jurisdiction, which had been previously challenged: see ibid., Introduction, 1–119, at 35–7.
6 Ex officio procedure was very similar to secular presentment procedure, to the extent that Richard Helmholz has suggested ‘concrete connections between secular and canon law in the sphere of criminal procedure’, due to parallels in the three procedural stages of both systems: public fame, use of inquests and purgation. However, there is one significant difference between the two: canonical inquests required the questioning of individuals, which differs from the practice of the self-informing secular jury: Helmholz, Richard H., ‘The Early History of the Grand Jury and the Canon Law’, University of Chicago Law Review 50 (1983), 613–27CrossRefGoogle Scholar, at 616, 623, 625.
7 See Adams and Donahue, eds, Select Cases, A2, Master Peter de Wilton c. Master Stephen the Scribe (c.1200), 3–7, at 4; A3, Master Martin, rector of Barkway c. parishioners of Nuthampstead (c.1199), 8–10, at 8–9; A4, William de Wrotham c. Savaric, bishop of Bath (1203x1205), 11–14, at 14; D11, Nicholas Lewyn, rector of Frankton c. Master Adam de Botingdon (1288–93), 495–503, at 500–3; D16, Master Thomas de Sutton and Oliver de Sutton, bishop of Lincoln c. Master Edward de St John (1293–4), 567–611, at 575, 585; D19, Roger de Arderne c. executors of Thomas the Linen-draper (1291–1301), 633–89, at 650.
8 Donahue, ‘Proof by Witnesses’, 130. In Adams and Donahue, eds, Select Cases, D14, Official of Lincoln c. John de Arden (1291–2), 535–48, there are forty.
9 Tancred, Ordo 3.6, ‘De testibus’; Donahue, ‘Proof by Witnesses’, 131. See also Charles Donahue Jr, ‘Procedure in the Courts of the Ius commune’, in Wilfried Hartmann and Kenneth Pennington, eds, The History of Courts and Procedure in Medieval Canon Law (Washington DC, 2016), 74–124, at 83–94.
10 Tancred, Ordo 3.11, ‘De testium reprobatione’; see also Pseudo-Ulpian, De edendo, in Bruce Brasington, Order in the Court: Medieval Procedural Treatises in Translation (Leiden, 2016), 131–71, at 153–5; and the Ordo Bambergensis, ibid. 203–75, at 238–49. These exceptions also appear in Glanvill, indicating that these same restrictions may have been placed on jurors in the secular courts: The Treatise on the Laws and Customs of the Realm of England commonly called Glanvill, ed. G. D. G. Hall and M. T. Clanchy, OMT (Oxford, 1993), 32.
11 Donahue, ‘Proof by Witnesses’, 144.
12 Ibid. 146.
13 The most common questions regarded the witness's status, relationship to the parties and possible prejudice or corruption, along with the necessary questions about the case: see Adams and Donahue, eds, Select Cases, C11, Ascelina, prioress of Higham c. Amfelicia, subprioress and the nuns of Higham ‘adhering to her’ (1270), 161–77, at 163; C12, Philip, rector of Guestling c. the abbot and convent of Battle (1270–1), 177–96, at 192–3; C14, The prior and monks of Stogursey c. John de Winton, rector of Over Stowey (1271–2), 207–25, at 211; C18, Master Robert de Pitchford c. Thomas de Neville (1267–72), 265–336, at 270, 291; D11, Lewyn c. Botingdon, 498; D17, Robert Dyne c. Henry Dyne (1293–4), 612–26, at 617, 626. These questions were highly specific and would often concern the weather, how the witness knew about the events, and the time of day at which something took place. When recording the depositions, the standard practice in the Canterbury cases was to record the first testimony in full, and details in the rest only when they differed from the first. Durand objected to this practice, emphasizing that all depositions were to be recorded in full: Durand, Speculum 1.4.[2], ‘de teste’, §7.8. Donahue observes that the abbreviated system of recording depositions was approved in the statutes of the Court of Canterbury in 1342: ‘Introduction’, to Adams and Donahue, eds, Select Cases, 50.
14 Adams and Donahue, eds, Select Cases, C18, Pitchford c. Neville, 308 (paraphrased translation is mine).
15 Ibid. 327.
16 Helmholz has noted that proof by notoriety, which certainly played a significant role in ex officio proceedings, played a ‘distinctly minor’ role in instance cases. Although witnesses often stated that something was very well known, this was rarely relied on as full proof: Helmholz, OHLE 1, 328.
However, 40 per cent of the depositions found in the sample set from Select Cases contain a combination of eyewitness account, testimony on the basis of fama and reports of hearsay. Adams and Donahue, eds, Select Cases, C18, Pitchford c. Neville, is a good example of this, as is D16, Sutton and Sutton c. St John, a dispute over the prebend of Thame. For further work on this latter case, see Felicity G. Hill, Excommunication in Thirteenth-Century England: Community, Politics and Publicity (forthcoming).
17 For an example, see Adams and Donahue, eds, Select Cases, C18, Pitchford c. Neville, 270–1. These categories can be found in a mnemonic in the gloss on Liber extra X.2.20.37: Corpus juris canonici emendatum et notis illustratum, 4 vols (Rome, 1582), 2: 736, Additio: ‘Auditus, visus, persona, scienta, causa, / fama, locus, tempus, ac certam, credulitasque, / Dum testes recipit, judex haec cuncta notabit.’ Canon and civil law references are given according to the ‘modern form’ provided by James Brundage in Medieval Canon Law (London, 1995), 190–205 (Appendix 1).
18 Adams and Donahue, eds, Select Cases, C18, Pitchford c. Neville, 268.
19 Ibid. 283–4.
20 Ibid. 279.
21 See also Adams and Donahue, eds, Select Cases, D5, Oliver de Brocton c. Adam Mulgars (1292–3), 387–98, at 395; D7, John St John, prior of Andover c. Executors of Edmund Paty (1293–4), 410–28, at 418; Ardern c. Executors, 670; ibid., ‘Introduction’, 51–2; Elham c. Alice, in Donahue, Charles Jr, ‘Roman Canon Law in the Medieval English Church: Stubbs vs. Maitland re-examined after 75 Years in the Light of some Records from the Church Courts’, Michigan Law Review 72 (1974), 647–716CrossRefGoogle Scholar; for further discussion, see Sarah B. White, Procedure and Legal Argument in the Thirteenth-Century English Ecclesiastical Courts (forthcoming).
22 MacNair, Mike, ‘Vicinage and the Antecedents of the Jury’, LHR 17 (1999), 537–90CrossRefGoogle Scholar, at 538.
23 Donahue, ‘Proof by Witnesses’, 148.
24 MacNair, ‘Vicinage’, 548.
25 The preference for witnesses in Romano-canonical procedure has often been contrasted with the secular juries to suggest fundamental differences between the two systems: see primarily Frederick Pollock and Maitland, F. W., The History of English Law before the Time of Edward I, 2 vols (Cambridge, 1898), 2: 603–4Google Scholar and n. 1. For a discussion of whether or not secular juries were truly self-informing, see Klerman, Daniel, ‘Was the Jury ever Self-Informing?’, Southern California Law Review 77 (2003), 123–50Google Scholar.
26 The use of fama and issues of due process in criminal proceedings have been discussed at length by Fraher, Richard M., ‘Conviction according to Conscience: The Medieval Jurists’ Debate concerning Judicial Discretion and the Law of Proof’, LHR 23 (1989), 23–88CrossRefGoogle Scholar.
27 Ibid. 36 n. 89.
28 ‘Et ita patet, quod qualitercumque aliquid sit diuulgatum per famam, seu quasi notorium, non sufficit ad probationem … sed cum aliis adminiculis sufficit … sola fama sufficit ad matrimonium impediendum’: Liber extra X.2.24.32 (Corpus iuris canonici, 2: 829), in the gloss on ex fama.
29 Fraher, ‘Conviction’, 36.
30 Adams and Donahue, eds, Select Cases, C6, William Smith c. Alice Dolling (1271–2), 127–37, at 136.
31 Ibid., C14, The prior and monks of Stogursey c. John de Winton, 221–2.
32 Justinian, Digest D.22.3.2 (Corpus Iuris Civilis [hereafter: CICiv], 1: Institutiones, Digesta, ed. Theodore Mommsen and Paul Krüger [Berlin, 1872], 289).
33 Adams and Donahue, eds, Select Cases, C18, Pitchford c. Neville, 327.
34 ‘Ratione cohabitationis, distantiae vel vicinitatis, ut supra de poen. di. I. sed et continuo, qui dixerat et cet.’: Ricardus Anglicus, Summa de ordine iudiciario, in Ludwig Wahrmund, ed., Quellen zur Geschichte des Römisch-kanonischen Prozesses im Mittelalter, 5 vols (Innsbruck, 1905–31; repr. Aalen, 1962), 2/3: 1–114, at 62; ‘Ex communi et vulgari opinione, ut ff. ad Macedonianum, 1. si quis patrem’: ibid. 6; ‘Verum, quia in huiusmodi dubietate fama vicinia magis debet attendi … si fama loci habet, quod vir ipsam in lecto et in mensa sicut uxorem tenuerit, quum matrimonium sit maris et feminae coniunctio’: Liber extra X.2.23.11 (CICan, 2: 355). See also MacNair, ‘Vicinage’, 577.
35 See Robert Wenge and Roger Woodstock, in Adams and Donahue, eds, Select Cases, C18, Pitchford c. Neville, 283–7, 329–30.
36 Ibid. 268.
37 Ibid. 269.
38 Ibid. 278.
39 Fraher, ‘Conviction’, 34 n. 74. For a general discussion of fama in medieval Europe, see Thelma Fenster and Daniel Lord Smail, eds, Fama: The Politics of Talk and Reputation in Medieval Europe (Ithaca, NY, 2003).
40 Fraher, ‘Conviction’, 34.
41 ‘[S]ed cum omnium haec est opinio nec audisse nec vidisse, cum id opus fieret, neque ex eis audisse, qui vidissent aut audissent: et hoc infinite similiter susum versum accidet, cum memoria operis facti non exstaret’: Justinian, Digest D.22.3.28 (CICiv, 1: 291); ‘an memoria exstet facto opere, non diem et consulem ad liquidum exquirendum, sed sufficere, si quis sciat factum esse, hoc est, si factum esse non ambigatur: nec utique necesse esse superesse qui meminerint, verum etiam si qui audierint eos, qui memoria tenuerint’: ibid., D.39.3.2.8 (CICiv, 1: 602).
42 Richard was here citing the Decretum. See Gratian, Decretum C.35 q.6 c.5 (CICan, 1: 1278–9): ‘quicquid inde scis aut audisti a tuis vicinis, a a tuis propinquis antiquioribus, tu per nullum ingenium’; ibid., C.35 q.6 c.8 (CICan, 1: 1279–80): ‘sed potius, quia credant ita verum esse, et ita se a suis antecessoribus audivisse’.
43 ‘Ponit concilium duodecim, sine quibus ad probandum consanguinitatem in causa matrimoniali, non valet testimonium de auditu’: Liber extra X.2.20.47 (CICan, 2: 337); also found in Tancred, Ordo 3.9, ‘De iuramento testium’, §1.
44 ‘Testimonium autem de relatione non valet … quod testimonium de auditu non valet excepta causa matrimonii secundum iura antiqua, sed illum revocatum est per Lateranense concilium. Diceret quidam, quod valet testimonium de auditu, ut si de opere antiquo quaeretur … Sed si diligenter inspiciantur duae praedictae leges, reperietur, quod ibi non requiritur testomonium de auditu, sed de facti visu’: Wahrmund, ed., Quellen, 2/1: 51.
45 ‘Ultimo quaerit qualiter fiet probatio communic opinionis, vel etiam praescriptionis tanti temporis, cuius memoria non existit? Etc.’: Durand, Speculum 2.2, ‘De probationibus’ 1.20; MacNair, ‘Vicinage’, 573–4 nn. 147–51.
46 Brasington, Order in the Court, 242 n. 345.
47 ‘Sed notandum quia ex auditu factum testimonium dupliciter dicitur: aut quia ita esse aurium experientia didicimus et cognovimus, aut quia aliorum relatu ita fuisse didicimus. Primum improprie dicitur testimonium de auditu, proprie vero de visu de eo, quod, cum fiebat, videndo audiendo plene percipiebat … Sed proprie dicitur testimonium de auditu, nec est acceptabile, nisi in praedictis casibus et his maxime, quorum origo temporum nostrorum memoriam excedit’: Der Ordo Iudiciarius de Codex Bambergensis, ed. Johann Friedrich von Schulte (Vienna, 1872), 309.
48 Indeed, of the forty-two cases from Adams and Donahue, eds, Select Cases, for which we have depositions, twelve of them record only a single eyewitness or none at all, and that number of cases increases once the exceptions concerning witnesses have been considered: cases A8, A10, C12, C16, C17, D5, D7, D8, D11, D17, D19.
49 MacNair, ‘Vicinage’, 576–8; Donahue, ‘Proof by Witnesses’, 140, 150–1.
50 MacNair, ‘Vicinage’, 589.