Historians today discuss the rules and regulations followed by medieval church courts by focusing on the development of so-called “Romano-canonical” procedure during the formative period of Roman and canon law from the time of Gratian (around 1140) to the completion, in the 1270s, of the most successful handbook on the subject, the Speculum iudiciale of William Durand. The guidelines laid down in the Speculum summarize more than a century of systematic effort at the schools of Bologna and elsewhere to strike a balance between, on the one hand, the obligation of judges to investigate the facts of a case unilaterally and, on the other, the right of defendants and adversaries to a fair trial. The specifics worked out by contemporaries have fascinated modern observers, not least for their innovative features. In twelfth- and thirteenth-century jurisprudence, demands of due process, the double jeopardy clause, presumption of innocence, and other fundamental standards of justice in the West found their first coherent expression. Simultaneously, though, research has operated under the erroneous assumption that manuals like the Speculum iudiciale were meant to cover the whole range of mechanisms shaping ecclesiastical adjudication.

Over the course of the “long twelfth century,” the law of the western Church was transformed in ways which made it look very different from what it had been before. To denote the most fundamental aspect of that change, historians have used the word “systematization,” which accurately describes key developments in the intellectual life of the period. However, events that culminated in the appearance of the Concordia discordantium canonum (around 1140) and secured its author, Gratian, distinction as “the father of the systematic study of canon law,” can also be understood in terms of “reinvention,” which appropriately points to a qualitative break away from older legal practices. To speak of canon law as having been “reinvented” acknowledges that some form of it had been in place earlier on. “Systematization,” on the other hand, figures in the modern western mind as an expression that lacks distinctiveness in connection with legal matters. Audiences today are surrounded by a juristic culture that grew out of Gratian’s pioneering effort, and his approach to individual norms as elements of a logically coherent system is now considered to be the only plausible one.

Consent is the issue at the heart of Chapter 3. Peine forte et dure was necessary simply because the English court system required a defendant’s consent before he might be submitted to trial by jury. Without his consent, justices could not proceed to trial. This chapter asks why did English justices see consent as vital, especially when other Europeans did not? It explains that consent was a traditional part of English legal culture, signaled by a defendant’s choice of proofs (compurgation, ordeals, battle). In choosing a method of proof, an accused felon recognized the court’s authority in the matter, and consented to abide by its decision. With the transition from proofs to trial (by jury) that began under Henry II and coalesced with Lateran IV’s abandonment of the ordeal, a defendant’s rights were whittled away. These changes took place against the backdrop of the twelfth-century legal revolution that championed a defendant’s natural rights to legal protection. Thus, while the English may have protested the loss of choice through silence, justices needed a solution that respected both English heritage and a defendant’s rights. That solution was peine forte et dure.