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Judicial tribunals in England and Europe, 1200–1700 i ii Judicial tribunals in England and Europe, 1200–1700 The trial in history, volume I edited by Maureen Mulholland and Brian Pullan with Anne Pullan Manchester University Press Manchester and New York distributed exclusively in the USA by Palgrave iii Copyright © Manchester University Press 2003 While copyright in the volume as a whole is vested in Manchester University Press, copyright in individual chapters belongs to their respective authors. This electronic version has been made freely available under a Creative Commons (CC-BY-NC- ND) licence, which permits non-commercial use, distribution and reproduction provided the author(s) and Manchester University Press are fully cited and no modifications or adaptations are made. Details of the licence can be viewed at https://creativecommons.org/licenses/by-nc-nd/3.0/ Published by Manchester University Press Oxford Road, Manchester M13 9NR, UK and Room 400, 175 Fifth Avenue, New York, NY 10010, USA www.manchesteruniversitypress.co.uk British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data applied for ISBN 0 7190 6342 6 hardback First published 2003 10 09 08 07 06 05 04 03 10 9 8 7 6 5 4 3 2 1 Typeset in Photina by Graphicraft Limited, Hong Kong Printed in Great Britain by Bookcraft (Bath) Ltd, Midsomer Norton iv Contents Tables vi Contributors vii Acknowledgements x Abbreviations xi Introduction Maureen Mulholland 1 1 What is a trial? Joseph Jaconelli 18 2 The role of amateur and professional judges in the royal courts of late medieval England Anthony Musson 37 3 Was the jury ever self informing? Daniel Klerman 58 4 Trials in manorial courts in late medieval England Maureen Mulholland 81 5 Judges and trials in the English ecclesiastical courts R. H. Helmholz 102 6 The attempted trial of Boniface VIII for heresy Jeffrey Denton 117 7 Reasonable doubt: defences advanced in early modern sodomy trials in Geneva William G. Naphy 129 8 Testifying to the self: nuns’ narratives in early modern Venice Mary Laven 147 9 The trial of Giorgio Moreto before the Inquisition in Venice, 1589 Brian Pullan 159 Index 183 v Tables 3.1 Jury verdicts by level of appellor participation, 1218–22 and 1246–94 63 3.2 Testimony in eyre plea rolls by topic and speaker, 1221–86 71 7.1 Specific Genevan trials mentioned 132 7.2 Genevan trials, an overview 134 vi Contributors Jeffrey Denton, formerly Professor of Medieval History in the University of Manchester, is now Honorary Research Fellow in the Department of His- tory of the University of Sheffield. Among his recent works are ‘Taxation and the conflict between Philip the Fair and Boniface VIII’, French History, 11 (1997), 241–64, and ‘Towards a new edition of the Taxatio Ecclesiastica Angliae et Walliae Auctoritate Nicholai IV circa 1291’, Bulletin of the John Rylands University Library of Manchester, 79 (1997), 67–79. He is the editor of Orders and Hierarchies in Late Medieval and Renaissance Europe (Basingstoke and London, 1999). He is working on a new edition of texts relating to the Anglo-Papal crisis of 1301–3, on a new electronic and hard-copy edition of the 1291 assessment of the value of English and Welsh ecclesiastical benefices, and on an edition of the episcopal acta of the bishops of Coventry and Lichfield in the thirteenth century. R. H. Helmholz is Ruth Wyatt Rosenson Distinguished Service Professor in the Law School of the University of Chicago. His recent books include Ro- man Canon Law in Reformation England (Cambridge, 1990); The Spirit of Clas- sical Canon Law (Athens, Georgia, 1996); and The ius commune in England: Four Studies (New York, 2001). He is now at work on a general history of the canon law and ecclesiastical jurisdiction in England for the series The History of English Laws, to be published by Oxford University Press. Joseph Jaconelli is Reader in Law at the University of Manchester. He has a long-standing interest in issues of publicity and secrecy in the conduct of trials, as reflected in his articles: ‘Some thoughts on jury secrecy’, Legal Studies, 10 (1990), 91–103, and ‘Rights theories and public trial’, Journal of Applied Philosophy, 14 (1997), 169–75. His monograph on the subject, Open Justice. A Critique of the Public Trial, was published in 2002 by Oxford University Press. He is also the author of Enacting a Bill of Rights: The Legal Problems (Oxford, 1980). vii Contributors Daniel Klerman is Professor of Law and History in the University of Southern California Law School. His publications include ‘Settlement and the decline of private prosecution in thirteenth-century England’, Law and History Re- view, 19 (2001), 1–65, and also ‘Non-promotion and judicial independ- ence’, Southern California Law Review, 72 (1999), 455–63. An article, ‘Statistical and economic methods in legal history’, is to be published in Illinois Law Review, and another, ‘Women prosecutors in thirteenth- century England’, is forthcoming in Yale Journal of Law and Humanities. He was awarded the 2001 David Yale Prize of the Selden Society for ‘distin- guished contribution to the history of the laws and legal institutions of England and Wales’. He is now working on a project which explores the effects of jurisdictional competition on the development of English law. Mary Laven is a University Lecturer at the University of Cambridge, and a Fellow of Jesus College. She is the author of Virgins of Venice: Enclosed Lives and Broken Vows in the Renaissance Convent (London, 2002) and of several articles on Venetian convents, including ‘Sex and celibacy in early modern Venice’, The Historical Journal, 44 (2001), 865–88. She is embarking on a new study of sociability in early modern Italy. Maureen Mulholland is Honorary Lecturer (formerly Lecturer) in Law at the University of Manchester. She is an editor of the seventeenth and eight- eenth editions and supplements of Clerk and Lindsell on Tort (London, re- spectively 1995 and 2000) and has contributed articles on English legal history to J. Cannon (ed.), The Oxford Companion to British History (Oxford, 1997). With M. Brazier, she has contributed a chapter on ‘Droit et Sida; le Royaume Uni’, to J. Foyer and L. Khaiat (eds), Droit et Sida, comparaison internationale (Paris, 1994), pp. 363–86, and another on ‘AIDS and the law’ to R. Bennet, C. Erin and J. Harris (eds), AIDS. Ethics, Justice and Euro- pean Policy (Luxembourg, 1998), pp. 97–157. Her article ‘The jury in Eng- lish manorial courts’ has recently appeared in J. W. Cairns and G. McLeod (eds), The Jury in the History of the Common Law (Oxford and Portland, Oregon, 2002), pp. 63–73. Anthony Musson is Senior Lecturer in Law at the University of Exeter. He is the author of Public Order and Law Enforcement: The Local Administration of Criminal Justice, 1294–1350 (Woodbridge, 1996); ‘Twelve good men and true? The character of early fourteenth-century juries’, Law and History Review, 15 (1997), 115–44; (with W. M. Ormrod) The Evolution of English Justice: Law, Politics and Society in the Fourteenth Century (Basingstoke, 1998); and Medieval Law in Context: The Growth of Legal Consciousness from Magna Carta to the Peasants’ Revolt (Manchester, 2001). He is now working on two books: English Law in the Middle Ages: A Social History, for the Medieval Worlds series of Hambledon and London; and Crime, Law and Society in the Later Middle Ages, for the Medieval Texts and Sources series of Manchester University Press. viii Contributors William G. Naphy is Senior Lecturer and Head of the Department of History in the School of History and History of Art at the University of Aberdeen. Among his recent publications are Fear in Early Modern Society, which he edited with P. Roberts (Manchester, 1997); Plagues, Poisons and Potions: Conspiring to Spread Plague in the Western Alps, c. 1530–1640 (Manchester, 2002); ‘Sodomy in early modern Geneva: various definitions, diverse ver- dicts’, in T. Betteridge (ed.), Sodomy and Sexual Deviance in Early Modern Europe (Manchester, 2002), pp. 94–111; and (ed. with H. Parish) Religion and Superstition in Reformation Europe (Manchester, 2002). He is now work- ing on a monograph concerning the criminalisation of sexual activity in early modern Geneva. Brian Pullan is Emeritus Professor of Modern History in the University of Man- chester. His books include Rich and Poor in Renaissance Venice: The Social Institutions of a Catholic State, to 1620 (Oxford, 1971); The Jews of Europe and the Inquisition of Venice, 1550–1670 (Oxford, 1983, reprint, London, 1997); and Poverty and Charity: Europe, Italy, Venice 1400–1700 (Alder- shot, 1994). He is one of the editors (with D. S. Chambers and J. Fletcher) of Venice: A Documentary History 1450–1630 (Oxford, 1992). He is now work- ing, with the assistance of M. Abendstern, on the recent history of the Uni- versity of Manchester. One volume, A History of the University of Manchester 1951–73 (Manchester, 2000), has appeared, and a second volume is in progress. ix Acknowledgements Earlier versions of some of the chapters in this volume were delivered at a conference on ‘The Trial in History’ held in Manchester on 17–19 September 1999. This conference was organised by the Department of History of the University of Manchester in association with the Faculty (now the School) of Law, and with the advice and help of members of the Wellcome Unit for the History of Medicine and of the Departments of Philosophy and of Social An- thropology. Further financial contributions in support of the conference were made by the British Academy Humanities Research Board, the University of Manchester, Messrs Eversheds, Solicitors of Manchester, and the J.