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The University of Chicago Admissibility in Roman-Canon Procedure: the Emergence of the Law of Positions a Dissertation Submitted

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The University of Chicago Admissibility in Roman-Canon Procedure: the Emergence of the Law of Positions a Dissertation Submitted THE UNIVERSITY OF CHICAGO ADMISSIBILITY IN ROMAN-CANON PROCEDURE: THE EMERGENCE OF THE LAW OF POSITIONS A DISSERTATION SUBMITTED TO THE FACULTY OF THE DIVISION OF THE HUMANITIES DEPARTMENT OF CLASSICS AND THE FACULTY OF THE DIVISION OF THE SOCIAL SCIENCES DEPARTMENT OF HISTORY IN CANDIDACY FOR THE DEGREE OF DOCTOR OF PHILOSOPHY BY WILLIAM PEYTON SULLIVAN CHICAGO, ILLINOIS JUNE 2020 Copyright 2019 William P. Sullivan TABLE OF CONTENTS ACKNOWLEDGMENTS v INTRODUCTION 1 1. The Purpose of This Dissertation 1 2. Sources 13 3. Map of the Dissertation 20 CHAPTER 1. INSUFFICIENCY OF PROOF: THE MEANS OF PROOF IN TWELFTH-CENTURY PROCEDURAL THEORY 23 1. Introduction 23 2. Procedure in the Mid-Twelfth Century: The Letter of Bulgarus 24 3. The Problem of Proof Insufficiency 33 4. Other Means of Proof 41 5. Confessions 47 6. Conclusion 64 CHAPTER 2. THE PARTY AS A SOURCE OF PROOF IN TWELFTH-CENTURY PRACTICE 65 1. Introduction 65 2. The Party as a Source of Proof: The Adjudicator-Controlled Approach 66 3. The Party as a Source of Proof: The Opponent-Controlled Approach 83 4. Initial Dissemination of the Opponent-Controlled Approach 107 5. Conclusion 134 CHAPTER 3. THE EMERGENCE OF THE LAW OF POSITIONS 136 1. Introduction 136 iii 2. The New Doctrine of Positions 137 3. The Rise of Norms of Admissibility 148 4. Explaining the Doctrine 171 5. Conclusion 202 CHAPTER 4. ADMISSIBILITY IN THE LAW OF WITNESSES 203 1. Introduction 203 2. The Law of Witnesses in the Twelfth-Century ordines: Qualification and Sufficiency 204 3. Explanations for the Doctrine: Text, Culture, and Function 221 4. Party Control of Examination and the Emergence of Rules of Admissibility 240 5. Conclusion 258 APPENDIX. NOTES ON THE THIRTEENTH-CENTURY TRACTATUS DE POSITIONIBUS 263 BIBLIOGRAPHY 287 iv ACKNOWLEDGMENTS I am grateful to the members of my dissertation committee in the Department of Classics and the Department of History of the University of Chicago: Professors Clifford Ando and Constantin Fasolt, who have served as co-chairmen; and Professors Michael Allen and Richard Helmholz, who have served as readers. I am also grateful to three institutions outside Chicago for hosting me during my research. The École française de Rome, thanks to its director Catherine Virlouvet and member Pierre Thévenin, helped me begin serious work on the dissertation during a three- month stay in late winter and spring 2016. Yale Law School kindly provided facilities for me to continue working in New Haven after I graduated from law school. At Yale, the entire staff of the Lillian Goldman Law Library, but above all Julian Aiken, Alison Burke, and Michael Widener, sped my work by ensuring my continued library access, by obtaining copies of obscure texts with astonishing efficiency, and by introducing me to the treasures of the law library’s rare book collection. Finally, Harvard Law School provided ideal working conditions in academic year 2018–19 through the Raoul Berger–Mark DeWolfe Howe Legal History Fellowship. Among the members of the Harvard law faculty, Professors Elizabeth Kamali, Adriaan Lanni, and above all Charles Donahue, Jr. were unfailingly generous with time and advice; in the Office of Academic Affairs, Lisa Langone helped guide me through the labyrinthine Harvard bureaucracy. Outside these host institutions, a number of scholars, librarians, and archivists elsewhere offered their help. Among them Professor Emanuele Conte of the Università degli studi Roma Tre holds the place of honor, for his practical advice at the outset of my research, for his extensive comments on two dissertation chapters, and for his invitation to present v some of my research at a December 2018 seminar in Rome. I received helpful comments at that seminar from Professors Gero Dolezalek, most recently of the University of Aberdeen; Antonia Fiori, Università degli studi di Roma “La Sapienza”; Sara Menzinger di Preussenthal, Università degli studi Roma Tre; Beatrice Pasciuta, Università degli studi di Palermo; and Massimo Vallerani, Università degli studi di Torino, as well as Dr. Saverio Toffoli, retired counselor of the Corte suprema di cassazione. For help obtaining sources I am also grateful to Professor Christian Burset, Notre Dame Law School; Dr. Rémy Cordonnier, Bibliothèque d’agglomération du pays de Saint-Omer; Anna Delogu, Biblioteca di filosofia e storia, Università di Pisa; Cécile Girard, Médiathèque Simone Veil de Valenciennes; Dr. Janet Gunning, Durham Cathedral Library; Agnieszka Rafalska; Stefania Sychta, Biblioteka Gdańska Polskiej Akademii Nauk; Dr. Peter Tropper, Archiv der Diözese Gurk; and staff at the Archivio di Stato di Piacenza, Archivio di Stato di Pisa, Archivio storico diocesano di Lucca, Archivio storico diocesano di Pisa, Biblioteca apostolica vaticana, and Bibliothèque nationale de France. Finally, I am grateful to several friends who kindly tolerated me doing research or writing in their homes: in Portland, Oregon, Dr. Cassandra Betts; in Pontgibaud (Puy-de- Dôme), the Comte and Comtesse Gabriel Le Bègue de Germiny; in Guilford, Connecticut, Christopher Jones and Katherine Wiltshire; and in Keystone, Colorado, Dr. Konrad Weeda. vi INTRODUCTION 1. THE PURPOSE OF THIS DISSERTATION 1.1 The Subject This dissertation is a historical case study of the circumstances in which norms of evidentiary admissibility have arisen and of the form that those norms have taken within an adversarial,1 but nonjury procedure. The principal case under examination is the development of the law of positions in twelfth- and thirteenth-century Roman-canon adversarial procedure; I also turn in the last chapter for comparison to the Roman-canon law of witnesses. The principal theme of this dissertation is that principles of evidentiary admissibility first emerged to mitigate the problems caused by shifting a measure of control over examination of parties and witnesses from the adjudicator to the parties themselves, in particular the problems of parties’ abusive examination of their opponents and parties’ tendency to produce evidence that did not serve the fact finder’s informational needs. Roman-canon procedure refers to a family of procedures2 that emerged from the revival of Roman law jurisprudence in late eleventh- and twelfth-century central and northern 1 By “adversarial” I mean a mode of procedure in which two parties engage in a structured contest before a neutral adjudicator and in which those parties have a high degree of control over procedural action. See Mirjan R. Damaška, The Faces of Justice and State Authority: A Comparative Approach to the Judicial Process (New Haven, Conn.: Yale Univ. Press, 1986), 3 (“The adversarial mode of proceeding takes its shape from a contest or a dispute: it unfolds as an engagement of two adversaries before a relatively passive decision maker whose principal duty is to reach a verdict. The nonadversarial mode is structured as an official inquiry. Under the first system, the two adversaries take charge of most procedural action; under the second, officials perform most activities.”). 2 The best description of the procedures in English is John H. Baker, ed., The Oxford History of the Laws of England, vol. 1, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s, by Richard H. Helmholz (Oxford: Oxford Univ. Press, 2004), 317–53, 604–26; see also the account in James A. Brundage, Medieval Canon Law (London: Longman, 1995), 120–53. The doctrine of twelfth- and thirteenth-century Roman-canon civil procedure is 1 Italy and southern France. These procedures were rapidly adopted by secular courts in Italy and southern France and ecclesiastical courts initially in the same area and ultimately throughout the Latin West.3 The words “Roman” and “canon” allude to the two main stocks of normative sources on which the learned lawyers drew to construct the new procedures. One stock was Roman law, represented by the Corpus iuris, a body of sixth-century compilations of Roman juristic writing and imperial legislation. The other was the canon law of the Roman Catholic Church, represented by the Decretum, a twelfth-century compendium of earlier ecclesiastical norms, and by normative pronouncements of the medieval popes.4 treated comprehensively in Wiesław Litewski, Der römisch-kanonische Zivilprozeß nach den älteren ordines iudiciarii, trans. Leon Głowacki, 2 vols. (Kraków: Wydawnictwo Uniwerstytetu Jagiellońskiego, 1999); the doctrine of the entire period from the twelfth through the beginning of the sixteenth century is covered in Knut Wolfgang Nörr, Romanisch-kanonisches Prozessrecht: Erkenntnisverfahren erster Instanz in civilibus (Berlin: Springer, 2012). For a historical overview of Roman-canon civil procedure in English, see R. C. van Caenegem, History of European Civil Procedure, International Encyclopedia of Comparative Law, ed. Konrad Zweigert, vol. 16, Civil Procedure, ed. Mauro Cappelletti, ch. 2 (Tübingen: J. C. B. Mohr (Paul Siebeck), 1973), 11–23, 32–53. See also Hans Jörg Budischin, Der gelehrte Zivilprozeß in der Praxis geistlicher Gerichte des 13. und 14. Jahrhunderts im deutschen Raum (Bonn: Röhrscheid, 1974) (German ecclesiastical practice); Paul Fournier, Les officialités au Moyen Âge: Étude sur l’organisation, la compétence et la procédure des tribunaux ecclésiastiques ordinaires en France, de 1180 à 1328 (Paris, 1880), 128–281 (France only); Giuseppe Salvioli, Storia del diritto italiano, 9th ed. (Turin: Unione tipografico-editrice, 1930), 787–50, 767–82 (Italy only, beginning in the thirteenth century); Giuseppe Salvioli, Storia della procedura civile e criminale, vol. 3, pts. 1–2 of Storia del diritto italiano, ed. Pasquale Del Giudice (Milan: Hoepli, 1925–27) (Italy only). 3 Two short accounts in English of this revival, which partly overlapped the formative period of the common law in England, are Stephan Kuttner, “The Revival of Jurisprudence,” in Renaissance and Renewal in the Twelfth Century, ed. Robert L. Benson and Giles Constable (Cambridge, Mass.: Harvard Univ. Press, 1982), 299–323; Franz Wieacker, A History of Private Law in Europe: With Particular Reference to Germany, trans. Tony Weir (Oxford: Clarendon Press, 1995), 28–54.
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