This is a book which has long been needed. It meets that need admirably. Kenneth Pennington provides an introduction setting out a number of key points to which authors of later chapters refer back and cross‐refer, keeping the set of essays well organised and clear. He explains the difference between the three types of process, the Roman law‐derived modus accusationis in which the accuser calls the accused into court; the modus inquisitionis which developed in the late twelfth century and was formally established by the Fourth Lateran Council; and the ‘summary’ procedure making rapid determination possible. The inquisitorial procedure came into fashion with the discovery of the convenience of relying on the sheer ‘notoriety’ of the accused, and Pennington deals further with some of the problems this caused in a later chapter.
In Part I a series of authors discusses a parade of topics in their practical and theoretical aspects, beginning with the permitted location of courts (‘from church portal to town hall’), including open air hearings and the firm establishment of the principle that the court is anywhere the judge sits. Then comes the question what constituted a ‘practitioner’ and the ways in which a professional lawyer might practise, including his pragmatic need to be able to judge the chances of a case's success. A chapter is given to the broad norms of procedure of the ius commune in its extension across Europe. Next is a chapter on the theory of all this as it began to develop in the ‘jurisprudence of procedure’. The last two chapters of Part I cover the Roman Curia to the end of the thirteenth century and the roles of Judges Delegate.
Throughout the chapters points of procedural importance arise and are clarified, for example the rules of evidence and the procedure for questioning witnesses (relying substantially on Tancred); the invalidity of confessions extracted under torture, indeed all the gamesmanship of the litis contestatio.
The introduction warns that the archival records are patchy and vary a good deal with reference to different parts of Europe. This is particularly evident in Part II, where ‘The structure and practice of the courts in several lands’ is considered, including Eastern Europe with its interface with another world of thought in Byzantium. There too the modern scholar faces the problem of the destruction of Christian legal records during the period of Ottoman rule.
Part II begins with Charles Donahue's introduction to the ecclesiastical courts, and moves on the ‘France and adjoining areas’; local ecclesiastical courts in England; ecclesiastical procedure in Medieval Spain, before coming to Eastern Central Europe. There is a general survey of the broad types of case which came before these courts, with their emphasis on disputes over tithes and ecclesiastical property and the legions of problems which could arise in connection with marriages.
An overall editorial hand has ensured that explanations are clear and sources given fully with the necessary textual quotations. An extensive bibliography and generous index will add to the value of this collection as a standard work of reference.
