This chapter examines the kinds of legal procedure adopted by various ancient legal systems to conduct legal proceedings in a court. The areas covered include the constitution of courts, preliminary court proceedings, valid evidence, presentation and evaluation of evidence, and the final verdict, including the possibility of appeals. Discussions include judges and court personnel, the physical space of courts, distinctions between civil and criminal cases, plaint and plea, sureties, and legal representation. Under evidence there is examination of witnesses, documents, oaths, ordeals, torture for evidentiary purposes, and forensic investigation, and punishment for perjury. Once a verdict is reached by the court, there are issues relating to the recording and the enforcement of the verdict. There is wide diversity in the legal procedure recorded in the sources from different legal traditions. Some deal with the topic explicitly, while in others we have to deduce the procedure from material on court cases.

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.