accuser.1 But it was difficult to establish notoriety, and no person had an official right to prosecute. The latter defect was remedied by papal legislation of the late twelfth and early thirteenth centuries. The judge was allowed, on proof of ill fame, to prosecute officially the suspected person; and he could proceed per inquisitionem. The person thus prosecuted could be compelled to answer on oath the questions of the judge; and this "inquisition" was from that time onwards a central feature of the canonical procedure, and of the criminal procedure developed from it. Once this procedure had been established it made rapid way. The injured person naturally preferred it, both because it was very much more effective, and because the bringing of an unsuccessful charge did not, according to the canon law, involve the prosecutor in the penalties which would have been inflicted on the accused if the charge had been proved.5 Technically he was not the accuser: he merely denounced the accused to the judge and so set in motion the inquisitorial procedure. The spread of this method of prosecution soon gave rise to another development-the rise of officials specially charged with the duty of denouncing offences to the judge, and of thus setting in motion the inquisitorial procedure; and its efficacy was increased by the fact that in the thirteenth century torture was allowed to extort evidence. At first a considerable liberty of defence was allowed. But this liberty was gradually restricted, more especially in cases of heresy; and these restrictions were not only imitated



2 Ibid 80.

1 Esmein, op. cit. 79-80. Ibid-"It was introduced by the decretals of Pope Innocent III. The first to come under notice is of date 1198. Then a series is found in rapid succession, in 1199, 1206, 1212. At last, in 1215, the fourth Lateran Council solemnly confirms the principle."

Ibid 82; to get round the rule that no one was bound to incriminate himself, it was said that, though under the compurgation system the infamatus must have not only his own oath but also that of the compurgators to clear him, under the inquisition system only his own oath was required; as Esmein says, this was a sophism; the compurgation and the compulsion to answer dextrous interrogatories were very different things; for the history of the rule against self-incrimination see below 182, 193-194, 333; Pt. II. c. 7 § I.

• Ibid 87-88.

* Ibid 86-87. 7 Ibid 91-92-" The Canon law had permitted it by virtue of the predominating influence of the Roman law. No trace of it is to be found in the procedure of the ecclesiastical courts of the Frankish monarchy, and the Decretum of Gratian... repudiates torture. . . the instrumentality by which the influence of the Roman law in this direction was augmented and sanctioned is to be found in certain passages borrowed from the ancient ecclesiastical Fathers who lived in the days of the Roman Empire, and who spoke of the torture which they saw in practice every day in a civilized country as if it were a normal and natural thing. . . . The great doctors of the thirteenth century, including Innocent IV. and Durantis, entertained no doubts as to the legality of this method of examination."

Ibid 90-91-thus the accused got the depositions of the witnesses against him; he could produce objections to their admissibility, and could reply to their testimony; he could freely plead any defence he had, and prove it by witnesses; he could have the help of counsel.

Ibid 92-93.

but even made more severe when the procedure per inquisitionem was adopted by the state, and made the regular procedure in criminal cases.



In the secular law this procedure per inquisitionem could at first only be used if the accused consented.1 This was a similar rule to that which required the consent of the accused to a trial by petty jury; and, as in our law, the consent was often compelled by duress. But there was one exception to the rule which required the consent of the accused. The procedure could be used without the consent of the accused if he was caught red handed; and it came to be thought that, if the guilt of the accused was so obvious that many witnesses were prepared to swear to it, it could also be applied, because the notoriety was equivalent to capture in the act. The judge, being thus "apprised" of the facts, could proceed by inquest-hence the name for this form of prosecution was the "aprise.' This development was helped by the existence of the king's right to find out facts which affected his rights by inquest." The repression of crime had come, by the thirteenth century, to be regarded as a matter in which the king was chiefly interested. Therefore it was thought that he might apply this inquest procedure to all cases; and it was not long before the two forms of procedure-the "aprise" and the inquest-became merged. The inquest thus developed into a body of witnesses who, in accordance with the ideas of the canon law, could be questioned secretly and apart, and not, as in England, into a body of jurors. And, in accordance with these same ideas, the accused could be questioned on oath. The other developments which had occurred in the canon law soon made their appearance. The private accuser could make use of it by denouncing the accused to the judge; 10 and soon a set of public prosecutors arose in the procurators of the king and the great nobles.11

It was not long before the canonical methods of taking evidence made their appearance. The witnesses were summoned by the court, and were questioned by the delegate of the judge in private. The delegate reduced the depositions to writing, and they formed the chief material upon which the parties and the judge proceeded at the hearing. With these canonical methods and rules as to

1 Esmein, op. cit. 94.

3 Esmein, op. cit. 94-95.

6 Esmein, op. cit. 98.

8 Ibid 106; cp. vol. i 303-304, 315-319.

Esmein, op. cit. 95-96, 120.

2 Ibid; vol. i 327.
4 Ibid.

7 Ibid 99.

5 Ibid 97; vol. i 312.

10 Ibid 99-100.

11 Ibid 114-118-they appear at first not as direct parties, but as promoting the

office of judge, as denunciators who set the judge in motion.


evidence came the use of torture. It may be that in certain exceptional cases some Germanic customs allowed torture;1 but it is clear that the rapid growth of this method of examination was due to the rules of Roman law which were adopted by both canonists and civilians; for, as the new methods of trial were more complicated, they tended to increase the influence of the professional lawyers. "Our jurists," says Esmein, "found in the pages of the Digest and the Code the custom of torture expounded by the great jurisconsults and regulated by the constitutions of the emperors. Such weighty authority was without doubt bound to cause partial forgetfulness of the odious nature of this mode of examination."3 The king in that turbulent age found it necessary to use it to repress crime, and other jurisdictions soon followed suit. Moreover it satisfied two technical needs. In the first place the "aprise" could not proceed without very conclusive evidence or confession; and so it was tempting, if a prisoner refused the inquest, to try to force a confession by torture. If he accepted the inquest torture was never at this period resorted to.1 In the second place the civil and canon law required, in the absence of confession, such complete proof that the temptation to get a confession was increased. "The connection," says Esmein, "between the rigorousness of the proofs and the use of torture is destined to form a vicious circle within which our old criminal procedure will revolve throughout its whole future existence." 5

This new system of criminal procedure was not established without protest. At first a man convicted by the aprise could not be punished so severely as if he had been convicted by the accusation of a private person. The nobility protested against the procedure by inquest in matters which affected their persons, property, or honour; and, for a time, the nobility succeeded in making good their claims. But gradually the newer ideas prevailed and the procedure was made to press, not less, but more heavily upon the accused.

The introduction of the new system was helped by the fact that, in the fourteenth and fifteenth centuries, a distinction between "ordinary" and "extraordinary" procedure was established. the latter form of procedure torture was allowed, secrecy became one of its dominant characteristics, and freedom of defence was more and more curtailed. This extraordinary procedure was,

+ Ibid 113.

2 Ibid 106.

5 Ibid 113.


1 Esmein, op. cit. 108-111. 3 Ibid 112. Ibid 95-" For a fairly long time the sufficiency of the 'aprise' to sustain the ordinary and normal punishment of the offence was denied"; and at an earlier period the same rule held in the case of one convicted upon an inquisitio in the ecclesiastical courts, ibid 82.

7 Ibid 102.

8 Ibid 103-104.

• Ibid 126.

as Esmein says, destined to be "the procedure of the future." 1 At first indeed it was not the normal procedure-it was really extraordinary. It could not be employed when a private person was the accuser, or when the accused submitted to the inquest.3 But gradually these rules disappeared. It came to be used in all cases of serious crime, and the ordinary procedure by inquest fell into disuse. For some time, however, the accused was allowed considerable freedom in his defence. "Before sentence he could plead his cause or have it pleaded for him; and he could also allege facts in justification and prove them by witnesses." 5 Moreover the court facilitated the proof by the accused of any facts— an alibi for instance-which he might set up in his defence." But gradually these safeguards disappeared. Under the Ordinances of 1498 and 1539 the characteristics of secrecy, torture, and restricted opportunities of defence, became the salient features of the procedure.

The ordinary course of procedure under these Ordinances was as follows:


First there was the information verified by the evidence of witnesses. This was submitted to the judge and communicated by him to the king's procurator." On his advice the judge either let the matter drop or summoned the party accused. In any serious case the accused was arrested and kept in prison during the whole of the subsequent proceedings, and was denied the assistance of counsel.10 The accused was then interrogated by the judge "immediately, carefully and assiduously," and his replies were reduced to writing."1 Unless the parties wished to get a decision as to the legal effect of the facts elicited by the interrogation, the next step was for the judge to decide whether to hear the case as an ordinary or an extraordinary action; and on this matter the Ordinance forbade the accused to be heard. 12 Generally the judge decided to hear the case by way of extraordinary action. 13 The witnesses were then summoned anew to confirm the evidence which they had given on the information. Each witness was then confronted with the accused, who, then or not at all, must raise any objections he had to the competency of the witness.14

Up to this point the accused had had no opportunity of proving his innocence; and both the theory of evidence and the practice

1 Esmein, op. cit. 126.

4 Ibid 132, 133.

7 Ibid 150.

[blocks in formation]

6 Ibid 141.
9 Ibid 151, 160.

10 Ibid 151; art. 162, cited ibid 159, says" In criminal matters the parties shall in nowise be heard by counsel or agency of any third person; but they shall answer by their own word of mouth for the crimes of which they are accused." 13 Ibid 153. 14 Ibid 153-154.

11 Ibid 151, 152.

12 Ibid 152-153.

According to the

of the court made it difficult for him to do so. canonical theory of evidence there was no need to bring witnesses to prove absence of guilt, as it was for the prosecution to establish the fact of guilt by bringing the proof required by the law. If they brought these proofs, he was guilty: if they could not bring them, he was not guilty. All the accused could do was to adduce evidence of new positive facts inconsistent with guilt, e.g. an alibi, or the fact that a person supposed to be murdered was alive, or insanity, or self-defence. These facts must be pleaded by the accused when he was first interrogated, and he must get the leave of the judge to prove them.1

The whole process was then submitted to the king's procurator. If the accused had pleaded no new facts inconsistent with his guilt the court was moved to make a decree for torture or final sentence. If he had pleaded such facts motion was made that he prove them; and then, if the judge allowed such proof, the witnesses were examined by the court in the absence of the accused, and their depositions were put into writing. The whole record was then submitted to the court. If the proof was not conclusive, but nearly conclusive, the court could order torture (question préparatoire) to extort a confession. If it was conclusive the court proceeded to sentence; and after sentence the condemned person could be tortured (question préalable) in order to extract the names of his accomplices. Even the sentence of the court was not publicly pronounced.8 ·

A few protests against this system were made; but they found no echo in public opinion." "It is not so easy," says Esmein, "to understand the unopposed acceptance of this

1 Esmein, op. cit. 155-156—" If the fact was not 'legally' proved by the witnesses brought by the prosecution, any proof on the part of the accused was said to be useless. If, on the contrary, the action should establish, by the requisite proofs, that the crime had actually been committed and that the accused was the perpetrator of it, he could only rebut the testimony by means of the objections which he had urged, or prove that these witnesses were suborned, or, finally, offer certain positive facts, which formed his justification. These facts-called 'justificatifs '-were of two kinds; some proved the innocence of the accused indirectly, but beyond dispute. Such were the alibi. . . . Others, without rebutting the facts established in the action, deprived the act of all criminality; for example, legitimate self-defence, or insanity. Objections to the witnesses and justificative facts, therefore, were the only defences left to the accused;" for similar and even more restrictive rules in Scotland, see Stephen, H.C.L. i 351-353-it appears that even proof of an alibi was not admitted.

3 Ibid 156-157.

2 Esmein, op. cit. 156. 4 Ibid 157-to enable the court to understand it, it was accompanied by a report made by a judge; similarly in Select Pleas in the Star Chamber (S.S.) i 191, 192 we get the points of a case summarized; and see Nicholas vii 287 (1541), for a case where the depositions were abridged by the examiner.

Ibid 157-158.

6 Ibid 158-159.

7 Esmein, Histoire du droit Français 779.
History of Continental Criminal Procedure 159, 160.
• Ibid 165-173.

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