The customs of different courts themselves differ from each other, and each court has its own method of pleading.
[The ecclesiastical forum]
If a civil or criminal suit has to be brought against anyone in the ecclesiastical forum, before the bishop or archdeacon or official or dean, this will be enrolled. If the person summoned does not come to the first chapter after the citation, and does not send a proctor on his behalf either, he is suspended from entry into church by judgement of the chapter and the verger shall be ordered to cite him again peremptorily to come to the next chapter. And if he (then) comes, he shall swear, before he enters into the church, to stand to judgement of holy Church for his contumacy, and will thus be in the mercy of the bishop or the archdeacon or the official or the dean, depending on which person he may be before.
[Civil procedure of the ecclesiastical forum]
Once he is present in chapter, the plaintiff
(actor) can bring a civil suit against him in this manner:
"A says against B. and the other executors of M., C.'s widow, that whereas the said C. made him a legacy of ten shillings in his last will, and appointed his wife M. as his executrix in his testament, and the said money did reach the same M. she did not pay anything to him although she could have done. He therefore seeks that the said executors be compelled, jointly and severally by a sentence to pay and that justice be shown to him. This he says and seeks, saving the benefit of his right (salvo sibi iuris beneficio)."
The defendant (reus),
however, when he heard this, can seek the plaintiff's libel (edicio)
and full statement of claim (intencio) and a time for delivery
(of these), so that he may deliberate with himself whether he wishes to
concede or dispute (them) at the following chapter. And when the defendant
(inplacitatus) does come, he can raise dilatory exceptions
against the plaintiff, whether he wishes to concede or dispute (the main
issues), and they will be allowed or refused according to the judgement
of the chapter. If they are refused, a day will be given at the next chapter
for the issue to be heard (ad contestandum precise).
Once formal issue is joined (lite
contestata), the plaintiff will be given a day to produce witnesses
if he has any. This is how issue is joined. To join issue, B., M.'s executor,
says that the things which are asked for are not truly asked for and the
petitions should therefore not be granted to A. On the day (fixed), the
plaintiff comes and produces witnesses, who are received after they have
been sworn. They will swear in this way. They raise their hands towards
the altar or onto the missal, and say: "Hear this, O my lord dean, that
I shall not say anything false nor conceal anything true, any other reason
in the world, so help me God." Then the official will appoint two or three
examiners, to examine those who have been sworn, whose depositions is to
be written in this manner:
"B., having been sworn and examined, says that he was present when C. drew up his testament and bequeathed ten shillings to A. this year at his house in G. Asked on what days and at what time, he says on the Sunday after the Purification of Blessed Mary immediately after mass at the third hour. Asked who was present, he says P. the chapiain and H. the clerk and S. who is sworn with him. Asked in what clothes the said C. was dressed, he says that he was wearing a green surcoat with a russet hood.
S., having been sworn and diligently examined, agrees in all things with B. who was sworn before him, adding (only) that M. the said C.'s wife, held C.'s head when he made the ten shillings legacy to A."
When the witnesses have been examined
in this way, their depositions are enclosed (includentur)
under the examiners' seals and handed over to the official or judge. The
parties will (then) be given a day, for the plaintiff to produce more witnesses
if he so wishes and for the defendant to speak against the witnesses and
their testimony if he wishes. When the plaintiff comes to that second chapter,
whether or not he produces more witnesses, he will enjoy his day (illo
die gaudebit). Then when the plaintiff comes to the third chapter,
whether or not he produces more witnesses, the testimonies are published
and a copy of the transcript given to the defendant, who then receives
another day at the next chapter to dispute (the testimony). But if both
parties are present at the third chapter and the defendant does not wish
to contradict the witnesses and their testimony, argument on the evidence
will follow immediately with the judges and the legal experts (iurisperitis)
sitting there with them, and their interlocutory and definitive sentence
will be given. If it is for the plaintiff, the defendant shall pay him
and will nevertheless remain in the mercy of the official or judge. If
for the defendant, he will be released from the plaintiff's claim as far
as that case is concerned, and it is the plaintiff who remains in mercy.
On violence and the criminal procedure of the ecclesiastical forum
If a criminal suit has to be brought against
anyone, the plaintiff's complaint will be heard and then enrolled. When
the defendant is present in the chapter, the plaintiff can bring his criminal
suit in this manner:
"The cleric A. says that B. and C. put away their fear of God and laid violent hand on him. He therefore seeks that they be compelled by judgement to make satisfaction. This he says, saving the benefit of his right".
The aforesaid B. and C. appeared before
the chapter and denied expressly that they had done violence to the cleric.
The complainant cleric was ordered to have at the following chapter suitable
witnesses who could prove his case (intencionem).
When that cleric came to that chapter and produced his witnesses, they were sworn and diligently examined and their testimonies published. B. and C. were convicted by their testimony. And it was decreed in that chapter that they should do satisfaction to the sufferer for the injury (iniuriam) and be in the official's mercy and so to the apostolic see with testimonial letters of the lord bishop to absolved.
What should be said about matrimonial causes
This is how to bring an action in a matrimonial cause. If any woman complains to the official about a certain young man, that when he plighted her his troth by present words, thus "I accept you as my wife", or thus by future words "I shall accept you as my wife (...) and I have carnally known you", (then) that marriage cannot be broken in any way, because the plighting of troth with consent of minds and a carnal bond completes the marriage .
(But marriage is the joining of a man and a woman, both being lawful persons and retaining an individual custom of life. Lawful persons are those whom no law forbids to marry. There are two kinds of faith (fides), consent by present words, and agreement (paccionis) by future words.)
The aforesaid young man, spurning the faith
of religion, does not wish to marry that woman, as agreed between them.
He shall be cited to come and answer the woman in the way specified above.
When he eventually comes to hear what that woman pleads (proponet)
against him, she shall plead her action in this way:
"N. de C. seeks B. as her husband on the grounds that he contracted marriage with her by present words. She says and seeks this, saving in all things the benefit of her right".
Now if the aforesaid B. acknowledges
that he has done this, he shall be given a day to solemnise the nuptials.
But if he denies it and issue is joined, the woman shall be given a day
to establish (ad . . corroborandam) her claim (intencionem)
which she pleads against him. When she comes on that day she shall enjoy
first (opportunity for) production and shall produce as many witnesses
as she wishes, as long as (tamen) every word is consistent
in the mouth of two or three. When these witnesses have been sworn and
examined, she shall be asked whether she wants to produce any others. If
she does, she can have a second (opportunity for) production at another
chapter, and a third at a third chapter in she wishes. Then the testimonies
are published, and the young man shall be given a copy of the transcript
and a day at the next chapter to dispute or speak against the witnesses
and what they have testified. And that young man shall have as many chapters
as the woman had, to speak on the witnesses and what they testified.
But in the next chapter, with the parties present, after publication of the testimonies and when there has been much argument hither and thither, finally the aforesaid woman shall either be adjudged to the aforesaid young man or not. If she is, he shall be given a day for the ceremony. If not, that young man shall be released from all claim of the aforesaid woman for ever and shall swear that he shall never know her carnally form then on, except by judgement of the church (secundum ecclesie constitucionem) . . . .
Letters for someone to appoint proctors to the Roman Curia
To all Christ's faithful who see or hear
the present letters, R., rector of the church of C., sends greetings in
the Lord. May you all know that I have appointed the Englishmen B. and
N., bearers of these presents, to be my proctors in the Roman Curia to
obtain, to contradict, to consent to judges, and, if necessary to sue in
my name for the aforesaid things, to substitute another proctor . Whatever
the aforesaid proctors or either of them causes to be done in my name by
obtaining, contradicting, consenting to judges, or substituting another
proctor, shall be ratified and confirmed. Done in the first year of the
pontificate of our lord Innocent IV. Farewell.
H.G. Richardson and G.O. Sayles (ed.), Select Cases
of Procedure Without Writ under Henry III (Selden Soc. 60 1941),
pp. cxci-cciii prints this little anonymous tract on court procedure. The
editors ascribe it to England in the period 1220/45. The portion translated
here comes first,
pp. cxcv-cxcviii, and is followed by an account of secular court procedure
first in civil and then in criminal suits.