ABSTRACT
Origins of the European Inquisition Inquisitorial justice (processus per inquisitionem) was a revolutionary new form of trial developed in the late 12th and early 13th centuries in Europe. Its origins were primarily intellectual, being the self-conscious creation of medieval schoolmen. In practice, however, it was driven forward and promoted by the great magnates of the church and secular authorities. At its heart was the concept of the judge-inquisitor, endowed with wide-ranging powers but constrained by complex rules of practice: the so-called ‘ordo juris’ of the Roman-canon method. Moreover, by contrast to the clumsy and arbitrary processes which preceded it, inquisitorial justice was ‘a brilliant and much needed innovation in trial practice, instituted by the greatest lawyer-pope of the Middle Ages’ (Kelly 2001, p.450). That pope was Innocent III, whose Lateran Council of 1215 must be seen as the decisive moment in the adoption of the inquisition in Europe. This chapter will review the origins of the inquisition and its development in the German Carolina of 1532 and the French Code Louis of 1670. However, before considering the intellectual movement which originally gave rise to processus per inquisitionem, and seeking to establish why it made such spectacular progress in continental Europe but gained no sustained foothold in the secular courts of England, it is important to understand the nature of the existing criminal trial process. Criminal justice on the eve of the inquisitorial revolution was everywhere seen as a patrimonial duty, exercised in the seigniorial courts of the great magnates, in the royal courts within the crown’s estates, in the municipal courts in the towns and, above all, in the canon courts of the church. The procedure in each form of court was broadly the same; communal and accusatorial. The right to initiate procedure by accusation belonged to the victim or to his or her close kin or feudal lord. Procedure was public, oral and relatively formal, with courts sitting in the open air and superintending one of the major forms of proof. These were, generally, oath-taking by the accuser and compurgators, combat or the ordeals. Nothing could occur without the active participation of the accuser and it was only in respect of offenders apprehended in flagrantia or by an arrest on suspicion that the judge could act alone. In the latter case, the arrest would end if no accuser came forward (Esmein 1914, pp.54-77). Central to many of these prefeudal modes of trial throughout the Germanic kingdoms of western Europe were
The ordeal flourished in Europe throughout the period 800-1200. Originally restricted to the ordeal by boiling water, the variety of ordeals developed significantly during the period, although, according to Bartlett, the main techniques were:
… the trials of fire and water: holding or walking on hot iron, immersing the hand in boiling water, or complete immersion in a pool or stream. Such practices have two important features in common. They were all unilateral, usually undertaken by only one party in the case; and they all required that the natural elements behave in an unusual way, hot iron or water not burning the innocent, cold water not allowing the guilty to sink (1986, p.2).
