The Romano-canon Tradition

Both common lawyers and civilians developed methods of assigning legal guilt only on the basis of the highest degree of certainty attainable in human affairs. The Romano-canon tradition hoped to achieve that goal with its method of legal proof—the testimony of two unimpeachable witnesses or confession of the accused. The Anglo-American tradition developed, albeit somewhat later, the jury verdict based on the concepts of satisfied conscience and moral certainty and their cognate, conviction beyond reasonable doubt. Both legal systems experienced greater difficulty in defining levels of probability to be met at earlier stages of criminal procedure. The Romano-canon law constructed concepts such as common fame, as distinguished from mere rumor or report, to serve as standards for arrest. The threshold for judicial torture aimed at eliciting confession was defined by a rather elaborate system of indicia and presumptions. And the Romano-canon system developed, albeit hesitantly and for use only in exceptional situations, methods of reaching decisions based on circumstantial evidence. The English system was similar in that it, too, attempted to develop criteria for moving from one pretrial stage to the next while screening out capricious accusations. The English sometimes borrowed concepts employed at one stage for use at another, and sometimes, either consciously or unconsciously, borrowed from the civilians as well.

The Romano-canon system of proofs had begun to develop even before the ecclesiastical prohibition of the ordeal of 1215.^[1] Indeed the ordeal could not have been effectively abolished had there been no institutional and procedural alternative available. The Romano-

canon system also had antecedents, and we must at least briefly note the heritage of the classical tradition of rhetoric, which had developed methods for treating the evidence and arguments of the everyday world.

The categories and concepts of probability and certainty were first explored in ancient Greece and Rome. Philosophers concentrated on developing methods that would yield certain or demonstrative knowledge, while rhetoricians focused on those areas of thought and life in which only probability was possible. Probability was thus a central concept for everyday decision making of which the law courts were part. The rhetorical tradition was concerned with argument rather than evidence, but eventually the categories established for one were transferred to the other. The rhetorical tradition was transmitted to and further developed in Rome, where rhetorical training became part of a gentleman's education and was necessary for participation in the forum and the law courts.

While many of these concepts were explored by Aristotle and Cicero, those most relevant to this study appear to have been transmitted most directly to later generations in Cicero's De inventione and Quintilian's Institutes of the Orator . A number of these concepts were developed further by canonists and civilians and then adopted and adapted by common lawyers. Quintilian's discussion was directed at the judicial oration and was not a part of the ancient Roman law of evidence, which was largely undeveloped.

Quintilian differentiated between inartificial and artificial proofs, a distinction already to be found in Aristotle's Rhetoric .^[2] The first were proofs that were not the result of the art of the orator. In this category were witnesses, deeds, tortures, reports, and precedents. Although not created by the orator, they might be reenforced or countered by the powers of eloquence. Quintilian emphasized the oratorical uses of rumor and fame and noted how they might either be credited or discredited as idle stories. Torture similarly could be used positively by the orator as a necessary means of obtaining truth or denounced as yielding false testimony given only to avoid pain. Witnesses also could be used pro and con, and hearsay could be denounced as relying on the testimony of those not sworn to tell the truth.^[3]

Artificial proofs—those constructed by the orator—were described and analyzed. The "things proper to enforce credibility and

conviction" in the oration included signs, arguments, and examples. Quintilian's treatment of arguments is important because he discussed a variety of types which later found their way into canon and civil law and then into English law, particularly into the English "causes of suspicion" which provided the conceptual basis for both arrest and pretrial examination.^[4] The rhetorician's distinction between inartificial and artificial proofs also had a long life—after these concepts had been translated, albeit somewhat incorrectly, into direct and indirect, or circumstantial, evidence. The rhetorical concept of artificial proofs would have an extremely long life, playing an important role in both canon and civil law and in the Anglo-American tradition.

For Quintilian, "arguments" of the judicial orator dealt with the probable. One kind of probabilistic argument might be drawn from "persons." Because it was widely believed that children were similar to their parents and ancestors, arguments from family might be employed in establishing honesty or scandalous life-style. Arguments based on nationality, sex, age, education, bodily habits, and personal fortune or condition might be significant. Men were more likely to be robbers and women poisoners. Eminent men, magistrates, and freemen were more likely to be innocent than those who followed mean occupations or who were private men or slaves. An individual's "passion or inclination" toward avarice, cruelty, or luxury provided strong arguments against him.^[5] It would not be difficult for medieval and early modern legal thinkers to adapt these rhetorical categories to the examination of suspects and witnesses.

For Quintilian and the ancient rhetoricians, arguments might also be drawn from the causes of things done or that may be done. Questions of time, place, and the powers or abilities thus could be used, as could antecedents of the affair, collateral circumstances, consequences, opportunity, instrument, and method.^[6] Here, again, what were categories and types of argument for Quintilian and the ancient oratorical tradition were translated into evidentiary categories in later legal traditions. Other varieties of argument, such as those from similarity and definition, did not find their way into the evidentiary tradition, though they remained a mainstay for speakers and writers both in and outside the courtroom.

That portion of the rhetorical tradition dealing with public issues was largely eclipsed in the late imperial period. The law under

Justinian had not found a stable theory of evidence in any event.^[7] And much of rhetoric's legal application was lost in the early Middle Ages as the legal institutions of Germanic groups overlay and succeeded Roman institutions and practices. The era of irrational proofs, ordeals, compurgation, oaths, and oath helping did not require much of what we would call evidence or even argument.

Scholasticism, however, did concern itself profoundly with questions of evidence, proof, and appropriate modes of argumentation in a wide range of subject matters from theology to physics. Scholasticism was, of course, primarily an ecclesiastical development, and so naturally it looked first at its own institutions and priorities, including the procedures of the ecclesiastical courts. This intersection of scholasticism and courts reintroduced elements of the rhetorical tradition into legal practices. The decades both preceding and following the abolition of the ordeals developed rational approaches to a large variety of intellectual and legal issues.

The ecclesiastical courts spread over all of Christendom, including England, and administered an ecclesiastically developed canon law. Central to that law was the Romano-canon inquisition process, which left significant residues in English law, particularly in the evidentiary aspects of pretrial criminal procedure. One of the reasons that this indebtedness has not been sufficiently recognized is that the history of the Anglo-American law of evidence has focused almost exclusively on the trial and has largely ignored pretrial procedures.

The Romano-canon inquisition process was developed early in northern Italy. From there it spread to France and other northern European countries, where to varying degrees it combined with and replaced not only the ordeal but also other Germanic and feudal modes of trial. Canonists and the northern Italian civilian jurists developed an elaborate and systematic jurisprudence, which contained rational methods of proof, techniques for examining witnesses, methods of discovering and verifying facts, and rules to prevent the introduction of superficial and impertinent evidence.

All legal systems require methods of bringing accused persons to the attention of the court as well as rules for establishing guilt or innocence. Ecclesiastics were the first to develop techniques, or criteria, for bringing accused persons, frequently ecclesiastics, before an appropriate tribunal. Concepts of suspicion and common

fame were introduced as elements in the screening process. By the thirteenth century there was already considerable discussion of fama and its procedural role. Fame, which arose from people who had reason to be knowledgeable, was to be believed but was not held to be certain or true. Common fame was sufficient to detain a suspect and initiate criminal proceedings but alone was insufficient to convict or even to torture.^[8] Chapter 2 described how Bracton employed the Romano-canon distinction between common fame and rumor.

Either confession or the testimony of two unimpeachable witnesses was required for "full" or legal proof in serious criminal offenses.^[9] Circumstantial evidence was considered inferior and did not constitute legal proof. Nor did the testimony of a single witness, even if consistent with other evidence.

Full or complete proof in serious criminal matters was not always readily available. Two good witnesses were not always conveniently present at the commission of a crime, and confessions often were not forthcoming. The Romano-canon inquisition process thus developed judicial torture as a means of eliciting confession. Judges, both ecclesiastic and civil, could not act capriciously. Only if signs, or indicia , were available in sufficient quality and quantity could torture be applied to the accused. A learned literature dealing with the indicia , which were drawn from the rhetoricians' categories (for example, time, place, and the power and ability to do the act), came into existence to provide the necessary guidance and uniformity. Unlike the area of legal proof, in the areas of indicia , circumstantial evidence, and presumption, the subjective persuasion of the judge played a substantial role.

The Romano-canon inquisition process required a legally trained bureaucracy and was not characterized by the combination of lay jurors and professional judges so typical of the Anglo-American system. A hierarchical arrangement allowed for appeal, which was lacking in the nonhierarchical English legal system. Professionalization permitted the development of a sophisticated and complex approach to matters of evidence and proof. A highly sophisticated and technical treatise and procedural tradition developed to insure uniformity and the exploration of difficult evidentiary issues. It resulted in a learned Latin literature of European scope. That literature, continuously enriched by canonists and civilian jurists, be-

came even better and more widely diffused with the advent of the printed book. This body of writing dealt not only with witnesses and formal legal proof but also with circumstantial evidence, the indicia , and presumptions. The names of Tancred, Durantis, Bartolus, Baldus, Menochius, Mascardus, Alciatus, Clarus, Matthaeus, Farinaccius, and Carpzov suggest the richness and longevity of this tradition.

The system of legal proof proved difficult to operate, and over time alternatives were developed which permitted a role for circumstantial evidence and less than full proof. The first modification was the introduction of the category "manifest," or "notorious" crime, a crime so well and widely known that it would not even require an accuser. Another circumvention that had developed by the thirteenth century allowed conviction on the basis of undoubted indicia , the indicia being that circumstantial evidence or those signs which were the criteria for torture. Thus undoubted indicia , or "violent presumption," might sometimes allow conviction. In addition, there was a special category of secret or difficult to prove crimes, the crimen exceptum , which permitted proof by undoubted indicia or violent presumption.

Another modification that blurred the distinction between legal and lesser proofs was the development of the poena extraordinaria , which permitted an enhanced role for circumstantial evidence and conviction on less than full legal proof. Partial punishments were permitted for partial proof. The poena extraordinaria thus permitted punishment, albeit not the death penalty, with less than full or legal proof. Two half proofs might lead to judgment. The proof of a single witness and grave indicia also made a decision possible. This device, developed by Italian jurists, spread to France and other Continental nations.^[10] Still another device was to withhold judgment when less than full proof was available. Although judgment theoretically might be given at a later date, presumably when more or better evidence became available, this device effectively functioned as a kind of probation because, at least in France, defendants typically did not return to court.^[11] There were thus a number of developments and procedures which blurred the line between full proof and lesser proofs.^[12]

As we shall see shortly, many of the conceptions of the Romano-canon inquisition process, for example, common fame, the indicia ,

presumption, circumstantial evidence, and exceptional crimes, were eventually found in the Anglo-American legal tradition, albeit with their Continental sources unacknowledged. They were adapted to a quite different set of institutions and procedures and were largely administered by laymen rather than legal professionals. Both this and the following chapter trace the migration of conceptual elements of the Romano-canon evidence system to the English. Some of that transmission has already been referred to in connection with grand juries.

If the English legal community faced many of the same problems as the Continental, then it is important to ask why it did not openly borrow, or at least openly discuss, Continental alternatives. The answer to this question is rather complex. The English did selectively borrow from the canon and civil law, but they were reluctant to admit it for a number of reasons. One was the national chauvinism so clearly expressed in Sir John Fortescue's late fifteenth-century De Laudibus Legum Anglie , which contrasted Continental and English legal and political systems. England's superior system was defined by a monarchy limited by law and trial by jury, while the French monarchy was unlimited by law and employed a legal system characterized by inquisitorial procedure and torture. Civil law was associated both with the absence of local and lay participation and an absolutist form of monarchy.^[13] This association was for many generations a potent element in English political ideology.

Rivalry between ecclesiastical and common-law jurisdictions also militated against explicit borrowing. When borrowing did occur, it was safely anglicized through citations to Bracton or Coke. Star Chamber and Chancery procedure exhibited some Romano-canon features, such as the absence of juries and the use of written depositions. Admiralty was run largely by civilians employing civilian procedure. Romano-canon conceptions of proof were thus well known, continuing virtually unchanged in the post-Reformation ecclesiastical courts. The very fact, however, that these conceptions of proof were employed by the rivals of the common-law courts provided a strong incentive for common lawyers to associate them with the evils of Continental despotism. The many sixteenth- and seventeenth-century editions of De Laudibus Legum Anglie thus had the effect of reinforcing the contrast between the nefarious

inquisition process and the trial by jury, the former associated with Continental despotism, the latter with English constitutional monarchy.

There were, of course, civilians in England, and civil law was taught at the universities by the Regius Professors. The civilians added a comparative perspective on English law that generally was lacking among the common lawyers.^[14] But even that academic perspective was translated into political controversy. Thus, the civilian John Cowell, like William Fulbecke before him, wished to explain the differences and similarities between the English and civil law. Cowell's Institutes and the Interpreter appeared during the heyday of adulation of the common law. Coke's approach was thus to accuse Cowell of being foreign and disloyal.^[15] The ideologically based rejection of Cowell's work thus obscured many of the common elements in English and Continental law. Cowell also hoped a side-by-side comparison of civilian and common-law cases would show "that they both be raised of one foundation, and differ more in language and terms" than substance.^[16] Cowell noted that citations to Bracton and other medieval English legal sources typically failed to note that these sources were themselves frequently citing Roman law "in disguise." But it was dangerous, in Coke's opinion, for canonists and civilians "to write either of the common laws of England which they profess not, or against them which they know not."^[17] Coke's influential posthumously published Institutes continued the attack. The hostility of the common lawyers was thus an important factor in obscuring the comparativist approach of sixteenth- and seventeenth-century civilians. The similarities among the various European legal traditions were thus obscured.

Nevertheless, leading legal thinkers and reformers such as Sir Francis Bacon and Sir Matthew Hale were well read in the civil law tradition. Indeed, it has been suggested that Bacon's empirical philosophy owes something to methods of Chancery interrogation. Bacon's correspondence too suggests his admiration for the civilians as well as his commitment to the common law.^[18] Mid-century civilians Arthur Duck and Sir Robert Wise also emphasized the importance of the civil law for the common law. Duck suggested that common lawyers "were excellently well-versed in the Civil Law, from whence they have borrowed a great deal, both to explicate and to illustrate the law of England" and denied that the civil law

was "foreign."^[19] Sir Matthew Hale, the most prominent jurist in the decades following Coke's preeminence, exhibited an increasingly open but still circumspect attitude toward the civil law. Hale "set himself to the study of the Roman Law" because the "true grounds and reason of the Law" were so developed there that "a man could never understand law as a science so well as by seeking it there," and he "lamented much that it was so little studied in England."^[20] Yet Hale's writings rarely indicated openly a dependence on the civil law. National hostility had not yet sufficiently abated to allow Hale to indicate that he occasionally was merely translating civilian doctrine into English law.^[21] Those who relied on Hale were thus unaware of the ways in which English law made use of Roman legal concepts.

By the beginning of the eighteenth century, however, attitudes toward the Roman law were changing. Not only was the comparative perspective becoming more respectable, and the books of earlier civilians like Cowell reissued, but works like Thomas Wood's New Institute of the Imperial or Civil Law became quite popular. Wood was anxious to show the gentlemen of the realm how the Roman law had influenced England as well as other European nations. He insisted that the English had borrowed many rules and modes of reasoning from the civil law, although English lawyers were "apt to think that it was all their own from the Beginning because they have Possession and find it as present in their Books."^[22]

Perhaps more important than Wood's project was the revived interest in natural law. From a natural law perspective the English common law and the civil law might have been seen as cousins within a universal natural law family. A natural law perspective thus was important in overcoming the almost automatic dismissal of non-English law. If borrowings from the civil law are most obvious and had their greatest impact on commercial law, the erosion of fear and hostility also made it easier to incorporate concepts relating to evidentiary matters. The development of treatise literature in the eighteenth and nineteenth centuries also was important, for many treatise writers hoped to base their work on a general or universal foundation.^[23]

Many of the eighteenth-century natural lawyers were Continental civilians who incorporated large portions of the civil law tradi-

tion into their work. The absorption of civilian principles into natural law formats made them more palatable to the English. Domat's much-praised late seventeenth-century Civil Law in Its Natural Order (1694), which was widely read in England, contained a lengthy section on proofs and presumptions.^[24] Though many of Domat's statements on these matters were civilian in character, proofs and presumptions were explained in general terms rather than as the law of a specific place and time. Similarly Pothier's Treatise on the Law of Obligations or Contracts (1761) provided a short section on the law of proof, which is a "general view of the law of evidence," in a form that did not obviously smack of foreign influence.^[25] The translations of Domat and Pothier mark a new openness to Roman law, as well as to the spirit of systematization and the efforts to establish a general science of jurisprudence. The development of the treatise tradition also is linked to these developments.

A second major eighteenth-century development that influenced English writers on evidence was the self-conscious absorption of philosophical principles into the law. We have already seen the philosophical and epistemological bases of the concepts of moral certainty and beyond reasonable doubt. We shall see in Chapter 4 how treatments of circumstantial evidence and presumption were similarly affected by efforts to place them in the context of epistemology and logic. We should note here the importance of the Scottish Common Sense school of philosophers upon which so many English and American writers would draw. This school was not only associated with a kind of natural law approach but also informed by the evidentiary concepts of the civilians who played an important part in the law of Scotland. English writing on evidence drew heavily on Scottish philosophy.

The combined impact of the Continental natural law tradition and the philosophical developments of the eighteenth and nineteenth centuries thus created an attitude far different from that of earlier times. As we shall see in Chapter 4, the work of the treatise writers grafted these principles onto the traditional practice and lore of English evidentiary rules and principles and expanded them enormously in the process.

The experience of the United States ran along similar lines. Indeed it was heightened by the temporary post-revolutionary de-

sire to lessen dependency on English law. The advantages of the civil law were thus paraded in most of the former colonies.^[26] Even before the Revolution, however, Americans were making use of the natural law tradition. In America that tradition was often facilitated or mediated through the Scottish Common Sense school. The Scottish philosophy carried not only a natural law but also a Scottish civil law approach to evidence. As Americans absorbed one from the Scots, they were bound to absorb some of the other as well.

During the eighteenth and early nineteenth centuries the civil law in America was associated with order, clarity, and coherence and provided, if only briefly, a counterweight to the somewhat suspect British tradition. The civil law, often filtered through the natural lawyers, thus made a considerable impact on early American legal thought. Joseph Story (1770–1845), associate justice of the Supreme Court, typifies the new attitude. Not only did Continental jurisprudence rest on the foundations of ancient Roman law, but also the English common law "condescended silently to borrow many of its best principles" from it as well.^[27] Chancellor James Kent's Columbia law lectures exhibit a similar attraction to the civilians. He, like Story, notes the long-term prejudice of the English lawyers against the civil law and the new appreciation of the "intrinsic merit of the Roman system."^[28]

The silent borrowing observed by Story and others is often difficult to trace in the English texts. Open borrowing, however, became easier and more acceptable for the Americans when it was derived from or placed in the context of natural jurisprudence, which appeared less foreign. Pufendorf, Heineccius, Burlamaqui, Domat, and Pothier were thus far easier to absorb than the civilians of earlier centuries.^[29] Americans of this generation were relatively free of the ideological need to dissociate themselves from the Continental legal tradition.^[30]

American legal educators also hoped to make better use of civil law principles. David Hoffman's Course of Legal Study emphasized the current importance of the civil law and, like Story and Kent, the degree to which the common law had silently borrowed from it.^[31] Hoffman recommends the writings of several early modern civilians, and praised the recent philosophically oriented evidentiary treatises of Starkie and Phillips.^[32] Evidence for Hoffman was

"without doubt the most important branch of a student's course" and "should be founded on the clearest observations, of man's moral and intellectual nature." Proper education in evidence required not only the study of the English treatises, but also "such works as manifest the great and pervading truths of the science—evince the general philosophy—and teach the experience of other ages and other nations." "The philosophy of the English law of evidence has been much impaired by a . . . neglect of the civilians" and of the Continental evidence tradition. In addition to works by civilians, he recommends the logical and epistemological writings of Bacon, Locke, Watts, Reid, Butler, Paley, and Stewart.^[33]

Hoffman is particularly important for our purposes because he suggests not only the new willingness to incorporate the evidentiary tradition of the European civilians but also the concern to bring to bear the philosophical traditions of epistemology on legal evidence. Like so many treatise writers on evidence, Hoffman insisted on the need for law to be placed in the context of contemporary theories of knowledge. The willingness to use the civilians and the philosophical work of the epistemologists and logicians was already bearing fruit in Anglo-American writings on evidence. We have already seen how philosophical works resonated in the development of the concepts of moral certainty and beyond reasonable doubt. In Chapter 4 we will see how they provide the intellectual underpinnings for works dealing with presumption and circumstantial evidence.

America's brief but important enthusiasm for the civil law reached its height in the 1820s and 1830s and ceased to be a major intellectual force by 1850, largely because the enthusiasm never made substantial inroads on most practitioners and because intellectuals were becoming more attracted to Benthamism and the historical school.^[34] The period of increased openness of the upper echelons of the English and American legal community, however, coincided with the flourishing of the legal treatise. And it was the treatises employed by law teachers and practitioners which conveyed philosophical and civilian influences into the mainstream of Anglo-American legal culture. Practitioners were thus often unaware that portions of the law of evidence which treated such matters as circumstantial evidence and presumptions were at least partially derived from philosophical and foreign legal sources.

It has been necessary to present this general background material on Roman law influences because developments in the law of arrest, preliminary examination, and grand jury indictment that are discussed here and the discussion of presumption and circumstantial evidence reviewed in Chapter 4 reveal a complex pattern in which the standards of evidence for each are compounded out of borrowings from the others, from earlier stages of their own development, and from the Romano-canon legal tradition.