CRM 1301: Reading #2 Jan 22 2012
From the Lateran Councils to the Renaissance:
While the abolition of trial by ordeal was the most notable development in the 13 century criminal justice, it
was but one of many historical trends which caused the separation of English criminal procedure from that
of continental Europe.
Royal power also grew by virtue of changed methods of conducting warfare, which destroyed the military
value of feudalism. The entire complex system of feudal landholding and its supporting economic system of
feudal landholding and its supporting economic system of manorialism existed to field a combat army of
mounted knights. By the middle of the 14 century the evolution of the long bow, made armored knights
obsolete. Under feudalism, landholdings were established in self sufficient economic entities called manors.
These produced all of the food necessary to sustain the meager diets of western Europe and also provided
the necessary craftsmen and manufacturing skills needed.
Unlike feudalism, manorlism persisted well into the 17 century, but its insularity and self sufficiency were
undermined as early as 1000 A.D when a revival of trade caused a growing demand for new products.
It other words, the parties were arrayed against each other, charged with presenting evidence of crime on
one side and counteracting or disapproving the evidence of criminality on the other side. Magistrates and
triers of fact served as impartial referees of the contest, assuring that the parties followed certain rules in
presenting their proofs and ultimately deciding between them.
As we have seen in Greek criminal procedure, the impact of public opinion might be very significant in the
final outcome of a case.
Against this background, a new system of criminal procedure began to develop in the two centuries before
1215. Essentially, its origins went in the efforts of church courts to discover and stamp out heresies.
The Dominicans began inquiries into the belief of accused persons and endeavored to eliminate heresy
either by destroying the religious belief of the individual or in the alternative by keeping the suspect from
spreading the heresy to others.
Impartial referee between two contending parties.
The adversarial system utilized a trial by the accused’s peers ( or earlier a trial by ordeal), while the
inquisitorial system afforded a modicum of protection by permitting the accused an appeal to a higher court
or judge. Because the adversarial system presumed that the parties themselves should be present or the
trial could not go forward.
Truth was a matter of plausibility of mature judgment and of balancing two versions of a given event against
each other. By contrast, the inquisitorial system demanded that one truth be ascertained by assembling all
available evidence. Every effort of reason and all scientific knowledge had to be directed toward the
ascertainment of truth. As confessions became a significant part of the state’s case against those accused of crime, the methods
used to obtain confessions were refined and perfected. Torture, limited by Roman procedure to extracting
evidence from slaves, was expanded to all accused persons regardless of rank and was a