Sarah White – Research Update (i)

My project will examine the content and form of the English ordines iudiciarii and ordines iudiciorum (procedural treatises), compare them with Continental examples and with court practice, and assess their influence on the developing Common Law in the late twelfth to early thirteenth centuries.

In the twelfth century, the ecclesiastical courts started to develop a more useable procedural system, primarily in response to the increase in appeals to the Roman curia, and Roman law provided the necessary framework. The result was a tendency to separate substantive law from procedure, allowing procedural law to be thought of as a unit. This structure could then be adopted by other courts which did not follow substantive Roman or canon law (like many of the Continental courts). However, by the time Romano-canonical procedure had developed to this point, England already had a central royal court with its own procedures. But this is not to say that Romano-canonical procedure did not influence English Common law procedure, or vice versa. The ecclesiastical courts furnished an important point of contact between England and the legal world of the Continent, and this seems to be evidenced in part in the procedural treatises produced in the late twelfth to thirteenth centuries.

This project will therefore examine the production and use of procedural treatises in England, as well as evidence for the exchange of influence between these texts and Continental treatises of the same kind. The ordines will also be compared with the two main procedural treatises from the English Common Law courts, Glanvill and Bracton, both of which make use of Roman law. Further, the impact of these treatises on practice (and that of practice on the treatises) will also be considered. Ecclesiastical case records from the thirteenth century demonstrate that procedure as outlined in the treatises was adhered to quite closely, but there seems to have been some local variation. This examination of practice will help to determine whether there was anything particularly “English” about the ordines produced in England.

As part of this project, I will produce online transcriptions of the three unpublished English ordines, “Iudicium est trinus actus trium personarum,” “Abbas cuiusdam monasterii,” and “Iudicium est actus trium personarum,” each of which survives in only one copy (the first two in Oxford BL Selden Supra 87 and the third in Oxford St John’s College 178). “Iudicium est actus trium personarum” will be the first to be added, and a discussion of this text will be part of the next update.