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HOEFLICH, M. H. - Regulation of Judicial Misconduct From Late Antiquity To The Early Middle Ages
HOEFLICH, M. H. - Regulation of Judicial Misconduct From Late Antiquity To The Early Middle Ages
Regulation of Judicial Misconduct from Late Antiquity to the Early Middle Ages
Author(s): M. H. Hoeflich
Source: Law and History Review, Vol. 2, No. 1 (Spring, 1984), pp. 79-104
Published by: American Society for Legal History
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M.H. Hoeflich is Assistant Professor of Law at the Universityof Illinois College of Law at
Urbana-Champaign.
Versionsof this articleweredeliveredat the 1981 Midwest MedievalConferenceheld at Ohio
State Universityon October 10, 1981 and at the Universityof Wisconsin-Milwaukeeunder
the auspices of the Legal Studies Program on February 17, 1983, and at the 1983 annual
meetingof the MedievalAcademy of America. A numberof individualshave been helpfulin
producing this article. I would like to thank Professor Michael Altschul of Case Western
Universityfor giving me the opportunityto presentthis paper at the 1981 Midwest Medieval
Conference;ProfessorsJames Brundageand Jack McGovernof the Universityof Wisconsin-
Milwaukee for sponsoring my talk at the Universityof Wisconsin-Milwaukee;Professors
Stefan Kuttner and Thomas Bisson; Dr. Sue Sheridan Walker of Northeastern Illinois
Universityand Professor Harold Bermanof the HarvardLaw School for their constant aid
and encouragement;Professor Michael E. Graham of the Universityof Illinois College of
Law for his carefulreviewof earlierdrafts;Dr. LorenzaViolini, my researchassistant,for her
tireless efforts; and Professor Richard Luman of HaverfordCollege and Professor Walter
Ullmann of Trinity College, Cambridge,for setting scholarly ideals for me to follow.
1. W.J. Whittaker, ed., The Mirror of Justices, intro. F.W. Maitland, Selden Society
Publications 7 (London, 1895).
2. Ibid. ch. 108, 106 and following.
3. Maitland'sanalysis of this section is contained in Whittaker,The Mirror, supra note 1,
xxvi-xxvii.
4. There is an extensivebody of literatureon judicial misconductin the modernperiod;see,
K.R. Corr and L. Berkson, Literatureon Judicial Misconduct (Chicago, 1977). The
problem of judicial misconduct in classical Roman law is particularlythe preserveof
Professor J.M. Kelly; see J.M. Kelly, Roman Litigation (Oxford, 1966) esp. 31-69,
102-18; J.M. Kelly, Studies in the Civil Judicatureof the Roman Republic (Oxford,
1976). Still, the basic study of medievalprocedureis M.A. von Bethmann-Hollweg,Der
Judges and others charged with dispute resolution occupy a crucial position
within any legal system because they put otherwise abstract rules into
practice.5 It is through the judicial process that one may vindicate rights and
litigate obligations. The substantive rules of law established by society's
lawmakers will be of very little import unless reduced to practice. Indeed,
absent a judicial structure, law becomes largely symbolic, as Patrick
Wormald has recently and controversially argued.6
More is needed, however, than the establishment of some type of judicial
structure. Judges themselves must not be lawless; they must follow the
substantive law they are intended to administer. This, to borrow a phrase of
H.L.A. Hart, is the 'minimum content" of any functioning legal system built
upon the role of law and not upon what has been called 'Khadi'justice,8 that
is, solely upon a judge's unbridled whim. Thus, the lawless judge, the judge
who adjudicates disputes not based upon his legal system's internal content,
but rather upon external and unacceptable standards (such as which party
has provided the largest bribe) poses a major threat to the continued
functioning of that system.
The maintenance of law and the legal system was a major preoccupation
of government in late antiquity and the early Middle Ages. Law was the
force which brought men into society and which restrained Man's baser
instincts. As Cassiodorus remarked in his Variae, 'the true mark of civilitas
9. Cassiodorus, Senator, Variae,ed. Th. Mommsen. MGH.AA XII, Ep. IV.33, (Zurich,
1970) 128-29; see Wormald, 'Lex Scripta and VerbumRegis,' supra note 6, 127.
10. On the importance of the concept of pax to ancient political thought, see G.
Zampaglione, The Idea of Peace in Antiquity, trans. R. Dunn (Notre Dame, 1973).
Disciplina was crucialto Augustinianpolitical theory;see H.X. Arquilliere,L'Augustin-
isme Politique, 2d ed. (Paris, 1972). On the notion of utilitas in secular governmental
thought,see W. Merk,Der GedankedesgemeinenBestenin derdeutschenStaats-und
Rechtsentwicklung(Darmstadt, 1968) and in ecclesiological theory, M.H. Hoeflich,
'The Concept of Utilitas Populi in EarlyEcclesiasticalLaw and Government,'Zeitschrift
der Savigny-Stiftungfur Rechtsgeschichte,Kanon. Abteilung, lxvi (1981) 36-74. See
also, on all these concepts and their relationship to early medieval concepts of
governmentalauthority,M.H. Hoeflich, 'The Speculatorin the GovernmentalTheoryof
the Early Church,' VigiliaeChristianaexxxiv (1980) 120-29.
11. Isidore of Seville, Etymologiae, ed. W.M. Lindsay (Oxford, 1971) II. 10.6 ('De Lege').
12. It remains unclear whether Isidore actually worked on the first book of the Leges
Visigothorumor whether an unknown author made use of Isidore'sEtymologiae as a
source-bookfor the Leges. Unfortunately,the otherwiseexhaustivestudy of the Legesby
Karl Zeumer, their modern editor, does not comment upon this first book on the
grounds that it is 'Inhaltlose,' devoid of content: see K. Zeumer, 'Geschichte der
westg6thischenGesetzgebungII,' Neues Archiv xxiv (1899) 44.
13. K. Zeumer, ed., Leges Visigothorum[hereafter'LV', MGH.LLI.1 (Hannover, 1973)
1.2.4.('QualisEritLex').
14. Cicero, Pro Caecinia, 71 and following.; see Kelly, Roman Litigation, supra note 4,
33-34.
15. Ibid. 43 and following.
16. The concept of gratia in Roman political,social and legal thought has been the subjectof
substantial comment; see P. Garnsey, Social Status and Legal Privilege in the Early
Empire(Oxford, 1970); R. Saller, PersonalPatronageUnderthe Early Empire
(Cambridge, 1982) esp. 23 and following, where Saller discusses the contractual and
reciprocalnatureof gratia in the Roman social context. It is also importantto recognize
that in the laterEmpire,gratia came to have significantnegativeconnotations;see J.N.L.
Myres, 'Pelagius and the End of Roman Rule in Britian,'Journal of Roman Studies 1
(1960) 21-36.
17. Kelly, Roman Litigation,supra note 4, 44 and following and esp. 48.
18. Ibid. 42.
19. Ibid. 30 and following, esp. 33-42. Venalityin judicial proceedingswas a great concern
in the laterempire,especiallyamong the earlychurch Fathers;see for instance,a passage
from Cyprian'sletter Ad Donatum, quoted by Kelly at 41:
Incisaesint licetlegesduodecimtabuliset publicoaerepraefixoiuraproscripta
sint: inter leges ipsas delinquitur,inter iurapeccatur,innocentianec illic, ubi
defenditur,reservatur.... Quis inter haec vero subveniat?patronus?sed
praevaricaturet decipit. ludex? sed sententiamvendit .... Nullus de legibusmetus
est, de quaesitore,de iudicepavor nullus:quod potest rediminon timetur.
[emphasisadded]
ignorance rather than friendship, greed, or hope of personal gain, then the
judgment shall be void, but the judge himself shall not be condemned.24
even partially true, it would have been quite sensible to absolve judges of
liability for unwillful false judgment.
An interesting sidelight on this question is provided by a constitution of
the Emperors Gratian, Valentinian and Theodosius, dated 23 August 382:
In pronouncinga decision that will be valid for the litigants,the judge must
fully reviewthe featuresof the case that were presentedin court; he shall write
his opinion and read it, lest throughsome errorof the judge the litigantsmight
again experience the fortunes of a new suit from its first beginnings.29
Underlying this constitution is the reality of late ancient judicial procedure in
which the judge may have lacked expertise but was guided by staff members
who were learned in the law.30 To prevent mistakes by the judge, the
opinion, undoubtedly shaped if not, in fact, drafted by the judge's staff, had
to be written and read.31 In the early medieval period, when the level of
expertise was perhaps lower and trained personnel less available, these
prophylactic procedures might have been insufficient, so that unwillful error
was common.32
The Ciceronian triad of improper influences upon litigation is echoed
countless times in post-Ciceronian sources, both explicitly and implicitly.
The problems of favoritism and bribery seem to have survived from the
Republican period of Rome straight through to Carolingian hegemony and
after. For instance, a constitution of the Emperors Gratian, Valentinian and
Theodosius addressed to the Praetorian Prefect Neoterius, dated 30 April
385 attests to the persistence of the problem of gratia interfering with
judicial proceedings in the later Empire.33The constitution deals with certain
technical procedural questions, principally whether a litigant bringing suit in
the wrong forum might, once suit commenced in that forum, continue, or
whether he was required to terminate his improperly sited suit and bring it
anew in the proper forum. The constitution required that the suit be brought
anew in the proper forum.34 In the latter part of the text, however, the
notionem, cum iudicatum quod displicet appellatione excluserint: ita ut, si quis
litigatorse velfastidio vel gratia cognitorisaut non auditumaut dilatumdocuerit,et
eius litis quaeprotractaest aestimationemfisconostro iudexpraestet et in primores
officiipoena deportationisilico deprometur.
35. It is interestingto note the linguisticusages contained in the interpretatioto this CTh
passage:
Quicumqueapud alium suum et non iudicemnegotium quod habueritin initio
litis credideritproponendum, exceptis aetate minoribus,quibus lege consultumest,
litis ipsius de qua agitur actione damnetur:nisi forsitan contra sententiam, quae
adversuseum dictafuerit, credideritappellandum,ut apud maiorisdignitatisiudices
audiatur. Sane si quis causam habens a iudice suo se vel per superbiamvel propter
amicitiamadversariisui probaveritnon auditum, iudicem tantum, quantum res de
qua agitur valuerit,fisco nostro iubemusexsolvere: et qui consiliis suis adhaerent,
exilii poenam pro districtionesustineant.
Gratiahas given way to amicitia, a less preciseand heavily connotative term; see text,
infra, 87 cf. LV II.1.21, supra note 24.
36. CTh, supra note 27, 1.20.1 [LRV 1.7.1]:
Honorati, qui lites habere noscuntur, his horis, quibus causarummerita velfata
penduntur, residendi cum iudice non habeantfacultatem: nec meridianishoris a
litigatoribusiudicesvideantur.Quinaitaquepondo auri tam iudiciquam eius officio
atque honoratis parem multam adscribendam esse cognoscas, si quis contra
praeceptumhuiusmodi venire temptaverit.
INTERPRETA TIO. Honoratiprovinciarum,id est ex curiaecorpore,si et ipsi in
lite sunt constituti, tempore, quo causae a iudicibus ventilantur,cum iudice non
resideant, et litigatoresmeridianishoris iudicem non salutent. Si aliud praesump-
serint, multam supra scriptae legis exsolvant,
37. See, e.g., ibid. 11.2.1 (LRV I1.2. ):
Promiscuageneralitatedecernimusneminem sibi esse iudicem debere. Cum enim
omnibus in re propria dicendi testimoniifacultatem iura submoverint, iniquum
ammodum est licentiam tirbueresententiae.
INTERPRETA TIO. Omnespraeceptionostraconstringat,ut nullusin sua causa
iudex sit, quia, sicut testimoniumunusquisquepro se dicerenon potest, ita nec pro
se poterit iudicare.
midday hours when the court was not in session on the pretext of paying
their respects to sitting judges. It seems relatively clear that there was some
fear that these midday visits could be exploited by the honorati to influence
the outcome of cases before the court.38
These constitutions were both contained not only in the Codex
Theodosianus, but also were included in the compilation made from the
CTh and promulgated for use in the Visigothic Kingdom in the sixth century
known as the Lex Romana Visigothorum or Breviarium Alaricianum.39
Furthermore, interpretationes to these constitutions were included in the
LR V to explain and to clarify them.40 These interpretationes were probably
of fifth century and Gallic origin.4' What is quite interesting here is that the
interpretatio to the constitution of A.D. 385 also speaks of the potential
causes of judicial misconduct, but replaces the terms gratia andfastidia with
amicitia adversarii and superbia, no longer legal terms of art. Although
much of the motivation and method of the LRV's compilers remains
unknown to us, it has been quite convincingly demonstrated by Jean
Gaudemet and others that compilers of the LR V discarded passages from
the CTh they judged to be obsolete or unacceptable. The preservation of
these passages on the influence of gratia in court proceedings and the
inclusion of explanatory, nontechnical interpretationes to these passages
suggests that the problems to which they addressed themselves continued
into the sixth century.
The persistence of the identification of gratia and amicitia with judicial
misconduct also is found in other legal sources of the Germanic successor
states. In the Lex Romana Burgundionum, for instance, the law code which
42. The text is to be found in a modern edition by R. de Salis, ed., Leges Burgundionum,
MGH.LL I.t. l.Pars I (Hannover, 1973) [hereafterLRB].
43. LRB, supra note 42, XLIII:
Legali sanctione constat expressum:neminem ad inludendumpulsantem et ad
deferendumiusticiampotentum quorumcumquepersonas in liteposse praetendere,
nec titulos suis adfigere,ut pulsantemaut terreataut ab actioneconpetentiexcludat.
44. Such status-contingent rules are primarily and typically found in the criminal and
delictal contexts in late antique and early medievallaw; on this, in general,cf. Garnsey,
Social Status and Legal Privilegein the Early Empire, supra note 16.
45. The concentrationon contested title to propertyis found not only in LRB XLIII, but
also in CTh II. 14.1 [LR VII. 14.1], a law of Arcadiusand Honorius,dated 27 November
400, clearly textually related to LRB, supra note 42, XLIII:
Animadvertimusplurimos iniustarumdesperationecausarumpotentium titulos
et clarissimaeprivilegia dignitatishis, a quibus in ius vocantur, opponere. Ac ne in
fraudem legum adversariorumqueterroremhis nominibus abutanturet titulis, qui
huiusmodi dolo scientesconivent, adficiendisuntpublicae sententiaenota. Quodsi
nullum in hac parte consensum praebuerint,ut libelli aut tituli eorum nominibus
aedibusadfiganturalienis, eatenusin eos quofecerint vindicetur,ut adfectiplumbo
perpetuismetallorumsuppliciisdeputentur.Quisquisigiturlitepulsatus, cum ipse et
rei sit possessor et iuris et titulum inlatae sollemniterpulsationis exceperit, contra-
dictoriis libellis aut titulis alterius nomen credideritinserendum,eius possessionis
aut causae, quam sub hac fraude aut retinere aut evitare tempaverit, amissione
multeturnec repetendaeactionis, etiamsi ei probabilis negotii meritasuffragantur,
habeatfacultatem. Eos sane, qui se sponte alienis litibus inseripatiuntur, cum his
neque proprietas neque possessio conpetat, velutifamae suae prodigos et calum-
niarum redemptoresnotari oportebit.
46. Note especially,the general languageof the interpretatioto this passage, supra note 45:
Cognovimus multos causas suas per potentium personas excusare vei prosequi,
ita ut libellos vel tituloseeorum nominibus, qui dignitatepraeclarisunt, quofacilius
terreantpossessores, in his domibus quae ab eis repetuntur,adfigant, aut certe, si
aliquid repetatur, nomine magnorum et clarissimorumvirorum prolatis libellis
contradictoriisse specialiterexcusare. Quod si ex eorum voluntatefactum fuerit,
quorum nomina libelli testantur,publice debet dignitas eorum pro omni vilitate
notari. Illi vero, qui causas suas talifraude agerepraesumpserint,plumbatiscaesi in
metallum damnatiperdurent. Unde quicumque conzentus de re, in qua dominus
esse dinoscitur, si alterius nomine se voluerit defensareaut alium alterius nomine
There are other late antique and early medieval instances in which
favoritism was perceived as a major impediment to properly conducted
court proceedings. That so much evidence exists from late antiquity and the
early Middle Ages suggests that the problem in practice was a serious one.
The problem of gratia in judicial proceedings should be placed within its
broader context. Favoritism should not be seen simply as a personal matter,
separate from social structures. Rather, favoritism in the early medieval
period functioned as part of a reciprocal social relationship between
individuals of differing wealth, power and status. It must be viewed as part
of a post-classical patronus-cliens institution, one which may be seen as
proto-feudal. Certainly, within the Roman context, part of the responsibili-
ties of a patronus to his clientes was to provide protection at law.
Undeniably, this continued to be viewed as part of the early. medieval
patron-client, proto-feudal relationship.51 What is equally clear, however, is
that such man-to-man relationships militate against the growth of central
governmental direct authority and any attempt by a central, royal
government to impose a judicial system free from favoritism. Two points
about this are of interest. First, it is noticeable that such a neutral
application of the law was seen to be desirable. The notion of legal neutrality
is quite 'modern' in concept. Second, it seems relatively clear that problems
caused by favoritism could only be conquered by development of an
effective royal administrative corps, whose loyalities lay solely with the king
and central authority, and who could not be manipulated by potentiores.52
patrocinio aut amicitia nolens legibus obtemperare,et ipse, quo petit, hoc testibus
potuerit adprobare: det ille iudex ei, quem audire noluit, pro fatigationem eius
tantum, quantum ipse ab adversario suo secundum legalem iudicium fuerat
accepturus,et ipsam causam ille, quipetit, usque ad tempuslegibusconstitutumita
habeat reservatam, ut, cum earn proponere voluerit, debitam sibi percipiat
veritatem. Certesifraudem aut dilationem iudicis non potuerit petitor adprobare,
sacramentosuam iudex conscientiamexpiet, quod eum nullo malignitatisobtentu
vel quolibet favore aut amicitia audire distulerit, et propter hoc culpabilis idem
iudex nullatenushabeatur. Eidem tamen iudici liceat, ut in una ebdomada duobus
diebus vel omnibus meridianis horis, si voluerit, absque causarum audientia sue
vacet domui pro quiete. Reliquo vero tempore prolata sibi negotia frequens et
absque dilatione qualibet examinet.
In translatingpassagesfrom the LVin these notes, I have consulted, but not reliedupon,
the translationmade by S.P. Scott; see S.P. Scott, trans., The VisigothicCode (Boston,
1910). It should be noted that this translationis extremelyunreliablein partsand should
be used only with extreme caution.
51. I hope to returnto the natureof this transitionalstate in the developmentof socio-legal
relationsin the early Middle Ages in a later article.
52. In this context however, it is interestingto note LV, supra note 13, 11.1.29:
Nonnumquam gravedo potestatis depravaresolet iustitiam actionis, que, dum
sepe valet, certo est, quod semper nocet; quia, dum frequenter vigore ponderis
iustitiampremit, numquam in statu sue rectitudinishanc redirepermittit. Ideoque,
quia sepeprincipummetu vel iussusolent iudicesinterdumiustitie,interdumlegibus
contraria iudicare,propter hoc tranquillitatisnostre uno medicamineconcedimus
duo mala sanare, decernentes,ut, cum repertumfuerit, qualemcumquescripture
contractumseu quodcumqueiudiciumnon iustitiavel debitis legibus,sed iussu aut
decisions, and the crime has been proved, let him be punished capitally as an
example to all. .. .58
This is an especially significant passage, for the imposition of a penalty even
when judgment was correctly given but for the wrong reasons suggests that
the law's primary purpose was not necessarily to do justice as to any single
litigant, but rather to deter judges from improper conduct on the bench.
The Leges Visigothorum also contain admonitions against judicial
bribery,59 as does the eighth century text of the Lex Baiuariorum:
If a judge decides wrongly after accepting a bribe, let the opponent who
took something wrongly through the judge's decision make restitution.
Further, let the judge who judges falsely pay twofold compensation to him
who has suffered a loss, since he has attempted to judge against our laws, and
let him also be compelled to pay forty solidi to our fisc.60
The Franks, apparently, were equally plagued by the problem of judicial
corruption. Charlemagne exhorted against such corruption with some
frequency and finally imposed penalties in the event a judge takes a bribe.61
In the Admonitio Generalis of A.D. 789, he admonishes those to whom the
power of judging has been given to 'judge justly,' 'iuste iudicate,' and not to
allow their decisions to be perverted by receiving gifts.62 In the Capitulare de
Partibus Saxonicae, he again warns his officials against taking bribes to the
prejudice of the innocent and warns them that if they do so they themselves
shall suffer, even, in the case of the count, to the loss of royal office.63
The second question is what type of judicial action taken under improper
influence was considered misconduct. To answer this question, it is
necessary first to recognize that the judicial function varied chronologically
and geographically in different Germanic kingdoms in the early Middle
Ages, and was often not comparable to modern conceptions of the judicial
function.64 In certain kingdoms, judges seemed to have been charged
primarily with powers of execution of judgment; the actual trial consisted of
oath-taking as to a defendant's reputation or the undergoing of ordeals with
no presentation of evidence or decision of facts or legal issues.65 In other
instances, for example in the Visigothic kingdom, judicial officials may well
have sat as triers of fact and law, especially in those cases that turned upon
the submission of documentary evidence.66 Nevertheless, regardless of the
et subvertuntverba iustorum' non in adolatione, nec in considerationepersonae,
sicut in deuteronomio dictum est: 'quod iustum est iudicate;sive civis sit ille sive
peregrinus, nulla sit distantiapersonarum, quia Dei iudicium est' Primo namque
iudicio diligenter discenda est lex a sapientibus populo conposita, ne per
ignorantiama via veritatiserret. Et dum ille rectum intellegatiudicium, caveat ne
declinet, aut per adolationem aliquorum aut per amorem cuiuslibetamici aut per
timorem alicuius potentis aut propter praemium a recto iudicio declinet; et
honestum nobis videtur, ut iudices ieiuni causas audiant et discernant.
The scripturalquotation is Zachariah 8.16. It is also interestingto note the focus on
properjudicial proceedingstypicalof the so-called ProgrammaticCapitularyof 802; the
CapitulareMissorum Generale,edited by Boretius,supra, 91 and following; see also the
Capitularede Iustitiis Faciendis A.D. 811-813, edited by Boretius, 176-77. On the
significanceof ProgrammaticCapitularyand the organizationof the Carolingiansystem
of justice, see F.L. Ganshof, 'Charlemagne'sProgrammeof ImperialGovernment,'inJ.
Sondheimer,trans., The Carolingiansand the FrankishMonarchy(Ithaca, 1971) 55-85
and 'The Impactof Charlemagneon FrankishInstitutions,'inibid. 143-61, esp. 151 and
following.
63. Boretius, CapitulariaRegum Francorum,supra note 62, 70, cap. 28:
De praemiis et muneribus:ut munera super innocente nullus accipiat;et si quis
hoc facere praesumpserit,nostrum bannum solvat. Et si, quod absit, forte comis
hoc fecerit, honorem suum perdat.
Schmitt-Weigand,Rechtspflegedelikte,supra note 4, 55, argues that the Capitularede
Partibus Saxonicae is not typical of Charlemagne'slaws and that this provision is
unusually harsh and reflects Charlemagne'sspecial dislike of the Bavarians(and their
Duke Tassilo).
64. See Bethmann-Hollweg, Civilprozess, supra note 4. Also still valuable is Fustel de
Coulanges, La Monarchie Franque v in his Histoire des Institutions Politiques de
I'Ancienne France, 5th ed. (Paris, 1888) 304-506. See also J. Goebel, Felony and
Misdemeanor (Philadelphia, 1976). On the Visigoths, see above all, King, Law and
Society in the VisigothicKingdom, supra note 48, 79 and following. On the Lombards,
see now C. Wickham, Early Medieval Italy (London, 1981) 115 and following.
65. On the ordeal process in the Middle Ages, see now, P.R. Hyams, 'Trialby Ordeal:The
Key to Proof in the EarlyCommon Law,' in Arnold, Green, Scully and White, eds., On
the Laws and Customs of England:Essaysin Honor of Samuel E. Thorne(Chapel Hill,
1981) 90.
66. See King, Law and Society in the VisigothicKingdom, supra note 48.
or it could simply take the form of ignoring existing substantive law and
deciding arbitrarilyper arbitrium, non per legem.7i Such abuse is reflected in
countless early medieval texts. Many of the prohibitions against bribery and
gratia focus upon these 'lawless' decisions.72 There is special concern evinced
in several early medieval legal codes about judicial misconduct in criminal
cases where an undeserving litigant might be put to death because of
improper influences in the court proceedings.73 The Edictum Theoderici
Regis begins its substantive law sections with the following:
As we have previouslyestablished,if a judge accepts a bribeand condemns
an innocent man to death against our laws and regulations;let him [thejudge]
be sentenced to death [as well].74
[T]hat judges should judge justly according to the written law, not
according to their own inclination (arbitriumsuum).75
81. MacCormack,'ludex Qui Litem Suam Fecit,' supra note 21, 150-51.
82. Unfortunately, we have almost no contemporary evidence for the use of the actio,
although some rathergeneraljuristic commentarysurvives;see supra note 5.
83. See supra note 22.
84. ETR, supra note 54, cap. 1, 15.
85. ETR, supra note 54, cap. II.
86. E. Levy, WestromischesVulgarrecht.Das Obligationenrecht.Forschungenzum romi-
schen Recht (Weimar, 1956) 36 and following. On later Visigothicdevelopmentsin the
calculation of penalties for theft, see the discussion of King, Law and Society in the
VisigothicKingdom, supra note 48, 251-58. See also for his comments onfurtum and
judicial corruption (a severely limited view). Schmitt-Weigand, Rechtspflegedelikte,
supra note 4, 37-38.
87. See for instance, ETR, supra note 54, cap. III:
ludex quod immeritoprovincialibusrapuerit,amissa dignitatequa male usus est,
in quadruplum reddat his duntaxat, quibus immerito constat ablatum: et si
defunctusfuerit, ab eius heredibushaec poena poscatur.
88. L. Lang.IV.28.10:
Si quis causamhabuerit,et sculdaisaut iudexei secundumEdictitenoremper
legemiudicaverit,et ipsestarein eodemiudiciominimevoluerit,componatillis,qui
iudicavit,sold.xx. Namde ea causa,quaeper arbitrium et ipsesibi
iudicatafuerit,
noncrediderit legemiudicasse,et ad Regemclamavit,nonsit culpabilis.Etsi iudex
contralegemiudicaverit, componatsolidosxl mediumregi,et mediumcuiuscausa
fuerit. ..
Another translation of this passage is found in K.F. Drew, The Lombard Laws
(Philadelphia, 1973) 159, which I have consulted.
89. See, esp., Wormald, 'Lex Scripta and Verbum Regis,' supra note 6, 105-38 and W.
andPoliticsin theMiddleAges(London,1961)117
of Government
Ullmann,Principles
and following.
tually similar. The miscreant judge, conceptually, abuses the legal process in
a manner parallel to the way in which the contumacious litigant abuses the
legal process. Both are behaving 'lawlessly.' Both acts are deemed harmful to
specific parties and, therefore, composition must be paid in each case.
This passage is also quite interesting because of the form of payment it
requires the miscreant judge to make. He must pay, as composition, twenty
solidi to the wronged litigant and twenty solidi to the king. First, it is
noteworthy that the amount paid by a judge for his abuse of process to the
litigant, i.e., twenty solidi, is precisely the same amount paid by the litigant
for his abuse of process to the judge. This suggests a contemporary
perception that the two forms of misconduct are similar, only the individuals
harmed are different. Second, it is of interest that the judge's fine must be
paid half to the aggrieved litigant and half to the king. This, too, suggests
several points. First, it suggests that judicial abuse of process, i.e.,
misconduct, harms not simply the wronged litigant but also the king. This
perception is entirely understandable. In the early Middle Ages, the king was
responsible as part of his royal duties for creating, correcting and
maintaining the law.90 The high point of this ideology is reached in Francia
in chapter nine of Charlemagne's Programmatic Capitulary of A.D.
802. Here, in describing the heightened concept of fidelitas that he was
trying to inculcate in his subjects, the notion of proper judicial conduct is
central.91 Under the influence of Charlemagne, the Frankish concept of
fidelitas was broadened to include the notion that a faithful royal subject,
especially a missus, would refrain from unjustly upholding a guilty party in
a court case thereby perverting the whole judicial process and the ends of
justice:
[I]n every case it shall be done in accordancewith justice and the law; and
... no one shall have the powerto impedejustice by a gift, reward,or any kind
of evil flattery or from any hindranceof relationship.92
The language of this passage makes it clear that Charlemagne considered the
giving and the receipt of a judicial bribe to be acts of infidelitas.
The imposition of a bifurcate penalty in the passage from Liutprand's
laws not only testifies to the heightened ideology of royal involvement in the
judicial system's maintenance reached during the period of Carolingian
hegemony, but the penalty also hearkens to the notion of private attorney-
generalship, to use the modern phrase, of the old Roman actio popularis.93
This rather peculiar Roman action could be brought by any citizen wronged
by, or a witness to, certain types of conduct that were deemed to be tinged
with the public interest.94 For instance, an actio popularis would lie against
anyone who desecrated a gravesite or against an individual who threw slops
onto the street from an upper story window.95 The notion of bifurcate
damages was an integral part of this action. A portion of any damages
recovered generally would go to the prosecutor of the action; the remaining
damages would go to the state treasury.96 The justification for such a
bifurcate monetary scheme is twofold: first, both the state and the individual
citizen were considered harmed by the defendant's misconduct because harm
was done to the 'public.' Second, by permitting an individual to prosecute
the action and receive damages therefore, enforcement of the substantive
provisions was increased, and, as a result, its deterrence effect. Much the
same conceptual framework and the same purposes apparently were at work
in the Liutprandic law quoted above.
Again, other early medieval examples of penalties for misconduct not
principally compensatory in nature might be cited. For instance, in texts of
the Lex Salica, beginning with the C Text, which is generally dated from the
Merovingian King Guntram's reign (ca. A.D. 567-593),97 specific compen-
sation amounts not related to harm done must be paid by miscreant
rachinburgii who judge 'non secundum legem.'98 Charlemagne, as already
92. See C. Fadda, Azione Popolare (1894); W.W. Buckland, Text-Book of Roman Law,
(Cambridge, 1966) 694-95. The Roman actio popularis was, apparently,similarto the
early Englishwrit Qui Tam;cf. Schmitt-Weigand,Rechtspflegedelikte,supra note 4, 107
on the notion that judicial misconduct constituted an offense against society. Actions
derivedfrom the actio popularis continue to be used in certaincivil law countriestoday,
e.g. Brazil,cf. H. Meirelles,Mandadode Segurancae Acao Popular, 3d ed. (Sao Paulo,
1975) 63 and following.
93. The theory of the actio popularis, i.e., that a wrong covered by the actio injuredall
membersof society, so that proof of a specificwrongdone by a particularindividualwas
unnecessary, unlike the case of certain modern private-attorneygeneralship actions,
where proof of damage to the litigantis required.
94. D.47.12.3 pr.; D.9.3.5.5.
95. See Buckland, Text-Book of Roman Law, supra note 92, 695.
96. See supra note 69.
97. L. Sal., supra note 69, 57.3; cf. F. Beyerleand R. Buchner,eds., Lex Ribuaria[hereafter
'L. Rib.'] (Hannover, 1965) cap. 56(55) ('De rachinburgiislegem dicentibus).
98. See supra note 63.
of the classical Roman actio in iudicem qui litem suamfacit was necessitated
by the absence of any true appellate structure.'04 In most early medieval
kingdoms, there existed a theoretical right of appeal and reversal before the
king, at least in instances of judicial misconduct.'05 Thus, compensation
might be obtained through this mechanism. The imposition of judicial
liability during this period, therefore, unlike during the classical Roman
period, could focus on deterrence.
It is ideologically significant that in spite of a right of appeal that was, at
least in theory, often available, early medieval legislation continued to
embody a notion of judicial liability for misconduct and improper influence,
and that such liability was often triggered by the aggrieved litigant on
collateral attack. Despite recent commentators' opinions to the contrary, the
retention of a system of judicial liability for improper judgment alongside an
appellate judicial structure is jurisprudentially sound.106 An appellate
structure ensures that justice will be achieved in the individual case. The
litigant who should triumph will do so; his opponent will suffer defeat.
Nevertheless, an appellate structure does not itself effectively deter judicial
misbehavior.'07 Although justice may be done in the individual case,
systemic purity will not be achieved. Imposing liability upon misbehaving
judges, on the other hand, if it is not keyed to potential damages of a litigant
will not, in and of itself, ensure that the litigant's injury is vindicated, because
the litigant may not be fully compensated for his loss. This can be
ameliorated by keying the penalty imposed to the damage done. Even this is
not completely adequate, however, for it leaves the party opponent either
free of liability or with an undeserved windfall. Nevertheless, imposition of
judicial liability does provide a deterrent factor, and the heavier the liability,
presumably, the greater the deterrence. The use of both mechanisms
together ensures that justice is done in the individual case, suum cuique, in
that he who ought to gain gains and he ought to lose loses, and also ensures
that a systemic deterrent exists to judicial misconduct and the introduction
of extraneous and improper influences into the judicial process.
One may suggest that the early medieval preoccupation with law coupled
with the notion that maintenance of the judicial system was a royal duty
made it perfectly sensible to retain a system of judicial liability in the law
codes. Indeed, a complicating factor that tended to emphasize the need for
such judicial liability was the common medieval notion that iustitia, justice,
was a gift of God, and that a perverter of justice was acting contrary to
God's will.108Thus, the Lex Burgundionum states that it is through the love
of justice that God is pleased and earthly kingdoms acquired (and,
presumably, it is through the want thereof that they are lost).109 In an edict
of the Merovingian King Guntram, judges are admonished to do justice, for
that pleases God.10 And in Charlemagne's Capitulare Aquisgranense of
A.D. 789, the duty to judge justly is ascribed to scriptural injunction, and
the judicial function is described in Christo-mimetic terms. 11 Thus, deviation
from the proper course in judging was a very serious matter with religious
overtones, and deterrence was a major concern.
Although deterrence was, in fact, a significant motivation behind the law
imposing liability on miscreant judges, early medieval legislators realized
that judges needed safeguards from frivolous legal attacks. As noted, some
safeguards were inherent in the fact that liability generally was imposed for
only the most manifestly improper acts. More specific safeguards are
provided by several of the early medieval codes.
Perhaps the most important safeguard for the judge accused of improper
conduct on the bench was the requirement, contained in several early
medieval laws, that to prove his case, the aggrieved litigant had to produce
witnesses. 112 Further, these same codes often provided that a judge could
escape liability through oathtaking. The Leges Visigothorum provide that if
a litigant cannot prove by witnesses that he has been the victim of improper
judicial conduct, the judge may take an oath that he has not acted from
malice, nor favor, nor friendship, and by so doing, may free himself of all
liability. The requirement that an aggrieved litigant prove his case by
witnesses probably would have ensured that only manifestly corrupt
judgments triggered liability, absent widespread collusion.
In sum, one may come to some conclusions about the early medieval
attitude toward judicial misconduct, its causes and its cures. First, the
persistence of certain types of improper influence from classical Roman
108. See supra note 57.
109. Boretius, ed., CapitulariaRegum Francorum,supra note 62, 12 (10 November 585):
Cuncti itaque iudices iusta, sicut Deo placet, studeant dare iudicia . . .
See, also K. Lehmannand K.A. Eckhardt,eds., LegesAlamannorum.MGH.LLI.T.V.,
Pars. I, 100 ?41.1 (Codex B):
Nullus causasaudirepraesumat,nisi qui a duceper conventionempopuli iudex
constitutusest, ut causas iudicet, qui nec mentiosusnec peruratornec munerum
acceptor sit, sed causas secundum legem veraciter iudicet sine acceptione
personarum et timens Deum sit. Et si iuste iudicaverit, credat se apud Deum
mercedemrecipereet laudem apud homines bonam possidere.
110. Boretius, CapitulariaRegum Francorum,supra cap. 63.
111. See, for instance, LV, supra note 13, II.1.20; a similar process probably existed in
Burgundy,Saxony, and West Francia.
112. See, for instance, ibid. 11.1.20 and 11.1.21.