HOEFLICH, M. H. - Regulation of Judicial Misconduct From Late Antiquity To The Early Middle Ages

American Society for Legal History
The Board of Trustees of the University of Illinois
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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Regulationof JudicialMisconductfrom Late
Antiquityto the Early Middle Ages
M.H. Hoeflich
In a well-known chapter in the book known as the Mirror of Justices, the

anonymous author recounts King Alfred's drastic solution to the problem of
misbehaving judges:
It is an abuse thatjustices and their officerswho slay folk by falsejudgments
are not destroyed like other homicides. And King Alfred in one year had
forty-fourjudges hanged as homicides for their false judgments.2
Unfortunately, as Maitland has conclusively demonstrated, we cannot rely
on this passage as historical evidence of Alfred's reign.3 Nevertheless, the
passage illustrates both a problem and a solution common in the Roman
and medieval periods. The problem was judicial misconduct and corruption.
The solution was to impose personal liability upon miscreant judges for their
behavior.
Judicial misconduct has been perceived since Roman times as a serious
problem that can severely damage the proper functioning of a legal system.4
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

80 Law and History Review
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
Civilprozess des gemeinen Rechts in geschichtlicher Entwicklung, iv, pt. 1. Der

germanisch-romanischeCivilprozess in M.A. vom funften bis achten Jahrhundert
(Bonn, 1868). The most complete modernstudy of the problemof judicial misconductin
the early Middle Ages is A. Schmitt-Weigand,Rechtspflegedeliktein der Frankischen
Zeit. MunsterischeBeitragezur Rechts-undStaats Wissenschaft.Heft 7 (Berlin, 1962);
see also, M. Fuhrmann, 'Philologische Bemerkungenzu Theodulphs Paraenesis ad
iudices,' in K. Luig and D. Liebs, eds., Das Profil des Juristen in der europaischen
Tradition(Ebelsbach, 1980); G. Monod, 'Les Moeursjudicairesau VllIe siecle d'apres
La Paraenesisad Judices de Theodulf,'Revue Historiquexxxv (1887) 1-20.
5. The centrality of judicial office to the proper functioning of a legal system is a concept
that runs through Westernlegal literature.This obsession with judicial conduct is, in
many ways, best illustratedby the late ancientand medievalsourcesdiscussedhere, but it
is also found even in modernjurisprudentialwritingsas well as in modernpractice;see,
for instance, H.L.A. Hart, The Concept of Law (Oxford, 1961), wherein Hart argues
that even if the majorityof participantsin a legal system do not take a nondescriptive,
normative attitude in regard to legal rules, the normativity and validity of that rule
system can still be preservedif law officersandjudges possess such a perspective.On the
problem of judicial office and judicial disinterestednessin modern law, see M.H.
Hoeflichand J.G. Deutsch, 'JudicialLegitimacyand the DisinterestedJudge,' 6 Hofstra
Law Review 749-54 (1978).
6. P. Wormald,'Lex Scriptaand VerbumRegis: Legislationand GermanicKingshipfrom
Euricto Cnut,' in P.H. Sawyer and I.N. Wood, eds., Early Medieval Kingship(Leeds,
1977) 105-38. Another recent article on the same subject but giving a more balanced
view is H. Nehlsen, 'Aktualitat und Effektivitatder altesten germanischenRechtsauf-
zeichnungen,' in P. Classen, ed., Recht und Schrift im Mittelalter, Vortrage und
ForschungenBd. xxiii (Sigmaringen, 1977) 449-502.
7. See Hart, The Concept of Law, supra note 5.
8. A.A. Leff, 'Law And,' 87 Yale Law Journal 989ff. (1978).

Regulation of Judicial Misconduct 81
is the observance of law; it is this . . . which separates men from beasts.'9

Law provided for Man in society those attributes most necessary for living.
Law brought about pax, disciplina and the utilitas populi.'0 Through the
workings of God's law, as revealed to Man, and Man's law, promulgated by
those placed in authority, society was able to function. As Isidore of Seville
wrote in his Etymologies," in a passage echoed in the first book of the Leges
Visigothorum:'2
How ought law to be? Law should be honest, just, possible, in accord with
natureand custom, suitableto the times and the place, necessary,useful, clear,
lest anything be lost in obscurity, not for privatebenefit, but dedicatedto the
commonweal.13
These Isidoran statements echo Cicero, Charlemagne and countless others
during this period. Law was crucial to life. Law-abiding judges were crucial
to the maintenance of law. Consequently, there exists a jurisprudential
strand concerned with judicial misconduct and judicial liability that runs
throughout the sources from later antiquity to the early Middle Ages, a
strand which will be explored herein. This exploration will be carried out by
posing a series of questions and attempting to provide answers from extant
sources. First, what was considered an improper influence on litigation?
Second, what types of conduct were deemed improper? Third, what liability
was imposed for such misconduct?
The first question to consider is what types of influence were considered
improper and could trigger judicial liability? The traditional triad of
influences deemed improper in judicial proceedings during late antiquity
and the early Middle Ages can be traced to a source at least as early as
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').

Cicero's writings. Cicero remarked that the three causes of judicial

impropriety were gratia, potentia and pecunia. 14Gratia is manifestly both a
social and a political term; it is the favor one can expect from another.15 In
the Roman context, it may bespeak social friendship or, more often, a quid
pro quo relationship and a continuing alliance.'6 Gratia may take the form
of money when money is needed, votes delivered in the Assembly or Senate
when these are needed, or a judicial pronouncement when it is needed.
Gratia in the judicial context is best understood as a relationship between
judge and litigant or the litigant's patron, where the judge wants to, or
knows that he must, 'deliver' the verdict in order to maintain an alliance.17
Potentia refers not just to power, but, as Kelly has demonstrated, to
coercion, or oppression.18 Potentia in the context of improper influences in
litigation may be aimed at the judge, placing him in fear of the consequences
of rendering proper judgment, or it may be targeted against a litigant who is
cowed into not prosecuting his rights to their fullest before a judge. Pecunia
is the simplest concept. It refers to outright bribery, to the judge who takes
payment from a litigant for rendering a particularjudgment or for otherwise
affecting the outcome of the trial.'9
There is one perceived cause of unfair judgment throughout late antiquity
and the early Middle Ages that falls outside the scope of the Ciceronian
triad. This is the problem of judicial imprudentia or ignorantia. Should a
judge who renders an improper or incorrect verdict not because of bribery or
favoritism, but due to his own negligence or ignorance suffer the same sort
of penalties that would be imposed for the Ciceronian triad of sins?
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]

Whether or not liability existed for ignorantia or imprudentia during the

classical period of Roman law is an unresolved question.20 The controversy
stems from the many unanswered questions about the actio in iudicem qui
litem suamfacit, the collateral action in which an aggrieved litigant sued a
miscreant judge for false judgment.2' A definition of this action in the
Fourth Book of Justinian's Institutes explicitly includes liability for judicial
imprudentia.22 However, it is unclear to what extent this passage represents
earlier, classical Roman law rather than a sixth-century Byzantine interpola-
tion. If the description of the action does not, in fact, represent classical
Roman juristic thought or practice but simply illustrates a later Byzantine
aberration,23 then liability for imprudentia or ignorantia may never have
become part of the Western Roman tradition. Unfortunately, our knowledge
of the scope of this action is severely limited; we know, with certainty, of no
instance of its use. Moreover, there remains no detailed juristic discussion of
the action from the classical or the post-classical periods that can resolve this
issue. Even if there were liability in both classical Roman and Byzantine law
for judicial imprudentia or ignorantia, it seems likely that such liability was,
infrequently, if ever, imposed during the early medieval period in the West.
For instance, the following statement found in Leges Visigothorum II. 1.21,
shows this:
If, however, he [the judge] shall have given an unjust judgment through
20. See Kelly, Roman Litigation,supra note 4, 10 and following.

21. This actio was classified as a quasi-delict in Roman law, that odd category of actions
(four in all) which were neitherdelict nor contractactions, but somethingin between. On
the actio in iudicem qui litem suam fecit; see D. Stojvevic, 'Sur le caracteredes quasi-
delits en droit romain,' IURA viii (1957) 57-74; D.N. MacCormack,'Iudex Qui Litem
Suam Fecit,'Acta Juridica 1977 (1979) 149 and following; D. Pugsley, 'Litem Suam
Facere,' The Irish Jurist iv (1969) 351-55; P. Stein, 'The Nature of Quasi-Delictal
des Droitsde l'Antiquitev (1958)
Obligationsin RomanLaw,'RevueInternationales
564, and P.B.H. Birks, 'The Problem of Quasi-Delict,' CurrentLegal Problems (1969)
164-80; generally, see M. Kaser, Das romische Privatrechtii (Munich, 1975) 428 and
following.
22. Justinian, Institutiones,ed. J.A.C. Thomas (Amsterdam, 1975) IV. 5:
Si iudexlitemsuamfecerit,nonproprieex maleficioobligatusvidetur.Sedquia
nequeex contractuobligatusest et utiquepeccassealiquidintelligitur,licet per
imprudentiam: ideo videturquasi ex maleficioteneri,et in quantumde ea re
aequumreligioniiudicantisvidebitur,poenamsustinebit.[emphasisadded]
23. The difficulty arises from the seeming contradictionof Justinian, Institutes, supra note
22, IV.5 and Th. Mommsen, ed., Digesta [hereafter'D'] (Hannover, 1973) 5.1.15.1:
Iudex tunc litem suamfacere intelligitur,cum dolo malo in fraudem legis
sententiamdixerit(dolomaloautemvideturhocfacere,si evidensarguatureiusvel
gratiavelinimicitiaveletiamsordes),ut veramaestmationem
litispraestarecogatur.
This passage from Ulpian's Twenty-First Book on the Edict suggests that judicial
negligencewould not be sufficientgrounds for the actio to lie. It is interestingto note,
also, that in the Institutes of Theophilus Antecessor, the seventh-century Greek
paraphraseand translationof Justinian'sInstitutes,the negligencestandardwas retained,
attesting further to its acceptance in Byzantine law; see Theophilus Antecessor,
Institutiones,2d ed., ed. C. Fabrot (1657) IV. 5, 597-98.

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
Similarly, in the Lex Baiuariorum II. 18 is found:

If, however, the judge judges unjustly, neitherthrough favor nor through
greed, but rather from ignorance, let the judgment in which he is known to
have erred have no effect, but let the judge be not held to blame.25
It is certainly not difficult to understand why early medieval kings and
legislators would not impose delictal or penal liability upon judges for
misjudgments attributable to ignorance or imprudentia. Legal knowledge
during this period was not widespread, and it is relatively clear from what we
know of the barbarian kingdoms' governmental structures that many
officials exercising judicial functions did so without benefit of significant
training or expertise in the law.26 Indeed, it has been suggested, for the late
antique period by Ramsay Macmullen27 and for the early medieval period
by Patrick Wormald,28 that in all likelihood many laws included in written
compilations were not fully understood by litigants or judges. If this was
24. LV, supra note 13, II. 1.21:

Sin autemper ignorantiaminiusteiudicaveritet sacramentisse potuerit excusare,
quod non per amicitiamvel cupiditateautper commodumquolibet,sed tantumdem
ignoranter hoc fecerit: quod iudicabit non valeat, et ipse iudex non inpliceturin
culpa.
Schmitt-Weigandtakes a different position on this point; he believes that generally,
duringthe early medievalperiod,there wasjudicialliabilityfor imprudentia;see Schmitt-
Weigand, Rechtspflegedelikte,supra note 4, 32-33, but cf. 73 n. 534 citing contrary
evidence from cap. 10 of the Fragmenta Gaudenziana,cited by Zeumerto LV 1II.1.21,
supra note 13, in his edition at 69 n. 1.
25. E. von Schwind, ed., Lex Baivariorum[hereafter'L.Baiv.'] (Hannover, 1926) MGH
LL.I.5.2:
Si vero nec per gratiam, nec per cupiditatem,sed per erroreminiuste iudicaverit,
iudicium ipsius, in quo errassecognoscitur,non habeatfirmitatem;iudex vero non
vocetur ad culpam. [orthographyhas been altered:judex iudex]
The translation in the text is drawn from that of Th.J. Rivers, trans., Laws of the
Alamans and Bavarians(Philadelphia, 1977) 129 [II. 1.18]. Rivers'stranslationis based
upon the edition of K. Beyerle, ed., Lex Baivariorum:Lichtdruck Wiedergabeder
Ingolstadter Handschriftdes bayerischen Volksrechts(Munich, 1926) rather than on
that of von Schwind. On this passage, see also Schmitt-Weigand,Rechtspflegedelikte,
supra note 4, 83.
26. See P. Riche, Educationet Culturedans I'OccidentBarbare VIe - VIIe siecles (Paris,
1962) 229ff and 316ff. It should be noted that Rich&concludes that there was a larger
literatepopulation in the southernareas of Gallia than in the northernareas.
27. R. MacMullen, 'Roman Bureaucratese,'Traditio(1962) 134 and following; see also the
statement of EmperorValentinianIII in 451 about Italy in CTh Nov. ValXXXII.6: 'Et
causidicos et iudices defuisse hodieque gnaros iuris et legum aut raro aut minime
repperiri.'Th. Mommsen, ed., Codex Theodosianus,[hereafter'CTh'](Dublin/Zurich,
1970).
28. See supra note 6.

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
29. CTh, supra note 27, IV. 17.

30. During the laterempire, magistratesandjudicial officials,many of whom might well lack
adequate legal trainingor other relevantexpertise, were given assessores,legally trained
clerks to assist them. Such assessores were civil servants and paid by the central
authority; see, Hitzig, Die Assessoren der romischen Magistrate(Munich, 1893) and
A.H.M. Jones, The Later Roman Empire, 284-602, 2 vols. (Oxford, 1973) ii, 501-3.
The use of trainedadvisersto lay magistratescontinuesin many legal systemsto this day;
see for example, D. Barnard,The CriminalCourtin Action (London, 1979) 122-23 (on
clerks to English magistrates);see for applicable Roman law: D.I.22 and C.J. 1.51.
31. It is importantto note, however, that the advice of an assessor, in Roman Law, was not
binding upon the magistrateor judge; A. Berger, Encyclopedic Dictionary of Roman
Law (Philadelphia, 1953) s.v. 'adsessor.'
32. It is interestingto note that the CTh passages on assessors were retained in the Lex
Romana Visigothorumand in later Gallicabridgmentsthereof;see G. Haenel, ed., Lex
Romana Visigothorum[hereafter'LRV'] (Aalen, 1962) 1.11.
33. CTh, supra note 27, 11.1.6 [LRVII.1.6].
34. The constitution reads:
Exceptis his, quibus extra ordinem subvenitur, omnes iacturam litis incurrant,
qui non ante in proprioforo iurgaverint,siquidempossint veniread altioris iudicis

question is raised whether a litigant is entitled to redress if, in the initial

forum, his case either was refused improperly or was delayed to his
prejudice. The stated reasons for the occurrence of such treatment are the
gratia of the judge for the litigant's party-opponent or, perhaps, the judge's
fastidia, his arrogance toward the aggrieved litigant.35
Fear of undue influence arising from the existence of gratia may also
underlie the somewhat unusual rules of procedure set forth in a constitution
of the Emperors Arcadius, Honorius and Theodosius, dated 3 February
408.36 This constitution provided that provincial honorati, those individuals
presumably most likely to bestow or withhold gratia, were barred from
sitting as auditors with a iudex when they were personally involved in
litigation before the court. This rule seems, at first, to be an example of the
common Roman and early medieval prohibition against an individual
sitting as a judge in his own case.37 The constitution goes on, however, to
bar these honorati from the practice of visiting the court precincts during
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
38. See also ibid. 1.16.13 (28 July 377):

Ne quis domum iudicis ordinariipostmeridiano tempore ex occasione secreti
ingredifamiliariter affectet eiusdem dumtaxat provinciae, sive notus iudici sive
etiam ignotus, gesti tamen honoris auctoritatempraeferens.
INTERPRETA TIO. Ne quis notus aut ignotus, eius tamen provinciae homo
meridianishoris aut secretis iudicem videat.
40. The interpretationes,while once thought to date from the period of the Alariciancompi-
lation (i.e. saec. vi), are now generallythought to be pre-Alarician,and possiblyof Gallic
origin;see J. Gaudemet, Le Breviairea'Alaricet les Epitome, lus Romanum Medii Aevi
['IRMAEI P. I, 2 B aa (Milan, 1965) 38 and following; N.B. 39:
Le but de l'Interpretation'estpas toujoursle meme, et sans doute les compilateurs
ont-ils fait usage d'oeuvres de nature differenteselon la fin qu 'ilsse proposaient.
Parfois l'Interpretatiorenvoie a d'autrestextes, ou bien elle donne une definition;
dans d'autrescas elle amplifie ou meme modifie ou corrige le texte qu'ellepretend
expliquer.
41. The Gallic provenance of the interpretationesis less certain than a second half of the
fifth-centurydating. Gaudemetpoints out that certaintermsfound in the interpretationes
are also found in the writingsof Gregoryof Tours or Gallic Formulariesof this period;
see Gaudemet, Le Breviaire,supra note 40, 38 n.151. See also W.W. Buckland, 'The
Interpretationesto Pauli Sententiae and the Codex Theodosianus,' Law Quarterly
Review lx (1944) 361 and following.

applied to the Roman population of the East Germanic Burgundian

Kingdom,42 a litigant is prohibited from bringing a suit before a court in the
name of one of the kingdom's potentiores, powerful lords,43 rather than in
his own right. It is possible this prohibition was intended, in part, to prevent
litigants of lower status from taking advantage of the substantive law rules
applied to those of higher class. These rules were, for the most part, more
favorable for those of higher status.44 It is clear, however, that for several
reasons there was more at work here than this. First, one obvious case of
abuse explicitly mentioned concerns litigation over contested titles to
property and the use of the names of potentiores to unjustly deprive
individuals of ownership through biased judgments.45 Second, this prohibi-
tion appears both absolute and applicable to other cases where no status
contingent rule was at issue, such as in other civil suits.46 Rather, this
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

prohibition may have been intended principally to prevent litigants from

seeking a favorable, but unjust, judicial decision by utilizing the 'good name'
of a powerful lord. According to Andreas Wacke, the potentiores in
successor states exercised remarkable amounts of power and influence, and
it seems likely an appeal to the reputation of a potens homo might well have
affected the trial's outcome.47 Presumably, a litigant would not attempt this
without the knowledge, and even collusion, of the lord whose name and
potential gratia he was invoking.48 One may speculate that it was not
uncommon to see such arrangements made for the express purpose of
exerting undue and improper influence on court proceedings. Certainly,
such arrangements would have been in the Roman tradition.
In the Leges Visigothorum, a series of legal compilations promulgated
and in force in the Visigothic kingdom territorially possibly as early as the
late sixth and during the seventh centuries,49 one sees the problem of
favoritism continuing as an improper influence in judicial proceedings. Book
II, Title I, Section 20 of the LV provides a sanction against the judge who
improperly delays or refuses to hear a case brought before him (a problem
seen before in the LRV):
If anyone should file a complaint against another before the judge, and the
latter should refuse to hear him, or deny him the use of his seal, or under
differentpretexts,should delay the trial of his case, not willingto comply with
the laws, because of favor or friendship(pro amicitiaaut patrocinio), and he,
who has brought the case can prove this by witnesses, the judge shall give to
him whom he has refused a hearing . . . that which he should have received
from his adversaryas a result of the judicial process... .50
causamperdat:et rei, de quaagitur,seupossessionemseu

praesumserit,
inquietare
ammittat,quamvisbonimeritinegotiumpossit habere.
repetitionem
The language of this passage is especiallyinteresting,for it is differentfrom the typically
impersonal, third person explanatory mode of most of the interpretationesto the CTh
and other LRV passages. Rather this uses the first person plural in large part. Is it
possible that this may represent another hitherto separately unknown constitutio or,
perhaps, variant form of the text of CTh, supra note 27, II.14.17?
47. A. Wacke, 'The Potentiores: Some Relations Between Power and Law in the Roman
Administrationof Justice,' The Irish Jurist 13 (1978) 372-89.
48. See supra note 13; the best modern treatment of the LV in its social and ideological
context is P.D. King, Law and Society in the VisigothicKingdom (Cambridge, 1972).
See also F.S. Lear, 'The Public Law of the Visigothic Code,' in F.S. Lear, Treasonin
Roman and Germanic Law (Austin, 1965) 136 and following. On the issue of the
territorialityof the LV and its predecessorcodes see P.D. King, 'King Chindasvindand
the First TerritorialLaw-Code of the Visigothic Kingdom,' in E. James, ed., Visigothic
Spain: New Approaches (Oxford, 1980) 131-58 and P.D. King, 'The Alleged Territor-
iality of Visigothic Law,' in B. Tierney and P. Linehan, eds., Authority and Power
(Cambridge, 1980) 1-12. And see, generally, S. Guterman, From Personal to Terri-
torial Law (Metuchen, 1972).
49. See King, 'King Chindasvind and the First Territorial Law-Code,' supra note 48,
131-58.
50. LV, supra note 13, II.1.20; the full text reads:
Si quisiudicipro adversariosuo querellamintulerit,et ipseeumaudirenoluerit
aut sigillumnegaveritet per diversasoccasionescausameius protaxerit,pro

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

The third influence in the Ciceronian triad, pecunia or outright bribery of

judges, was a problem throughout late antiquity and the early Middle Ages.
Legislation against judicial bribery is contained in later imperial legislation,
and it is a major preoccupation of the law codes of successor states. For
instance, in the Edictum Theoderici Regis, a Gallo-Roman law code of the
early sixth century,53 judges are warned that to accept bribes 'quod
venalitatis studio accepit' will cause them to face severe legal penalties.54
Several provisions in the Lex Gundobada,55 the Burgundian code applicable
to Burgundians, express similar sentiments.56 The second provision of the
code states:
For the love of justice, through which God is pleased and the power of
earthly kingdoms acquired, we have obtained the consent of our counts and
leaders,and have desiredto establishsuch laws that the integrityand equity of
those judging may exclude all rewardsand corruptionsfrom themselves.57
The fifth provision continues:
But if any of those mentioned (i.e., judges), corruptedagainst our law, or
even judging justly, has been convicted of receiving rewards from suits or
metuprincipumesse confectum, et hoc, quod obvium iustitie vel legibus iudicatum

est adque concretum, in nihilo redeat, et eos, qui iudicaverunt vel hoc facere
coegerunt, nullius infamie nota conspergat vel rei alicuius damnum adfligat; qui
tamen iudicestunc erunta legum damnis inmunes,si se iuramentofirmaverint,non
sua pravitate, sed regio vigore nequiteriudicasse.
This passage of the LV, first introducedby King Recessvind,suggests that judges were
expected to be impartialin regardto cases and litigantsbefore them, even at the expense
of royal desires. One might suggest that this notion of impartialitymight have been at
least partiallyinfluencedby Isidoranideas of law, justice and judging;cf. supra note 12.
53. See G. Vismara, Edictum Theoderici(Milan, 1967). IRMAE Pars I, 2 B aa x (Milan,
1967).
54. J. Baviera, Edictum Theoderici Regis [hereafter 'ETRI in Fontes luris Romani
AntejustinianiII (Florence, 1968) cap. Il:
ludex si pecuniam contra statum autfortunas cuiuslibetut sententiamproferret,
acceperitet ex hac re sub iustafuerit examinatione convictus, in quadruplumquod
venalitatis studio accepit, exsolvat, illi profuturum contra quem redemptus
docebitur tulisse sententiam.
55. The modern edition is that of L.R. de Salis, Leges Burgundionum [hereafter 'LB']
(Hannover, 1973) MGH.LL I.II.
56. The LB is no longerextant in contemporarymanuscriptsor manuscriptspriorto saec.ix.
However, internalevidence in the text of the LB suggeststhat the majorityof provisions
date from the last quarterof saec.v. and first quarterof saec.vi.
57. LBpraef., supra note 55, s.2:
Amore iustitiae, per quam Deus placatur et potestas terrenae dominationis
adquiritur,ea primum habito consilio comitum et procerum nostrorumstuduimus
ordinare, ut integritaset aequitas iudicandi a se omnia praemia vel corruptiones
excludat.
The translation used in the text is that of K.F. Drew, The Burgundian Code
(Philadelphia, 1972).

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
58. LB, supra note 55, cap. vi:

Quod si quis memoratumcorruptuscontralegesnostras,aut etiam iusteiudicans,
de causa vel iudiciumpraemium convictusfuerit accepisse,ad exemplum omnium
probato criminecapitepuniatur:ita utfacultatemeius in quo venalitasvindicatur,a
filiis aut legitimisheredibussius, quae in ipso punita est, culpa non auferat.
The translationin the text is that of K.F. Drew, The BurgundianCode,, supra note 53.
59. See e.g., LV, supra note 13, 1.1.20, II.1.21, II.1.16. It is extremely interesting to
speculate upon the development of royal efforts to curbjudicial venality and improper
exaction of valuablesfrom litigantsand the relationshipof this trendto the development
of regulationsconcerningsimony. Here again, I hope to returnto this subjectin a later
work. For the present, see, generally,J.A. Yunck, The Lineage of Lady Meed (South
Bend, 1963) esp. 23-61.
60. Schwind, ed., L.Baiv., supra note 25, MGH.LLI.5.II:
ludex si accepta pecunia male iudicaverit, ille qui iniuste aliquid ab eo per
sententiam iudicantisabstulerit,ablata restituat. Nam iudex qui perperam iudica-
verit, in duplum ei cui damnum intuleritcogatur exsolvere, quiaferre sententiam
contra legumnostrarumstatutapraesumpsit,et infisco cogaturquadragintasolidos
persolvere.
An Englishtranslationof the L.Baiv. has been publishedin Rivers,Lawsof the Alamans
and Bavarians, supra note 25. This translation, however, is based not on the MGH
edition, but ratherupon K. Beyerle'sedition of the Ingolstadtmanuscriptof the L.Baiv.,
supra note 25. Thus, the translationof the text differsfrom that made by Rivers(though
not significantly).On this passage, see also Schmitt-Weigand,Rechtspflegedelikte,supra
note 4, 87.
61. Cf. ibid. 34.
62. A. Boretius,ed., CapitulariaRegum Francorum(Hannover, 1960) MGH.LLCAPIT. I,
58:
Ut quibus data est potestas iudicandi iuste iudicent, sicut scriptum est: 'iuste
iudicate,filii hominum' non in muneribus,'quiamuneraexocant cordaprudentium

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.

precise function fulfilled by judges, abuse of such functions was always

possible.
First, a common form of judicial misbehavior would have been the simple
refusal to hear a case.67 This form of misconduct has already been
encountered in a passage of Leges Visigothorum mentioned previously.68
Regulation of similar behavior on the part of Frankish rachinburgii also is
contained in Lex Salica in both its Merovingian and Carolingian versions.69
The second way in which a corrupt judge could misbehave was by
delaying judicial proceedings to the prejudice of one of the parties. This
appears to have been a favorite means of perverting justice during the early
Middle Ages, and laws prohibiting such behavior abound. For instance,
Leges Visigothorum II. 1.22 reads:
It is our duty ... to admonishjudges not to subjectlitigantsto unnecessary
delay or impose heavy costs upon them. But, if it appearsthat a judge, through
craft or cunning, has so delayed mattersthat one or both partieshave suffered
injury, he shall be compelled to refund to them all costs that have been
incurredafter eight days from the time when the action was begun ... 70
Another form of judicial misconduct, perhaps the most serious, was the
rendering of a decision in contradiction of the received law. This form of
misconduct often seems to have followed from other bad practices already
mentioned. Presumably, such misconduct could take the form of a decision
without following the legally mandated procedures, whether it be failure to
require an ordeal or failure to impose a sentence required by applicable law,
67. For example, see LV, supra note 13, II.1.20.

68. It is interestingto note that LV II.1.20, as well as LV II. 1.22, are both early texts,
promulgated by King Chindasvind. On LV 11.1.20 see Zeumer, 'Geschichte der
westgothischenGesetzgebung,'supra note 12, 75-76.
69. See, for instance, K.A. Eckhardt, ed., Pactus Legis Salicae [hereafter 'L. Sal.]
(Hannover, 1962) MGH.LL I t.iv, P.I., LVII ('De Rachuburgiis.')Variantsof this text,
acording to Eckhardt'sapparatus criticus, are found in several classes of mss., dating
from both the Merovingian and Carolingianepochs, including (in his stemma) Text
Classes A, B, C (Merovingian), and H, and K (Carolingian).On L. Sal. 57 see also E.
Mayer-Homburg,Die Frinkischen Volksrechteim MittelalterI: Die frinkischen
Volksrechte
unddas Reichsrecht
(1912).
70. LV, supra note 13, II.1.22 reads in full:
Tranquille hac solliciteinstantiamansuetudinis
nostrepremonet;iudicesomnes
nondeberedilatarecausidicos,negravidispendioaliquatenus honorentur.Quodsi
dolo aut calliditatealiquaad hoc videturiudexdifferenegotium,ut unapars aut
ambenaufragium perferant,quidquiddispendiissuperoctodiesa diecepteaccionis
causantespertulerint, redditosacramento,totumeis iudexreddereconpellatur.
Sin
autem vel egritudovel publiceutilitatisindictiosuspenderitiudicema negotio
peragendum,nullam moram exibeat litigantibus,sed sub hac eos difinitione
confestumabsolvat,ut ad causamexpediendam conpetentitemporeindubitanter
occurrant.
And cf. CTh. 11.6.2; see also Schmitt-Weigand,Rechtspflegedelikte,supra note 4, 70
who suggests that the motivation for this law was the fear that a delay in proceedings
would permit self-help measuresand feud to preemptlegal proceedings.

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
Charlemagne seems to have been especially concerned with judges who

ignored his written laws and gave judgments contradicting them. In a
passage in the Programmatic Capitulary of A.D. 802, he admonished his
missi dominici:
[T]hat judges should judge justly according to the written law, not
according to their own inclination (arbitriumsuum).75
71. A question raisedby this injunction,found for instancein Charlemagne'sProgrammatic

Capitularyis whetherimplicitin it is an assumptionof the existence of writtenlaws and
their extensive use; see Schmitt-Weigand, Rechtspflegedelikte,supra note 4, 113 and
Nehlsen, 'Aktualitatund EffektivitatGermanischerRechtsaufzeichnungen,'supra note
6, 451 takes a contraryposition. On this matter,I believethat Nehlsentoo easily assumes
that this injunctioncan only apply to lex scriptaand actual forcedjudicial use of written
law codes in court proceedings.I have commentedextensivelyon this problemin a paper
entitled 'Law and the Commonweal in the Middle Ages: Ideology and Pragmatism'
presented at the Annual Meeting of the American Society for Legal History held on
October 21-22, 1982. On the developmentof the notions expressedin this injunctionin
later medieval law and juristic commentary, see K.W. Norr, Zur Stellung des Richters
und gelehrten Prozess der Fruhzeit: ludex Secundum Allegata Non Secundum
ConscientiamIudicat, MiinchenerUniversitats-Schriften,Bd. 2 (Munich, 1962).
72. For instance, LV, supra note 13, II. 1.21
73. See Schmitt-Weigand,Rechtspflegedelikte,supra note 4, 92 and infra note 100 and text
thereto, wherethe judge himselfis to be condemnedto death. It is interestingto note that
the fear of the irreversibilityof an incorrect capital judgment and its concommitant
problems has persisted from the early Middle Ages to our own times, see C. Black,
Capital Punishment, The Inevitabilityof Capriceand Mistake (New York, 1974).
74. ETR, supra note 54, cap. I:
Priore itaque loco statuimus, ut si iudex acceperitpecuniam, quatenusadversum
caput innocens contra legis et iurispublici cauta iudicaret,capitepuniatur.
And see sources cited supra note 73 and infra note 100.
75. Boretius, CapitulariaRegum Francorum,supra note 62, cap. 26, 96:
Ut iudices secundum scriptam legem iuste iudicent, non secundum arbitrium
suum.
Note also, cap. 25:
Ut comites et centenariiad omnem iustitiamfaciendum conpellent et iuniores
tales in ministeriis suis habeant, in quibus securi confident, qui legem adque

What is obvious from the foregoing discussion is that regardless of

whether judges were triers of law and fact or simply referees of oath-taking
procedures or ordeals, there were always ways in which, given cause, they
could harm either of the litigants before them. Thus, the danger of judicial
misconduct was perceived to be a serious problem regardless of the precise
functions allocated to judges and in kingdoms with highly 'Romanized'and
therefore sophisticated legal systems and those less complex.
The third, and perhaps most interesting, question concerns the type of
liability imposed on misbehaving judges and the ways in which, procedurally,
aggrieved litigants or administrative superiors within the judicial hierarchy
could trigger such liability. Answers to these questions will necessarily
require some consideration of the social functions played by such liability
rules in the early medieval context.
As already noted, the notion of judicial liability in classical Roman law is
manifested primarily in the quasi-delictal actio in iudicem qui litem suam
facit.76 This action was available to litigants who suspected that the decision
rendered against them, at the conclusion of the case, a lis, resulted not from
impartial application of the proper substantive and procedural rules of law,
but rather from improper influence.77 In terms of models, the action was for
monetary damages equal to the loss experienced by the aggrieved litigant to
be paid by the judge.78 Thus, in a very special sense, the iudex made the case
his own, because the award ultimately received by the aggrieved litigant
came from the miscreant judge rather than from his party opponent.79
Presumably, in classical law at least, the party-opponent would either
entirely escape liability he ought properly to have borne or would reap a
windfall by receiving that to which he had no claim.80
It may be suggested that the actio in iudicem qui litem suamfacit served a
twofold legal and social function. First, during the formulary and legis
actiones period of Roman law, it provided a mechanism for compensating a
litigant who had suffered at the hands of a corrupt judge. During this period,
iustitiamfideliter observent,pauperes nequaquamoppriment,fures latronesqueet

homicidas, adulteros, malificos adque incantatores vel auguriatrices,omnesque
sacrilegosnulla adulatione velpraemium nulloque sub tegiminecelare audeat, sed
magis prodere, ut emendentur et castigentursecundum legem, ut Deo largiente
omnia haec mala a christianopopulo auferatur.
And see sources cited at supra note 62.
76. Ibid 5. and nn. 21-23; an interestingJudaic parallelto this Roman action is found in A.
Davis, ed., Pirkei Avos (New York, 1980) cap. 1:8.
77. Ibid. 4.
78. D.50.13.6; D.44.7.5.4; and see Kelley, Roman Litigation,supra note 4, 115.
79. Ibid. 104-7.
80. But cf. ibid. 103 commenting on D. 17.2.52.18. Kelley points out in this passage that,
generally, at least according to D.20.1.31; D.20.16.13; and D.43.30.4, an unfair
judgment against a litigantcould be grounds for an exceptio rei iudicatae (i.e. could not
be relitigated)and, presumably,an unfairlywrongedplaintiff,therefore,could normally
recover on the matter only through a collateralaction brought against the judge.

there was no true right of appeal by which an unjust judgment could be

reversed; therefore, a collateral action, such as the actio in iudicem qui litem
suam facit, was necessary to do justice in the individual case.81 The action
also served a significant systematic function, however, for it not only
compensated a wronged litigant but, presumably, it also provided a strong
disincentive to judicial misconduct.82 A real potential for collateral attack
and civil liability would have served both as an in terrorem and as a practical
disincentive to judges inclined to err.83
We have very little evidence of the actual application of the actio in
iudicem qui litem suamfacit in later Roman law, although as noted above,
the action is included in Justinian's Institutes among the quasi-delicts.84
Whether or not the actio was, indeed, used during the later Empire, it is
clear that the notion of some form of judicial liability for misconduct on the
bench, persisted throughout the late Empire and found its way into the law
codes of successor states.
In the Edictum Theoderici Regis, several different forms of liability for
improper judicial behavior are mandated. If it is proven that a judge
corruptly condemned an innocent man to death, he is, himself, to be
executed.85 Furthermore, the judge rendering a monetary judgment against
the established law, as a result of taking a bribe, is required to pay quadruple
the amount of the bribe to the litigant he has wronged.86 The imposition of
this penalty is especially interesting. As Ernst Levy has shown, in late
Roman vulgar law, the fourfold penalty had become standard forfurtum,
both manifestum and nec manifestum.87 Thus, this passage from the
Edictum Theoderici Regis illustrates not only the persistence in Western
vulgar law of a notion of civil liability for improper judicial conduct, but it
also suggests that conceptually, such misconduct was perceived as tanta-
mount to theft. Therefore, the law required fourfold restitution of the
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.
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.

amount illegally taken.88 In light of this fourfold penalty, it seems relatively

certain that the judicial liability rule was not primarily compensatory, but
was deterrent in nature. One would expect, in a compensatory context, that
the penalty paid to the aggrieved litigant would approximate the amount of
his loss. The quadruple penalty, however, might bear no foreseeable relation
to the loss. Rather, it would serve primarily to deter a judge from
undertaking illegal action, i.e., be penal rather than compensatory.
In a law issued by King Liutprand, a Lombardic monarch, in the ninth
year of his reign (A.D. 721), one sees a similar penalty established for
judicial corruption independent of the amount of monetary or other loss
suffered by the wronged litigant:
If anyone brings suit against another and the schultheisor iudex rendersa
decision for him according to law and the Edict, and if he does not abide by
this judgment, he shall pay twenty solidi as composition to that one who
adjudicatedthe case. In those cases that have been settledby judgmentand he
(against whom the case was brought) does not believe that it was judged
accordingto law and, therefore,he appealsto the king, he shall not be liableto
blame. And if thejudge hadjudged contraryto law [i.e., the penaltyfor failure
to obey thejudgment], he shallpay forty solidi as composition, half to the king
and half to him whose case it is.89
This passage is of great interest on a number of counts. First, here, again,
the amount of the penalty imposed on the judge is unrelated to the damage
suffered by the aggrieved litigant. Indeed, in this context, there is,
presumably, no need for compensation or restitution because the law implies
that the improper judgment shall be reversed on appeal. Rather, the
miscreant judge must pay a set fine of forty solidi. The structure of the
passage within which this fine is imposed is also quite significant. The text
first stipulates a penalty for the contumacious litigant who refuses to honor a
properly rendered judgment. He must pay a set fine of twenty solidi to the
judge as compensation. Immediately thereafter, the text prescribes the
liability of a judge rendering an improper judgment. The justification for
juxtaposing these two liability rules is that both deal with what a modern
jurist would regard as 'abuse of process.' Their inclusion in the same legal
provision would suggest that the law's draftsmen considered them concep-
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
90. Boretius, ed., CapitulariaRegum Francorum,supra 62, cap. 9, 93:

Utnemoinplacitopro alio rationareusumhabeatdefensionem alteriusiniuste,
sive pro cupiditatealiqua,minusrationarevalentevel pro ingeniorationissuae
iustumiudiciummarrirevelrationemsuamminusvalenteopprimendi studio.Sed
unusquisque pro sua causavel censumvel debitorationereddat,nisi aliquisisti
infirmusautrationesnescius,pro quibusmissivelprioresquiin ipsoplacitosuntvel
iudexquicausahuiusrationissciatrationetur conplacito;velsi necessitassit, talis
personaelargiturin rationemquiomnibusprovabilissit et qui in ipsabenenoverit
causa:quodtamenomninofiatsecundumconvenientiam priorumvelmissorumqui
praesentemadsunt. Quodet omnimodissecundumiustitiamlegemfiat; adque
praemium,mercedemvel aliquomalaeadulationisingeniovel defensionepro-
pinquitatisut nullatenusiustitiaquismarrirepraevaleat.Et ut nemoaliquitalicui
iniusteconsentiat,sed omni studio et voluntateomnes ad iustitiaperficiendam
praeparatisunt.
Hecenimomniasupradictaimperialisacramentoobservaridebetur.
And see Ganshof, 'Charlemagne'sProgrammeof ImperialGovernment,'supra note 62,
59; see also Schmitt-WeigandRechtspflegedelikte,supra note 4, 22.

100 Law and Histor' Review
... 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.
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).

noted, incorporated provisions into his reforms that imposed severe

penalties upon his royal officials failing to act properly when sitting in
judgment, up to and including loss of their office.99 An even more severe
penalty awaited the corrupt judge who fell within the purview of the Lex
Ribuaria: '0
With consent and counsel and in accordancewith prior law and custom we
hereby order to all that no lord, major domus, domesticus, count, grafio,
chancery official or any other official sitting in judgment in the Ripuarian
provinceaccept bribesto pervertjustice. And if he should be convicted of such
misconduct, he shall pay with his life.101
Although the overwhelming tendency in early medieval law was to hold
the miscreant judge to penal liability relatively unconnected to the aggrieved
litigant's actual damages, in certain instances it is clear that traces of the
compensatory origin of such liability did not entirely disappear. The best
example of this is found in the Leges Visigothorum, in many respects the
most Romanized of the early medieval Germanic codes.'02 Leges Visi-
gothorum II. 1.21, mentioned earlier, prescribes that in a case of proven
judicial misconduct, either as a result of gratia or of bribery, the judge was
liable to the litigant for that which he would rightly have been entitled had
the case been properly decided. However, the litigant also was entitled to
restitution from his party opponent.103 Here, perhaps, is a mixture of penal
and compensatory notions.
Thus, all of the previously mentioned passages make it clear that the
imposition of judicial liability during the early medieval period was primarily
motivated by the desire for deterrence rather than from a desire to
compensate the wronged litigant. That this was so seems perfectly
reasonable. Recently, it has been suggested that the compensatory function
99. L. Rib., supra note 97, MGH.LL.I.III P.II.

100. Ibid. cap. 91, 1:
Hoc autemconsensuet consilioseupaternatraditioneet legisconsuetudine
superomniaiubemur,ut nullusoptimatis,maiordomus,domesticus,comes,
gravio,cancellarusvel quibuslibetgradibussublimitasin provintiaRibuariain
iudicioresedensmuneraad iudiciopervertendo non recipiat.Quodsi quisin hoc
depraehensusfuerit, de vitaconponat.
Cf. Schmitt-Weigand,Rechtspflegedelikte,supra note 4, 17, 73, 127.
101. See King, Law and Society in the VisigothicKingdom, supra note 48.
102. LV, supra note 13, 11.1.21, 5 and n.24. The text is labelled 'antiqua' in Zeumer's
edition and begins:
ludex si per quodlibetcommodummale iudicaveritet cuicumqueiniuste
quidquamauferrepraeceperit,ille, qui a iudiceordinatusad tollendemfuerat
destinatus,ea, que tulit,restituat.
And see, K. Zeumer, 'Uber Zwei Neuentdecktswestg6thischeGesetze,' Neues Archiv
xxiii (1897) 93 and following for a discussion of LV 11.1.21 and other Germanic
parallels.
103. MacCormack,'ludex Qui Litem Suam Fecit,' supra note 21, 151.

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
104. Cf. Schmitt-Weigand,Rechtspflegedelikte,supra note 4, 75.

105. Cf. J. Feinmanand R. Cohen, 'SuingJudges: Historyand Theory,' 31 South Carolina
Law Review 201-92 (1978).
106. Certainly, this has been the experience in the United States. In the ancient world,
appellate structureswhere they existed did not serveto deter mostjudicial misconduct.
The volume of corrective legislation authorizing collateral actions and/or criminal
proceedingsfor misconductalone suggeststhis.
107. See Isidore of Seville, Sententiae, ed. J.C. Ruiz and I.R. Melia. Santos Padres
Espafoles II (Madrid, 1971) 505, cap. 54.1 ('De Muneribus):
Qui recte iudicat, et praemium remunerationesexspectat,fraudem in Deum
perpetrat, quia iustitiam, quam gratis impertiri debuit, acceptione pecuniae
vendit.

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
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.

times to the early medievalperiod (and, indeed, to our own) is noteworthy.

The Ciceronian triad of gratia, potentia and pecunia had great staying
power. Second, one may also notice the persistence of several forms of
common abuse: refusal, delay and judgment contrary to substantive or
procedural rules of law. These 'abuses of process' equally plagued the
judicial system in late antiquity and the early Middle Ages. Finally, one
may see the developing ideological framework of judicial liability, its
compensatoryas well as deterrentfunctions, the conceptual link with theft,
the ideological connection to the socially perceivedcentralityof law to the
maintenanceof society, what Cassiodorusreferredto as 'civilitas,'and the
interconnectionbetween royal office, right judging, and the will of God.
Above all, an examinationof the concernexpressedby late ancientand early
medieval legislators with judicial misconduct illustratesboth the relatively
sophisticated way in which they approached central legal problems, and
shows, as well, the many points at which late ancient and early medieval
legal concerns closely approach our own.


HOEFLICH, M. H. - Regulation of Judicial Misconduct From Late Antiquity To The Early Middle Ages

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HOEFLICH, M. H. - Regulation of Judicial Misconduct From Late Antiquity To The Early Middle Ages

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American Society for Legal History

The Board of Trustees of the University of Illinois

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In a well-known chapter in the book known as the Mirror of Justices, the

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Civilprozess des gemeinen Rechts in geschichtlicher Entwicklung, iv, pt. 1. Der

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is the observance of law; it is this . . . which separates men from beasts.'9

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Cicero's writings. Cicero remarked that the three causes of judicial

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Whether or not liability existed for ignorantia or imprudentia during the

20. See Kelly, Roman Litigation,supra note 4, 10 and following.

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Similarly, in the Lex Baiuariorum II. 18 is found:

24. LV, supra note 13, II. 1.21:

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29. CTh, supra note 27, IV. 17.

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question is raised whether a litigant is entitled to redress if, in the initial

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38. See also ibid. 1.16.13 (28 July 377):

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applied to the Roman population of the East Germanic Burgundian

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prohibition may have been intended principally to prevent litigants from

causamperdat:et rei, de quaagitur,seupossessionemseu

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This content downloaded from 190.172.106.217 on Thu, 13 Feb 2014 21:20:28 PM

The third influence in the Ciceronian triad, pecunia or outright bribery of

metuprincipumesse confectum, et hoc, quod obvium iustitie vel legibus iudicatum

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58. LB, supra note 55, cap. vi:

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precise function fulfilled by judges, abuse of such functions was always

67. For example, see LV, supra note 13, II.1.20.

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Charlemagne seems to have been especially concerned with judges who

71. A question raisedby this injunction,found for instancein Charlemagne'sProgrammatic

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What is obvious from the foregoing discussion is that regardless of

iustitiamfideliter observent,pauperes nequaquamoppriment,fures latronesqueet

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there was no true right of appeal by which an unjust judgment could be

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amount illegally taken.88 In light of this fourfold penalty, it seems relatively

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90. Boretius, ed., CapitulariaRegum Francorum,supra 62, cap. 9, 93:

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noted, incorporated provisions into his reforms that imposed severe

99. L. Rib., supra note 97, MGH.LL.I.III P.II.

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104. Cf. Schmitt-Weigand,Rechtspflegedelikte,supra note 4, 75.

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This content downloaded from 190.172.106.217 on Thu, 13 Feb 2014 21:20:28 PM

times to the early medievalperiod (and, indeed, to our own) is noteworthy.

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