Oath-taking in Inquisitions

Abstract

When Innocent III outlined the inquisitorial form of criminal trial at the Fourth Lateran Council, he explained how a suspect was to be confronted: the judge was to explain the charges against him and allow him opportunity of making exceptions against them.1 But the pope did not describe the actual beginning of the trial, what commentators would call the litis contestatio, borrowing the term from civil litigation. Furthermore, the commentators imitated him by not discussing it, a practice that extended into the seventeenth century.2 Trial beginnings were also routinely omitted from court reports, with no charges, oath, or plea recorded.3 The usual idea about inquisition as established at the council, following Adhémar Esmein’s 1896 article,4 which I myself have often repeated,5 is that defendants were not supposed to be put under oath when they responded to the charges, but that soon such oaths were routinely imposed. Esmein pointed out that the oath ‘de veritate’ was never imposed on the ‘accusatus’ in the ‘accusatio’ process.6 Therefore, the same should be true of the ‘inquisitus’ in