Subpoena Ad Testificandum - History

History

The subpoena developed as a creative writ, the "writ subpoena", from the Court of Chancery. Writs of many kinds formed the essential parts of litigation. The primary function of a writ in the 13th and 14th centuries was to convey the king's commands to his officers and servants. It was irrelevant what the nature of those commands might be. The Register of Writs shows a large variety of writs to be administrative in nature, as opposed to judicial. These former writs acquired the name prerogative writs in the 17th and 18th centuries. Prerogative writs that have survived into modern law are the writ of mandamus and writ of certiorari. The medieval writ of prohibition played an important part in the conflict between the church and state in England. The writ was also used in the courts of admiralty and local courts. It has survived in relative obscurity in United States law. The writ subpoena began to be attached to a wide variety of writs in the 14th century. These were an invention of the Court of Equity, which were a part of Chancery. Thus, "subpoena" was a product of the Ecclesiastical Courts in England. The commonest writ from this era was the Praecipe quod reddat ("You are commanded to return "). To these were often added the phrase sub poena ("under penalty").

The development of the writ subpoena is closely associated with the invention of due process, which slowly replaced trial by ordeal. The institution of the jury trial necessitated the hearing of evidence. This, in turn led to the need for a reliable method of compelling witnesses to appear and give testimony. The writ subpoena became the standard method of compelling witnesses. Following the Fourth Lateran Council in 1215, and based on a Latin interpretation of natural moral law, all forms of trial by ordeal or trial by battle were outlawed in Church courts. Of greater significance to English law was the fact that the clergy were banned from blessing trial by ordeal in the civil and common law courts. This had the effect of bringing the practice of trial by ordeal to an abrupt halt in England. Trial by battle, which later evolved into a method of settling scores by dueling, was less affected. These had never had, nor did they require, the blessing of the Church. They were never a part of Latin or Roman law, but had been prevalent in the underlying Celtic and Saxon cultures. Trial by ordeal had always been viewed with skepticism and condescension by Latin lawyers and intelligentsia. Trial by battle, for the sake of honor had a long and proud tradition in Rome, and remained prominent in Roman lands. It had been banned by the Church courts on the Continent. Those who wanted to duel simply ignored the ban.

Following the Fourth Lateran Council, the civil and common law courts quickly moved to ban these practices, as well. Implementation proved to be more difficult. What to replace trial by ordeal and trial by combat with? The novel choice was trial by jury. In many places this change was seen as radical, and was met with great doubts about its effectiveness. There was reluctance to accept juries on a large scale by many of the English courts, and the public at large. People were used to a system where decisions were made by the outcome of a duel, or from some ordeal. The jury system had made a sporadic appearance in England from time to time, including, but not limited to Danelaw and the Saxons. Even so, juries had never been predominant. They remained a local and obscure phenomena. It was generally believed that God's will was revealed in the outcome of the battle or ordeal. The fact that the judge would view the result of the ordeal and declare "God's decision" had little bearing on the validity of the procedure. The jury was something else. It didn't represent God, but rather twelve or more individuals who like as not, would fail to come up with the solution God would want.

Cases which had no resolution, just as today, could easily be mocked by the public if the decision by the jury was inconclusive, or not in agreement with all the facts, or with emotions of the populace. Trial by ordeal or battle avoided these problems. The result in difficult cases was almost always clear cut. Judges didn't have to make tough decisions.

1215 was also the year of the Magna Carta. Among other things, it limited the Courts of Eyre. These were circuit riding courts of the King which were roundly feared and hated. They had a reputation for being imperious and angry. There was thought to be little mercy in the Courts of Eyre. Magna Carta limited the Courts of Eyre to visiting the same location to once every seven years.

Trial by battle and dueling proved to be a most recalcitrant problem for the Church. It was not until recent times that it was more or less banned, mainly by rule of law.

The Fourth Lateran Council was overseen by Pope Innocent III, who along with Pope Adrian IV represented the absolute zenith of Papal Power in the Middle Ages.

The promulgation of the jury system required the taking of testimony from witnesses. This led to growing use of writs compelling attendance at trials, using the phrase "sub poena".