page_title: Subpoena ad testificandum
section_title: History
hierarchical_section_title: Subpoena ad testificandum / History
caption_attribution_description: Deutsch: Die Probe des glühenden Eisens vor Kaiser Otto III., ein Tafelbild von Dirk Bouts, gemalt 1470/75 (Musée Royal des Beaux-Arts, Brüssel). Das Bild zeigt eine sagenhafte Überlieferung um Otto III. (980 — 1002): Ein Mann soll mit der Frau Ottos die Ehe gebrochen haben, weshalb ihn der Herrscher enthaupten ließ. Die Witwe bewies das Gegenteil: in der einen Hand hielt sie das abgetrennte Haupt ihres Mannes, in der anderen ein glühendes Eisen. English: The Ordeal by Fire before Emperor Otto III, a painting by Dirk Bouts, painted 1470/75 (Musée Royal des Beaux-Arts, Brussels). The picture shows a legendary tale related to Otto III (980–1002): A man should have broken the marriage with Otto's wife, wherefor the ruler had him beheaded. The widow proved to the contrary: in one hand she held the severed head of her husband, in the other—a red-hot iron. Attempted translation of the above German description.Notice: (Saint) Richardis is not the woman before Otto but the nun in flames in the far back. Polski: Próba rozpalonego żelaza przed cesarzem Ottonem III, obraz Dirka Boutsa, namalowany 1470/75 (Musée Royal des Beaux-Arts, Bruksela). Obraz ilustruje legendarne podanie (sic) związane z Ottonem III (980–1002): Mężczyzna powinien był zerwać związek małżeński z żoną Ottona, za co władca skazał go na ścięcie głowy. Wdowa udowodniła stanowisko przeciwne: w jednej dłoni trzymała ściętą głowę swojego męża, a w drugiej – rozpalone żelazo. Próba wiernego przetłumaczenia powyższego niemieckiego opisu.Zakonnica w płomieniach daleko z tyłu to święta Ryszarda.
context_page_description: A subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the ecclesiastical courts of the High Middle Ages, especially in England. The use of the subpoena writ was gradually adopted over time by other courts in England and the European continent.
context_section_description: 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 [some misappropriated good or land]"). 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 held in 1215 (overseen by Pope Innocent III who was at the zenith of Papal power), 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 trial by ordeal and trial by combat. Implementation proved to be more difficult.  What would take their place?  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 a 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 an 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.  A jury remained a local and obscure phenomenon.  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 did not represent God and its twelve or more members were likely to fail to deliver God's solution.
  Cases which had no resolution, just as today, could easily be mocked by the public if the decision by the jury was 
caption: Prior to the Fourth Lateran Council, trial by ordeal was the norm.
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