The Jurisprudence Related to the Conscience of the Judge in the Romano-canonical Tradition (12th to 16th century)

A murder was committed in Paris. At the trial, all witnesses testify to the guilt of the accused. By coincidence, the judge has personally seen the accused at Orleans, at the time of the murder. Must the court condemn the accused, according to the evidence brought at the trial, i.e. condemn him to death? Or may it, and even must it, decide according to its conscience and acquit him? This is the most heavily debated question concerning the conscience of the court between 1100 and 1600. Jurists versed both in the secular law and in the canon law, but also moral theologians (e.g. in guidebooks for confessors), took part in that discussion. The dominant view – held by Azo, Hostiensis, S. Thomas Aquinas – held that the court, at the stage of deciding on the evidence adduced by the parties, should ignore any private knowledge not derived from the allegata et probata. But there were always dissenting views and the dominant opinion was less rigorous than recent scholarship has asserted.