What do an iconic first century Christian saint, a 13th century medieval pope, and the twelve women and men currently sitting in judgment of the former United States president in a New York courtroom have in common?
While most observers would surely assume the answer is ‘not much,’ Harvard Law School’s Elizabeth Papp Kamali ’07 might beg to differ. An expert in medieval English law, Kamali argued during a recent lecture that while the origins of the modern jury trial can be traced to a momentous judicial reform enacted by a church council in 1215, England’s broader approach to fact-finding might be better understood by exploring Pope Innocent III’s personal devotion to the saga of Saint Veronica.
Kamali’s comments came during a Harvard Law School event on April 9 celebrating her appointment as the Austin Wakeman Scott Professor of Law. The author, among other works, of the award-winning book, “Felony and the Guilty Mind in Medieval England,” Kamali teaches criminal law and English legal history.
The story of Veronica begins, according to one version of the tradition, around 33 A.D. on the road to Calvary, she said.
“This is the version familiar to Catholics from the Stations of the Cross, a later Franciscan innovation,” Kamali explained. “Veronica uses her cloth to wipe blood and sweat from Jesus’ face” as he carried the cross to his place of crucifixion. The product of this act of mercy, many believe, is a still revered relic, now housed in St. Peter’s Basilica in Rome, bearing the true likeness (or ‘vera icona’ in Latin) of Christ’s face.
Saint Veronica pillar by Francesco Mochi, 1629, at St. Peter’s Basilica in Rome (left); Paintings of Saint Veronica circa 1420-1430.
The history of Veronica’s influence on modern judicial proceedings then flashes forward nearly 1,200 years to an era known by historians as the High Middle Ages. In 1215, Pope Innocent III summoned bishops from across the Catholic Church to meet at the papal headquarters, the Lateran Palace in Rome, to debate several reform proposals. Among the more laudable and lasting items on Innocent’s agenda was the abolition of the now-infamous adjudicatory procedure known as trial by ordeal.
Before the Fourth Lateran Council, England and many other Catholic countries had for centuries determined a defendant’s culpability through a process called the “judicium Dei,” or the judgment of God. As Kamali explained in an interview in 2019, the “two methods used most typically in England were trial by cold water and trial by hot iron. In trial by cold water, a person would be dunked into a cistern. If they sank, they would be declared innocent, because the water had accepted them. If they floated, they would be declared guilty.”
In trial by hot iron, “the accused would grasp the hot iron, walk a certain number of paces, and put it back down.” If their burned palms continued to fester after a few days, “they would be pronounced guilty.”
When, under Innocent’s guidance, the Fourth Lateran Council decided to prevent priests from presiding at these types of judicial proceedings, nations like England needed new means of assessing criminal culpability. According to Kamali, the commonly accepted version of history tells us that continental Europe adopted the judge-driven inquisitorial system which persists at the heart of civil (rather than common) law today, while England decided to go a completely different direction by adopting jury trials.
But over the course of nearly an hour, Kamali grafted a layer of nuance onto that version of events, demonstrating that the English approach had more in common with its continental cousins than is often believed, particularly in its use of coroner-led pre-trial investigations known as inquests.
“In 1219, instructions were sent to England’s royal justices on how to try felony cases given the doubt that had arisen,” she explained, quoting instructions by King Henry III, “‘since the Roman church prohibited [the ordeal].’ Within a few years, England settled on jury trial as an ordeal replacement, a new method of proof.” But that telling, she hinted, was not the whole truth.
In trial by hot iron, “the accused would grasp the hot iron, walk a certain number of paces, and put it back down.” If their burned palms continued to fester after a few days, “they would be pronounced guilty.”
It is perhaps ironic that a pope who took the name Innocent may be credited with changing the way medieval Europe decided whether accused felons were guilty or … well, you know. And it may be worth remembering that, as one of the most powerful pontiffs in history, he was also responsible for, or approved of, a host of actions most people today, and many at the time, find deeply deplorable, ranging from overt, de jure acts of antisemitism to a crusade against so-called heretics in Southern France, to the toppling of the Byzantine emperor.
But despite his flaws, as Kamali explained, Innocent, as a “lawyer pope,” also had a special devotion to law and proof, as well as a predilection for what might be called today data-driven decision-making. One example of this tendency, she explained, can be seen in the way he reformed the process of making saints, moving from an age-old practice of popular acclamation to one that involved an exploration of a candidate’s curriculum, both vitae and post-mortae.
When English church officials petitioned for the canonization of a late local cleric named Gilbert around the turn of the 13th century, for instance, Innocent ordered a detailed investigation into his qualifications. Kamali quoted the pope’s instructions as summarized by the archbishop of Canterbury. “‘Let us investigate the truth not only through testimony but through witnesses, through popular fama and original documents, regarding the virtue of character and the virtue of signs, namely works and miracles.’” Gilbert’s canonization was approved two years later after investigators had taken the testimony of nearly 80 witnesses.
But what does this have to do with Veronica and the countenance of Jesus displayed on her veil? According to Kamali, the themes of Veronica’s story, a tale widely known throughout medieval western Europe, reflect contemporary understandings of the nature of proof and strategies for resolving doubt.
To understand why, one must first recall that Innocent was a particularly faithful devotee of Veronica. “In early January 1216,” she noted, “a month or two after Lateran IV, Pope Innocent III led a procession from St. Peter’s Basilica to the Hospital of Santo Spirito, less than half a mile away on the Tiber’s banks.” Innocent had founded the still-extant institution to care for the sick and poor. And according to English chronicler Matthew of Paris, the star attraction of the pope’s visit was the Veil of Veronica.
“When I was Hungry, Thirsty” by Canadian artist Timothy Schmalz sits outside the Ospedale di Santo Spirito in Sassia, which was endowed by Pope Innocent III to care for the sick and poor.
“When I was Sick” by Canadian artist Timothy Schmalz is installed on the grounds of the Ospedale di Santo Spirito in Sassia.
What’s more, she explained, the hospital “had an English connection. Having been founded on the site of the Schola Saxonum, which had served for centuries as a hostel for English pilgrims and the Church of Santa Maria in Sassia, in which Wessex kings were buried, the new hospital attracted an annual donation of 100 marks from King John of England.”
Indeed, Veronica’s continuing hold on adherents today may have much to do with Innocent’s fidelity to her tale, many different versions of which proliferated during and after his reign.
“The multiplication of Veronica stories in Latin and the vernacular in the thirteenth and fourteenth centuries is attributable, at least in part,” Kamali explained, “to Pope Innocent III’s special devotion to the image” of Christ’s face on the veil attributed to her. “It seems that a legend with a matter of proof at its core — proof of Jesus’ human appearance and of his divinity, but also proof of the manner of Jesus’ death and the guilt of those who sentenced and executed him — was bound to capture the imagination of a pope known to history as a proponent of rational proof, whether judging candidacy for canonization or accusations of criminal behavior.”
In the second half of her talk, Kamali outlined some of the lessons Innocent may have drawn from the Veronica stories and how they may have informed England’s approach to “the question of how to manage proof of crime in a world without trial by ordeal.”
“My claim today is that [the Veronica] story’s themes map neatly onto priorities evident in proving felony in thirteenth century England,” she said. These refrains include, she argued, the growing importance of eyewitness testimony, the examination of corpses by coroners to determine cause of death, the disproportionate role of women in generating private felony prosecutions and influencing convictions, efforts to identify the murder weapons, and the many other inquest-phase fact-finding efforts that preceded the impaneling of a jury.
“At the heart of the Veronica tale is the efficacy of sight, particularly with regard to Veronica’s eyewitness testimony,” Kamali said. Veronica, it was believed, was a direct witness to — and thereby, a source of proof for — Jesus’ time on earth. The importance of visual proof was having a moment in the thirteenth century, Kamali argued.
From the sight of the Eucharist — the bread believed by the church to be, through a process known as ‘transubstantiation,’ the body of Christ — held aloft during Catholic mass, to the thousands of saints relics displayed in glass, to the growing popularity of pilgrimages to sacred sites, the Veronica story’s emphasis on sight “was part of a broader cultural trend,” Kamali said, including in criminal procedure.
“As with religious experience, so it was with proof of felony,” she said, adding, “a person bringing a private accusation of felony was expected to testify to events they had witnessed by their own sight and hearing, and a failure to do so could get their case thrown out.”
When in 1223 Durandus de Grenestona accused Henry de Ver of abducting his wife and property while he was on pilgrimage to Santiago de Compostela in modern Spain, for instance, the case was dismissed because, having been abroad, the accuser could not testify to “his hearing or sight” of the alleged events.
“In general, eyewitness testimony and visual evidence were crucial in the investigation of possible felonies,” Kamali said, noting in another example that “when a corpse was discovered under suspicious circumstances,” the coroner would often interrogate the person who discovered the body and other potential witnesses to learn what they had seen and heard.
Accounts of Veronica’s life also emphasized the importance of touch as a means of proof, she argued. It was by wiping the face of Jesus, after all, that his likeness had been imprinted on her linen cloth. Similarly, the story of Thomas, an apostle who famously doubted Christ’s resurrection until he was permitted to “place his hand in Jesus’ wounded side,” emphasized the value of laying hands on the murder victim post-mortem.
“In felony law, touch was often a crucial source of evidence,” Kamali explained. Most obviously, she noted, in England, much like in the TV show “Law & Order,” coroners played a vital role in examining the body to “confirm an accidental death or reveal the possibility of foul play.”
Women like Veronica also played a seemingly outsized role in criminal prosecution in medieval England, she said. Citing the work of USC’s Daniel Klerman, Kamali noted that “women brought nearly two-thirds of homicide private prosecutions.” While Klerman attributes this in part to women’s ineligibility for trial by combat, Kamali also suggested that “the emotional power of a widow’s appeal might have made them compelling prosecutors.”
“The coroners’ rolls … specify the use of arrows, augers, axes, belts, bolts, bows, forks, hammers, knives, lances, rods, sickles, scythes, spades, staffs, stones, and swords.”
Physical clues also took on increased importance. If Veronica’s veil became the medieval equivalent of a grainy Polaroid photograph documenting a crime scene, evidence discovered during a pre-trial inquest could be decisive. Kamali quoted a contemporary legal treatise, which argued that clues like “the tracks of a cart, the hoof-marks of horses, the footprints of men” might lead medieval gumshoes to their suspect.
Evidence of murder weapons increasingly appears in contemporary records. “The coroners’ rolls surviving from the thirteenth- and fourteenth-century Bedfordshire specify the use of arrows, augers, axes, belts, bolts, bows, forks, hammers, knives, lances, rods, sickles, scythes, spades, staffs, stones, and swords,” Kamali noted. (It seems the alleged threat by the Sheriff of Nottingham, as played by Alan Rickman in the 1991 film “Robin Hood: Prince of Thieves,” to cut out Robin’s heart “with a spoon,” may have been apocryphal.)
While contemporary accounts show that locating the murder weapon could help solve the alleged crime, so could tying the wound to a particular type of implement. Kamali cited as one of many examples the report of a coroner who had examined the body of a man named Henry who had been found dead in 1266. The medical examiner wrote that the corpse had “‘seven wounds about the heart and in the stomach apparently made with a knife, four in the head apparently made with ‘a pik’ axe and in the throat, on the chin and in the head to the brain.’”
“It would seem,” Kamali concluded, “that the examination of the wounds enabled the inquest to identify the types of weapons that had been employed.”
Much of this detective work occurred during the pre-trial investigation, she argued, saying that the “idea that England after 1215 left the issue of guilt or innocence to a self-informing jury is true, but focusing on that can obscure the role of coroners and sheriffs conducting inquests, during which they interrogated suspects, witnesses, and inquest jurors.”
In conclusion, Kamali suggested three possible takeaways. First, the use of sight, touch, material evidence, and witnesses’ interrogations, particularly during the inquest stage, ties England’s adjudicatory process not only to the themes of Veronica’s story but also to the priorities evident in continental European criminal procedure. While trial by jury in England doesn’t initially look much like the process favored by other European nations, the similarities grow when one examines official efforts to investigate and gather facts even before a jury was convened.
“[T]he idea that the English common law of felony developed post 1215 on a singular trajectory, distinct from continental Europe, is a least partly apocryphal … The true story is much more complicated and therefore, I hope, worth telling.”
“Second, just as the Veronica story combined mercy — the gentle swabbing of Jesus’ bloodied face — with vengeance, so too did English felony law combine these two impulses,” she said. While victims’ widows rigorously pursued justice for their fallen spouses, compassion was often afforded to the accused criminals, as evidenced, she said, by “the mystery of medieval England’s high felony acquittal rate, and its heavy reliance on sanctuary, abjuration, and benefit of clergy to ensure that few met their end at the gallows.”
Finally, Kamali noted that, just as other stories, however erroneous or simplified, tend to “acquire verisimilitude through ritual repetition,” so has historians’ traditional view of the origins and functioning of trial by jury in medieval England. “Like the story of Veronica herself, the idea that the English common law of felony developed post 1215 on a singular trajectory, distinct from continental Europe, is a least partly apocryphal,” she said. “The true story is much more complicated and therefore, I hope, worth telling.”
Whatever justice or mercy the 12 members of the jury currently sitting in New York ultimately deliver, they may be well advised to reflect on the legacy of the saintly Veronica, her random act of kindness, the visual proof that many believe she collected, and on the titanic Roman pontiff, Innocent III, and his steadfast devotion to her example.
Kamali with Interim Dean John Goldberg, Interim Provost John F. Manning ’85, and 300th Anniversary University Professor Martha Minow, who served as HLS dean from 2009 to 2017. Credit: Jodi Hilton
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