24 Parallel to the hierarchy of proof, a hierarchy of types of procedure was established in medieval theory. Only the most serious criminal cases demanded the most perfect of proof, “plenissima, induhitata, luce meridiana clarior.” In ordinary civil cases, the verdict could be based onprobatio plena-, in summary civil cases, even a probatio semiplena would suffice. Besides the actual hierarchy of proof, the concept of notoriety was of much importance to the medieval legal theory. Notoriety, an original product of canon lawscholarship with no precedent in Roman law, rendered a fact incontestable in the sense that no counterevidence could be produced against it; thus, hierarchically, notoriety was above proof proper. Furthermore, declaring a fact notorious accelerated the procedure, for no appeal was allowed. The concept of notoriety had a practical function in the internal legal order of the church: when it came to typical crimes committed by the clergy, such as concubinage, or other typical crimes of the time, like usury and heresy, it rendered ecclesiastical discipline easier. Using the concept of notoriety, the church ventured to seek measures in order to be able to act rapidly whenever that was necessary to avoid scandals. Several categories of notoriety were distinguished, the most important being notoriumfacti and notorium iuris}'^ The former was characterized by its publicity: it meant that the fact was plain to see “for the eyes of all” {oculis omnium), for instance a crime committed in front of the court. Notoriumfacti was the most perfect of all proof.^- Of the subcategories of the latter, the most important was a confession given in court.53 In practical judicial life, a confession - very high on the evidentiary scale, “probatio probatissima” - came to play an extremely important role. According to Tancredus, a confession needed to be: “Maior, sponte, sciens, contra se, ubi ius sit, et hostis, certum, nec natura, favor, lis, iusve repugnet.”^^ Ibid. pp. 30-31. 52 Ibid. pp. 32-33, 36-37. Expressions “notum, manifestum, publicum, evidens and notorium" all refer to the same concept of notoriety. The concept of ‘\famapublica" was at first (Gratian, Alexander III) conceived of as part of the concept of notoriety, but during the twelfth century it came to have a meaning of its own: in cases where “famapublica" was at hand, an ordinary judicial procedure was still needed; in cases of notoriety {“publicum ex evidentia") no ordinary, lengthy judicial measures were needed. Ibid. pp. 36, 39-40. On the concept of notoriety, see also Inger 1976 (a) pp. 24-46. 5> Among these is presumption {notorium praesumptionis), of which again several subcategories were established in medieval doctrine. Depending on the kind of presumption, sometimes counterevidence could be produced, and some times not. Lévv 1939 pp. 62-66. 52 Notoriumfacti was further divided into subdivisions according to the duration of the deed (permanent/momentary), ibid. pp. 45-53. 55 Ibid. pp. 53-61. 5-' Ibid. p. 55.
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