Trial by ordeal
Trial by ordeal was an ancient judicial practice by which the guilt or innocence of the accused was determined by subjecting them to a painful, or at least an unpleasant, usually dangerous experience. In medieval Europe, like trial by combat, trial by ordeal, such as cruentation, was sometimes considered a "judgement of God" (Latin: jūdicium Deī, Old English: Godes dōm): a procedure based on the premise that God would help the innocent by performing a miracle on their behalf. The practice has much earlier roots, attested to as far back as the Code of Hammurabi and the Code of Ur-Nammu.
In pre-industrial society, the ordeal typically ranked along with the oath and witness accounts as the central means by which to reach a judicial verdict. Indeed, the term ordeal, Old English ordǣl, has the meaning of "judgment, verdict" from Proto-West Germanic uʀdailī (see German: Urteil, Dutch: oordeel), ultimately from Proto-Germanic *uzdailiją "that which is dealt out".
Priestly cooperation in trials by fire and water was forbidden by Pope Innocent III at the Fourth Council of the Lateran of 1215 and replaced by compurgation. Trials by ordeal became rarer over the Late Middle Ages, but the practice was not discontinued until the 16th century. Certain trials by ordeal would continue to be used into the 17th century in witch-hunts.[1]
English common law[edit]
The ordeals of fire and water in England likely have their origin in Frankish tradition, as the earliest mention of the ordeal of the cauldron is in the first recension of the Salic Law in 510.[30] Trial by cauldron was an ancient Frankish custom used against both freedmen and slaves in cases of theft, false witness and contempt of court, where the accused was made to plunge their right hand into a boiling cauldron and pull out a ring.[31] As Frankish influence spread throughout Europe, ordeal by cauldron spread to neighboring societies.[32]
The earliest references of ordeal by cauldron in the British Isles occurs in Irish law in the seventh century, but it is unlikely that this tradition shares roots with the Frankish tradition that is likely the source of trial by fire and water among the Anglo-Saxons and later the Normans in England.[33] The laws of Ine, King of the West Saxons, produced around 690, contains the earliest reference to ordeal in Anglo-Saxon law; however, this is the last and only mention of ordeal in Anglo-Saxon England until the 10th century.[34]
After the Conquest of 1066, the Old English customs of proof were repeated anew and in more detailed fashion by the Normans, but the only notable innovation of the ordeal by the conquerors was the introduction of the trial by battle.[35] There were, however, minor conflicts between the customs of the Anglo-Saxons and the customs of the Normans that were typically resolved in ways that favored the Normans.[36] In a famous story from Eadmer's Historia novorum in Anglia, William Rufus expresses skepticism about the ordeal after 50 men accused of forest offenses were exonerated by the ordeal of hot iron. In this story, Rufus states that he will take judgment from God's hands into his own.[37] However, this skepticism was not universally shared by the intellectuals of the day, and Eadmer depicts Rufus as irreligious for rejecting the legitimacy of the ordeal.[38]
The use of the ordeal in medieval England was very sensitive to status and reputation in the community. The laws of Canute distinguish between "men of good repute" who were able to clear themselves by their own oath, "untrustworthy men" who required compurgators, and untrustworthy men who cannot find compurgators who must go to the ordeal. One of the laws of Ethelred the Unready declared that untrustworthy men were to be sent to the triple ordeal, that is, an ordeal of hot iron where the iron is three times heavier than that used in the simple ordeal, unless his lord and two other knights swear that he has not been accused of a crime recently, in which case he would be sent to an ordinary ordeal of hot iron.[39]
Unlike other European societies, the English rarely employed the ordeal in non-criminal proceedings.[40] The mandatory use of the ordeal in certain criminal proceedings appears to date from the Assize of Clarendon in 1166.[41] Prior to then, compurgation was the most usual method of proof, and the ordeal was used in cases where there was some presumption of guilt against the accused or when the accused was bound to fail in compurgation.[42] A distinction was made between those accused fama publica (by public outcry) and those accused on the basis of specific facts. Those accused fama publica were able to exculpate themselves by means of compurgation, whereas those accused on the basis of specific facts and those who were thought to have bad character were made to undergo the ordeal.[43]
The Assize of Clarendon declared that all those said by a jury of presentment to be "accused or notoriously suspect" of robbery, thievery, or murder or of receiving anyone who had committed such a wrong were to be put to the ordeal of water.[41] These juries of presentment were the hundred juries and vills, and these groups, in effect, made the intermediate decision of whether an accused person would face the more final judgment of the ordeal. These bodies rendered "verdicts" of either suspected or not suspected. In cases where the defendant was accused on the basis of one or more specific facts, the defendant was sent to the ordeal upon the verdict of the hundred jury alone. In cases where the defendant was accused fama publica, the agreement of the hundred jurors and the vills as to the defendant's suspicion was required to send him to the ordeal.[43] However, the intermediate accusation of the juries could still be considered final in some sense as any person who was accused of murder by the juries was required to leave the realm even if he was exonerated by the ordeal.[44]
In 1215, clergy were forbidden to participate in ordeals by the Fourth Lateran Council. The English plea rolls contain no cases of trial by ordeal after 1219, when Henry III recognized its abolition.[45]
Suppression[edit]
Popes were generally opposed to ordeals, although there are some apocryphal accounts describing their cooperation with the practice.[1] At first there was no general decree against ordeals, and they were only declared unlawful in individual cases.[1] Eventually Pope Innocent III in Fourth Council of the Lateran (1215) promulgated a canon forbidding blessing of participants before ordeals.[1] This decision was followed by further prohibitions by synods in thirteenth and fourteenth centuries.[1] The Holy Roman Emperor Frederick II (1194–1250) was the first king who explicitly outlawed trials by ordeal as they were considered irrational (Constitutions of Melfi).[46] In England, things started to change with King Henry III (1220).
From the twelfth century, the ordeals started to be generally disapproved and they were discontinued during the fourteenth and fifteenth centuries. Although papal authority had stood against ordeals generally since Innocent III, the interplay of canon and common law was such that a clear anathema on the practice given in 1215 would have unintended consequences and overstepped the bounds of ecclesiastical authority. Secular authorities might deem someone guilty if they relied on clerical authority to avoid an ordeal, and certain "occult" crimes (those to which there would not normally be witnesses) could not be effectively prosecuted in the legal system of the time by any other means than ordeal. Innocent III's prohibition of clerical participation in trial by ordeal was essentially a call to action for secular authorities to move away from it, a process which took centuries to complete.[47]
In the sixteenth and seventeenth centuries some kinds of ordeals were once again used in witch-hunts, although these were actually intended more as a physical test of whether the accused would float, rather than an ordeal invoking divine intervention to prove or disprove guilt, i.e., a witch floated by the nature of a witch, not because God intervened and caused her to float, demonstrating her guilt.[1]
Modern theories[edit]
According to a theory put forward by economics professor Peter Leeson, trial by ordeal may have been effective at sorting the guilty from the innocent.[48] On the assumption that defendants were believers in divine intervention for the innocent, then only the truly innocent would choose to endure a trial; guilty defendants would confess or settle cases instead. Therefore, the theory goes, church and judicial authorities could routinely rig ordeals so that the participants—presumably innocent—could pass them.[49] To support this theory, Leeson points to the great latitude given to the priests in administering the ordeal and interpreting the results of the ordeal. He also points to the overall high exoneration rate of accused persons undergoing the ordeal, when intuitively one would expect a very high proportion of people carrying a red hot iron to be badly burned and thus fail the ordeal.[48] Peter Brown explains the persistence and eventual withering of the ordeal by stating that it helped promote consensus in a society where people lived in close quarters and there was little centralized power. In a world where "the sacred penetrated into the chinks of the profane and vice-versa" the ordeal was a "controlled miracle" that served as a point of consensus when one of the greatest dangers to the community was feud.[50] From this analysis, Brown argues that the increasing authoritativeness of the state lessened the need and desire for the ordeal as an instrument of consensus, which ultimately led to its disappearance.[51]