Crimes Punished and Purposes Served

The acts subject to trial by ordeal include both civil and criminal. However, "the overwhelming proportion of ordeal evidence points to its use for crime alone, from the tenth century right through to . . . the twelfth century. England apparently differed from its neighbors preferring to close property disputes with a judicial oath rather than an ordeal. "69 The acts include, but are not limited to: adultery, paternity, lechery, treason, sodomy, carnal relations with animals, incest, heresy, theft, forgery, disputes over property or status, murder, ordinary criminal charges, fire-raising, and witchcraft.

A number of these will be discussed in detail in the following section. A. Sexual Issues Ordeals were oftentimes used to try cases of adultery. Most of the cases involved the men accusing their wives of adultery, and in turn the wives would have to prove themselves faithful by successfully completing an ordeal. An example is provided in the law codes from the thirteenth century: "If a woman's husband accuses her of adultery, she must clear herself with the iron. "70 There were instances, however, where men would be subject to similar tests for sexual misconduct.

For example, "[t]he Norwegian provincial law, known as the Frostathing law . . . proscribes that 'if a man is charged with having carnal dealings with cattle of any sort, which is forbidden to all Christians, the bailiff shall bring action against him with witnesses to the fact of the common rumour; and let him carry the hot iron or go into outlawry. '" Norwegian law also proscribes the ordeal against men for sodomy and incest charges. 71 Ordeals were also used to prove cases of paternity. 72 Royal lineage, as well as commoners inheritance was determined by ordeals.

At this time in history, it was common for men to have concubines – second-class wives with some rights in customary law – which made paternity issues even more complicated and important, especially for inheritance purposes. B. Determining the Orthodoxy of Religious Beliefs/Dramatic Conversion There are numerous cases of individuals willing to undergo an ordeal to "prove" the truth of their beliefs and professions. One source states: [t]he very earliest extant account of an ordeal, that by Gregory of Tours, describes a trial that was intended to decide between Arian and Catholic doctrine.

Several centuries later, in the mid-ninth century, the Saxon monk Gottschalk, who was suspected of heresy because of his doctrine of predestination, offered to undergo an elaborate form of ordeal by fire and water 'in order, in this way, to prove the truth of his profession. 74 The testing of true religious belief by fire was first accounted in the Bible when Shadrach, Meshach and Abednego were thrown into fiery furnace. The reason for this was that "deos tuos non colunt – 'they do not worship your gods' – and the aftermath was that the king recognized the supremacy of their [G]od. "75 C. Property Disputes

It should be noted that "England is distinctive in relation to the ordeal of fire and water, since it appears that they were almost never employed in disputes concerning property, or 'civil cases,' was they might be called. Before the Conquest testimony and the oath, after the Conquest testimony, the oath, and the duel must have determined such cases. " D. Theft The use of the ordeal was oftentimes used for proof in theft accusations. An accuser would vouch his reputation against that of a suspect before God. In order to put the suspect before the law, the accuser had to make a prima facie showing.

The court would hear the oral argument before deciding on the details of the accuser's fore-oath, in addition to hearing the accused himself. 78 Other considerations included the gravity of the alleged offense, the social rank of the parties, and most importantly the reputation among the community – especially of the accused. 79 E. Heresy Cases of heresy were oftentimes tried by ordeals. The most frightening aspect of heresy was its invisible nature. It was difficult for Catholics to know if their neighbors were entertaining heretical thoughts.

"[The] creeping, nightmarish quality of heresy, as apprehended by the orthodox, created a mood similar to that of the with persecution of the sixteenth and seventeenth centuries or McCarthyism in the twentieth. "80 Although the extreme nature of the ordeal by fire was appropriately fit to the charge, it had the disadvantage of not providing an immediate result. There was a three day waiting period before the results were determined, and "[f]or an angry orthodox crowd trial by cold water was much more satisfactory" – providing an immediate result.

However, if the suspect floated and was thus "guilty", he may suffer at the hands of the angry mob – as opposed to receiving a judicial sentence. F. Crimes A treatise written around 1188 A. D. entitled Glanville discusses the criminal cases which the king's justices might encounter. These issues include: treason, concealment of treasure trove, homicide, arson, robbery, rape and falsifying. There were two distinct procedural patterns. In the first, no specific accuser is present, but the case rests upon public notoriety.

In the second a specific accuser appeals the accused. In the latter, the issue is usually determined by battle. 81 VI. End of Ordeals The demise of the ordeal was not due to man's dissatisfaction with its workings. To the contrary, there is evidence that the ordeal was spreading and flourishing in the eleventh, twelfth and thirteenth centuries. 82 The use of trial by ordeal in the English common law began to decline into disuse with the Assize of Clarendon established by Henry II. The Assize of Clarendon and Northampton,

whose criminal provisions created such a flurry of judicial activity in 1166 and 1176, enact as follows: anyone accused of murder, robbery, or other serious crimes by a jury of twelve lawful men of the hundred, and by the oath of four men from each vill in the hundred, should go to the ordeal of cold water; if they failed, they would be mutilated; if there were cleared the could find pledges 'unless they are accused of murder or some other foul felony by the commune of the county and the law-worthy knights of the country; if they are accused in this way, even if they are cleared by the ordeal of water, nevertheless they must quit the realm within forty days, taking their chattels with them. '83 Most scholars interpret this provision as an indication of Henry II's lack of faith in the ordeal.

The underlying rationale of the Assize of Clarendon is that "[a] man whose reputation is completely besmirched and who has been accused on very powerful grounds, must go to the ordeal. Failure means mutilation or death. But success at the ordeal does not enable him to leave the court without a stain on his character. His character is already stained. "84However, trials by ordeal were still used, judicially or extrajudicially, "in cases where no other proof was thought possible, as in the case of secret and unwitnessed murders or supernaturally concealed crimes such as witchcraft. "85 There was a growing unease in ecclesiastical circles on whether it was right to use the ordeal and as a result in 1215, the Fourth Lateran Council forbade the Roman Catholic clergy from administering the ordeals.

In light of the clergy's pivotal role in the trial by ordeal process, this prohibition greatly impeded the use of the practice. Finally in 1220, during the reign of Henry III, trial by ordeal was abolished in England and replaced with trial by jury in every case that was formerly tried by ordeal. 86 The practice of dunking for witchcraft was used well into the seventeenth century. 87 "When the witch persecutions died out at the end of the seventeenth century, the last vestiges of ordeal ended with them. "88 Over time, other monarchies through Europe followed England's lead in abolishing trial by ordeal. "In Denmark and England the abolition of trial by ordeal was recognized in royal ordinances of 1216 and 1219 respectively.

"89 Other countries which abolished trial by ordeal include: Scotland90 (1230); Sicily91 (1231); Sweden (supposedly abolished during the reign of Birger Jarl, the regent of Sweden from 1248-1266, but the prohibition was repeated in Helsingeland in 132092); Norway93 (omitted from the provincial law which were codified by Magnus VI in 1274); France (unilateral ordeals were a rarity in the thirteenth century); and in the Spanish kingdoms ("James I of Aragon (1213-76) 'can be considered the chief enemy of ordeals in the peninsula. '"). 94 Even after the demise of the trial by ordeal, there were certain cultures and countries that continued to use this method. In England, one writer notes, "[t]he same Lateran Council that outlawed in the ordeal one type of controlled miracle approved another by sanctioning the doctrine of transubstantiation Thus the twelfth century still proceeded a trickle of approving exempla about the ordeal.

"95 There were also cited cases of men who were so confident of their innocence, or "the justice of their cause," that they would offer "to submit to the judgment of God by the hot iron. "96 One source reports the fact that until recently the ordeal was practiced in many parts of Asia and Africa. 97 Also, when an American reads about this ancient form of trial, one cannot help but to think about the Salem witch trials – where similar methods of determining guilt, such as rock presses, were used. There was also underlying belief that God would judge the guilt or innocence of a suspected witch.

Conclusion

Trial by ordeal, as "' an ancient . . . mode of trial, in which a suspected person was subjected to some physical test fraught with danger, . . . the result being regarded as the immediate judgment of the Diety'"98 is a fascinating subject. The critics of the jury system may argue that trial by jury is no more error-proof and as useful as the trial by ordeal – both leaving the ultimate determination to God, rather than rationality and the truth. 99 An advantage the ordeal had over the jury system is the res judiciata, or finality, established by trial by ordeal. "The conclusion of cases by God's judgment gives the court's verdict a better chance of lasting acceptance, for God is uniquely qualified to settle authoritatively just those cases most difficult for human tribunals.