Property disputes and criminal charges

The faithfulness of a wife, the falsity of a monk's doctrines, the unresolved theft were all suspicions pointed to one man: these had to go to trial, to judgment. This was the role of the ordeal. It was lex paribilis, or apparens, or aperta- the 'manifest proof. ' It was a device for dealing with situations in which certain knowledge was impossible but uncertainty was intolerable.

Introduction The method of trial used in England from approximately the tenth to the twelfth century, and elsewhere in Europe from 800 A. D. until 1200A.D. , was "trial by ordeal. "2 An ordeal is a quasi-judicial practice by which a person's guilt or innocence was determined by subjecting them to a painful task. If the person completed the task unharmed, or with quick healings of the wounds suffered from the task, the person was adjudged innocent. The people considered it a judicium Dei, meaning God would help the innocent. 3 It should be noted that the trial by ordeal was used as a last, not first, resort. It was only used when other ways of discovering the truth were unavailable.

In addition, although a trial by ordeal would oftentimes have fatal consequences, the purpose was not punitive. 5 Part II of this paper discusses the culture and society during this time period, including the time frame trial by ordeal was used, the kings that reigned over England during this time, the judicial framework, and a brief overview of other countries that used this method of trial. Part III will describe each type of trial by ordeal in detail, including what the trial consisted of and describing which group of society was responsible for overseeing the trial.

Part IV will analyze which specific crimes or decisions were made through ordeals, as well as other purposes the trial by ordeal served. The end of trials by ordeal will be discussed in Part V, as well as some examples of how this practice affected America's history, and still affects other nations. II. Background A. Time frame and Location The trial by ordeal method was used in England dating from the laws of Edward the Elder, in the tenth century, until the Assizes of Henry II in the twelfth. 6 The trial by ordeal process survived until the Enlightenment in Western Europe and longer elsewhere.

One source notes that the ordeal was primarily used in small communities, and "function[ed] most comfortably in milieus where each man's personal character and standing are publicly known and affect the welfare of the rest. "8 Other societies during this time period also used this method. Examples are listed in Salic laws, France, Jerusalem, Russia, Normandy, Hindu, Ireland, German, Tournai, and Austria, to list a few. Although this paper centrally focuses on England, occasionally some examples from other countries may be provided to show the full extent of trial by ordeal.

Alternatives to Ordeal – Oaths and Testimony "The ordeal coexisted with many other forms of proof and it was often, indeed, the first task of the court to decide what manner or mode of proof should be applied. "9 The two primary alternatives to the ordeal were swearing of oaths and testimony. 10 Testimony could be in the form of a written document or through oral-in person witnesses. 11 Written testimony would oftentimes be presented to the court through charters, or similar documents, supporting property claims.

Oral testimony was also a crucial aspect of proof, especially in property disputes and criminal charges. "This is where men looked first for resolution of a charge and it seems to have been a universal principle that some deficiency in human testimony was necessary before recourse could be had to the ordeal. "13 The ordeal was most frequently used, however, when there was a lack of witnesses in cases where the charge was only a matter of general suspicion, "a charge in which not only witnesses but even a specific accuser would be lacking.

One source notes the importance of oaths in stating, The oath, the corner-stone of medieval judicial procedure, was, in some sense, an ordeal, but one which relied upon God's eventual rather than his immediate judgment. Where this kind of ordeal was employed, however, the other need not be. Exculpation by oath alone and exculpation by ordeal were mutually exclusive; hence, where oaths were unacceptable, the ordeal became a natural recourse. 15 There were three types of judicial oaths.

At the beginning stage of the litigation, parties would give their oaths to validate their assertions of fact; "they also swore oaths before embarking upon proof by an ordeal, test or duel. In addition oaths themselves constituted a form of proof, and the performance of an important oath to conclude a case could be a moment so fraught with tension as almost to constitute a 'physical test' . . . ."17 The oath could be accepted from an individual, or with the aid of oath-helpers, compurgators.

The choice between the two methods depended greatly on the nature of the offense, and more importantly, the status of the individual providing the oath. 19 The higher the oath-maker's status, the more validity his oath was given. If an accused could not produce a reputable oath-maker, or could not muster enough compurgators – the use of the oath may be inappropriate. These situations reflected poorly on the suspect's reputation. 20 If a suspect had an established poor "reputation," which was a combination of status and previous record, he may be subject to the triple ordeal, as opposed to the simple ordeal.

The triple ordeal consisted of a hot iron that weighed three times the normal weight of a simple ordeal. "One of the laws of Ethelred the Unready specified that a man of bad reputation should go to the triple ordeal, unless his lord and two other thegns swore that he had not been accused recently; then he could go to the simple ordeal. "22 The abovementioned example pertained to men who had lost their oathworthiness due to some action of their own. There were other groups of people that did not have the requisite oathworthiness, due to no fault of their own: foreigners and slaves.

"When juristic standing depended upon one's position in a web of kindred ties, bonds of lordship and dependency, blood status and ethnic territorial identity, the stranger was adrift. He hardly had a status in legal terms. "23 There are numerous references in English law to "the ordeal as the proof appropriate to 'the foreigner or friendless man. '"24 Similarly situated to the foreigner was the slave, but he was rather an internal stranger. The slave possessed such low status that he, himself, was not oathworthy.

Common practice consisted of the slave's lord vouching for the slave. 25 Although the ordeal was applicable to the free and unfree, however, there is great authority suggesting "that is was very commonly decided that compurgation (or occasionally, the duel) was the proof of the free, the ordeal of the unfree. " A few examples are as follows: [When someone is accused of killing a priest] if he is a free man, let him swear with twelve co-jurors, if unfree, let him clear himself through the twelve red-hot ploughshares.

26 If anyone breaks this peace, let them clear themselves with a twelvefold oath if they are free or noble, with the ordeal of cold water if unfree. 27 A man accused of poisoning, who denies the charge, must uphold his case by combat if he is free, or the ordeal if unfree. 28 C. Situations Calling for Ordeal as Opposed to Witnesses or Oaths There were certain circumstances where an ordeal was more likely to be used, and likewise where witnesses or oathswearing would be appropriate.

Sexual crimes, including adultery and disputed paternity, were cases usually resolved by "witnesses, there being no visible evidence on which to base a judgment. "29 The ordeal was oftentimes employed in crimes of stealth, such as murder (as distinct from homicide) and theft by night. Heresy was another area in which the ordeal was appropriate – as it was also an "invisible" crime, best addressed by God's judgment and determination. D. Oversight The clergy was primarily responsible for overseeing the trials by ordeal.

There has been speculations among various historians and writers on the topic that "[s]ince the priests of the era knew their parishioners, knew of their reputations, and heard their confessions, it [is] probably that the ordeals were rigged in some manner to yield a verdict that the priests thought were just. "30 In addition priests were subject to taking bribes to determine the outcome of the ordeal – which also lessened the validity of this method trial. E. Exemptions Certain privileged groups received exemptions from trial by ordeal of fire and water:31 clerics, Jews, and townsmen.

The particular exemption depended upon the group concerned. The Jews' exemption was based on the reasoning "that such a sacral proof, so deeply hedged about with Christian liturgy and ritual, a proof which normally required a vigil in church and prior communion, was so indelibly Christian that it would be not only unfair but also, more important in Christian eyes, virtually meaningless to apply it to non-Christians. 33 Urban exemptions, or exemptions for townsmen, developed because of the townmen's hostility towards the ordeal.

One source indicates "the rise of towns in the twelfth and thirteenth centuries was an important cause of the supposed decline of trial by ordeal in that period. "34 This could be related to the belief that the bourgeoisie is invariably progressive and rational – and thus tradesmen and townsmen would reject a practice a irrational and primitive as the ordeal. 35 III. Types of Ordeals There are seven varieties of trials by ordeal addressed in this paper, which include: . Not all of them were used in England, but are nevertheless included in this essay in order to form the most comprehensive understanding of trials by ordeal.

The two most cited types of ordeals used in England were the trial by cold water and the trial by the red-hot iron. 36 A. Trial By Water 1. Hot Water The trial by hot water consisted of the accused plunging his arm, up to his elbow, into boiling hot water, oil, or molten lead. The hand and forearm were then bandaged. After three days the bandages were removed and the arm was inspected for injuries, infections or festering. If the wounds healed, the without any injuries or infections, it was a divine indication that the man was innocent. 37 If, on the other hand, the wounds had festered, or the victim died, he was judged to be guilty.

2. Cold Water One variation of the cold water ordeal consisted of binding the suspect's hands and feet together and then throwing them into the water. If the person floated, he was guilty and if he sank he was innocent. This outcome seems counterintuitive, but water was viewed as pure, so if a person floated this indicated the water rejected the person because he was guilty. However, if the person sunk, the water had accepted the person – because they too were pure. The irony is that people would oftentimes drown due to their "purity" and innocence. A second variation consisted of the consumption of "bitter water" without harm.

Another variation involved a "ducking stool. 38 This was a "traditional method of punishment – primarily used for women – in which the accused was tied to a post and see-sawed into the water until she confessed or repented. The device was used for trying those convicted of witchcraft and noisy ale wives (or drunks). "39 Some special attention is due to alleged "witches" who often suffered this type of trial by ordeal. 40 The justification for denouncing on guilty of witchcraft if they floated arose because "[w]itches were imagined to supernaturally float above water because they had renounced baptism when entering the Devil's service.

" An interesting side note to this it that some researchers believe the reason these alleged witches floated was due to their diet – which increased the amounts of gas in their stomachs. 41 B. Trial By Fire There were two main forms the trial by fire could take. The first consists of the suspect holding red-hot iron in his hands and walking nine paces. In the second form, the suspect had to walk blindfolded on his bare feet around nine red-hot ploughshares, randomly placed on the ground. 42 If the suspect finished the ordeal unharmed, it was an indication of his innocence.

A likeness can be drawn to a familiar Old Testament Bible story where three men – Shadrach, Meshach and Abendego – were thrown in the fiery furnace. God helped the men to survive the ordeal and exit unharmed, which served as proof that their God was the true God. 43 C. Trial by Battle or Duel44 The duel, or trial by combat, was introduced from France to England after the Norman Conquest. 45 One source states in the 11th century William I introduce the judicial duel to England; it was finally abolished in 1819.

46 The trial by battle was adopted because "solemn affirmation, or swearing of oaths, in legal disputes had led to widespread perjury and because [trials by]ordeal seemed to leave too much to chance or to manipulation by priests. "47 In a trial by combat48 the suspect was issued a wager of battle or challenge. "[T]he judge ordered the parties to meet in a duel for which he established the place, time and arms; both parties had to deposit sureties for their appearance. "49 Both parties swore under oath that their assertions were truthful.

50 The suspect was then forced to fight the person who had charged him. The victor was said not to have won by his own strength, force or right, but rather because the supernatural intervened on behalf of the righteous. The "judgment of God" determined the winner. If the winner survived the combat, he might be hanged or burned for a criminal offense, or have his hand cut off and property confiscated in civil actions. 51 Trial by battle was "open to all free men and, in certain cases, even to serfs. Only ecclesiastics, women and the sick, and men under 20 or over 60 years of age could claim exemption.

"52 In addition, if one of the "parties as a woman, child, or feeble man, he or she could be represented by a champion, i. e. , a knight who was a relative or who had agreed to fight. "53 Over time, a class of professional champions formed. 54 Trials by ordeal took place in lists, or champs elos, usually in the presence of the court and high judicial and ecclesiastical dignitaries. 55 When one of the combatants was wounded or thrown, his opponent usually placed a knew on his chest and, unless asked for mercy, drove a dagger through a joint in the armour.