Friday 24 January 2014

A BIT OF AN ORDEAL - some matters pertaining to trial by ordeal in 12th century England by Elizabeth Chadwick

At the start of the 12th century, trial by ordeal was an accepted part of the judicial system and daily life.  The idea was to allow the accused to undergo a test and that God would decide the outcome. This test would involve either fire, water, combat, or character testification known as compurgation.
In ordeal by water the accused would be let down into an ordeal pit filled with water deep enough to close over his (or her) head,  and closely observed by witnesses.  If the person sank it meant the pure element of water had accepted him and he was innocent.  If he floated, then the worse for him (assuming he hadn't drowned!).  Failing the test usually meant that the accused faced mutilation as a punishment.
The ordeal pits belonged to the church and were a lucrative source of monastic income,the clergy being paid generous sums of money to bless them before ordeals.  Itinerant royal justices Geoffrey de Mandeville and Richard de Lucy paid the sum of ten shillings to have the local clergy bless ordeal pits near Bury St. Edmunds in 1166. This was at a time when the daily wage of a labourer was one penny.
Should a water ordeal pit not be to hand, then the next best thing was to dunk the accused off a bridge into a stream or brook.  The ordeal of cold water was accompanied by liturgical the chanting, a sermon and a mass, and was something of a spectacle for the local populace. The ordeal of water was a trial reserved for those at the bottom of the social pile according to a treatise on the law written down in the later 12th century. 'per aquam si fuerit rusticus.'  

Free men of status could look forward to ordeal by hot iron instead. scilicet per ferrum calidum si fuerit homo librum. Here the accused had to briefly hold or carry a hot iron.  His hand was then bandaged and sealed and was examined a few days later.  If the damage was healed, or healing cleanly, then he was deemed innocent.  If it didn't then it was mutilation again.  King William Rufus in the 11th century was a very unhappy man when 50 people accused of crimes in his forest took the ordeal of hot iron en masse and all came through it unmarked! The King swore that he would never be taken in again.  At the assize of Clarendon in 1166, Henry II chose not to believe the people who had been pronounced innocent of trial by water and banished them all from England anyway.

It does seem that there were ways to cheat at these ordeals.  Peter the Chanter, a chronicler of the late 12th century mentioned someone he knew who, on realising he was to face trial by water, prepared for it by practising breathing exercises beforehand in order to succeed.  He also mentioned how people would cultivate thick calluses on their hands in order to mitigate the effect of the hot iron ordeal.

A third way of deciding who was guilty or innocent, right or wrong was trial by combat, a system introduced by the Normans. William the Conqueror made it expressly clear that trial by combat was not to be enforced upon English litigants, who must stick to fire and water.  However, accused Normans had the choice of combat as well as the other two ordeals.  As with the water ordeal, the church got in on the act by blessing the weapons and imploring God's mercy. Trials by combat were sometimes fought by the accused themselves, as in the case of Henry II's standard bearer Henry of Essex (who lost, was spared and took the tonsure).  William Marshal is another example from the late 12th century.  Accused of having an affair with his lord's wife, he offered to fight his detractors man to man, but no one wanted to go up against him (strangely enough).

People were sometimes deemed ineligible for trial by combat.  Over sixties need not apply to fight and had to tick the fire or water box.  If a person was suffering a serious sickness or injury - such as a broken arm, or a deep cut, the same applied.

Not everyone had the military skills to make success in combat a likelihood and so professional champions were sometimes engaged to do the dirty work, but that had it its drawbacks too.  The richer you were, the better the fighter you could afford.  Indeed, if you were really rich, you could buy all the best fighters and leave the cupboard bare for your opponent!  By the end of the 11th century, a merchant guild of St. Omer in Flanders had formed a system of mutual help to allow their members to hire the best champions in the land should the need arise - a sort of insurance policy.
14thc trial by combat

Finally there was compurgation.  This wasn't so much an ordeal as a way of proving innocence.  The  accused would each gather together a band of people to swear as to his good character and innocence, having first sworn their own impeccable credentials. One might initially imagine this turning into an 'I've got more friends than you' match.  Sometimes it probably did, and sometimes people could be bought, but on the whole the system worked reasonably well.  In a society where everyone knew everyone else,a criminal was generally going to be the 'Billy no mates' person.

Gradually the above systems were mostly replaced with trial by jury.  Occasional trials by combat continued for centuries, but they weren't the norm, although the right wasn't taken off the statute books until the early 19th century.  By the 1180's trial by jury was becoming  the established method of deciding cases.  A jury was more reliable and acceptable in practise than leaving it up to God (and a few ruses) to decide.The jury, which mingled Norman and English members, was  a sound basis on which to go forward, and since it was a departure from methods on both sides, it was not seen as unduly fair to one side or the other and was accepted with equanimity.

I'm always fascinated when researching medieval lives and lifestyles. I constantly recognise myself in the people and come across emotions, situations and moments that are very familiar to me today.  And then there are times like this, when I think of trial by fire or water, or fight to the finish, when I realise that the past is a foreign field, even if too close for comfort when it comes down to it!

Elizabeth Chadwick

Suggested reading for further interest
The Birth of the English Common Law by R.C. Van Caenegem: Oxford University Press
The Treatise on the Laws and Customs of the Realm of England Commonly called Glanville edited and Translated by D. G. Hall - Oxford Medieval Texts


bnachison said...

Trial by jury wasn't originally an alternative to letting God decide the outcome through ordeal - it was just another form of it. The reason a jury's declaration was held to be the truth was not because they were assumed to be more reasonable or perceptive than ordinary people, but because when a jury was properly convened under oath, God directly guided its deliberations and led it to the true conclusion. A valid jury could not produce a false result - God wouldn't let it.

Juries weren't just used for criminal trials either -- they might be convened for any type of public matter where the truth of a situation had to be determined. Unlike modern times, where it's intended that the jury go into the case with no prior knowledge, medieval juries were assumed to be knowledgable already -- the more so, the better, since that would enable them to bring more information & understanding into their fact-finding. Domesday Book is an early example -- creating it required the use of many local juries to establish the facts-on-the-ground.

Sue Bursztynski said...

Goodness, trial by combat in the 19th century? Who would ave thought it? But some strange things have remained on the books long after everyone had forgotten them. Take witchcraft - that was, I believe, on the books until 1969!

Petrea Burchard said...

Reading your post made me wonder which I would choose, if the choice were presented to me. That's a tough one! I'm glad I don't have to figure it out.