4 Trial by Ordeal: Paul R. Hyams The Key to Proof in the Early Common Law Jn ewelfthcentury England no regular legal means existed ro challenge a court decision, duly made inthe propet form, simply on the ‘round that it was the wrong decision. The maty disgrinted litigants could take the matter further only by self-help, or by alleging that the court holder had denied them justice (defectusiastiie) or had wilflly ‘mishandled the proceedings (falsum or inustum indicum). Bitherallega- tion began new proceedings before a royal court? where the holder or suitors ofthe inferior court might have to be fought, i il dc Even ate; Her Ps los ba inodied van ‘of trial by jury, the common law hardly recognized remedial a against ercor? Certainly this is a severe deficiency for any system of aw with pretensions to rationality, but final proof in early aw, a clacwhere, was generally left to the judgment of God. Because God wat by definition impeccable, His judgments appeared erroneous to honest ‘men only when there had been malfeasance on the part of thore who purported to question God and interpret His verdict—that is, the judge {nd ators Genie er was imposible nde could ben ppl to higher authority. ‘The functioning of trial by ordeal, that most notorious form of God's judgment, isa subject of keen intrinsic interest. Its reexamination, to= sether with that of is legacy to the early common law, is long overdue. {Te if questions invlted have been unwaraaiyoverhadowed the quest for the mystical origins ofthe Englah jury. Many English ‘egal historians have cusoniy dims the ordeal a ilevant, because "hay bee thinking around he sje of tha ppe on nd of since about 1970, a ave vere a mumber of tals and larson er sof the Aan The ads coleagos and questone who have conerl eon an enghaneé mein dere yh Se eemey betel ha om whew on a op at kat acne the ip sf my wes Ea Mave Tipton be ators orl won cd fone” ne 7 Ene Me iota tard es ne yp tet ‘ity pat rom hie flow teil fr Engi lave of here er ‘epiite rata cerdatcenre cies STF. Mckee atin, Edd eu Cine nw (Cag 90) 37 aoe ko El inn appa re pr ny. Frage Lud Gani ron nti ‘ou andr Chrome,” sl an Eon Ger Soe i Po ‘reveals exact Carolingian parallels, : sere 99 ae 90 ‘Trial by Ordeal 9 its disappearance apparently coincided with the very beginniag of that modem “scientific” law which was their major concer. This neglect is unfortunate. The functioning and demise of the old proofs actually shaped the classical common law in multifarious ways. Western Europe's transformation ofthe old ordeals into the seeds of ts modern, supposedly rational systems involved choices about the direction of change whose Consequences sill affect us today, in both the Anglo-American and the ‘Continental systems.> The changes involved loss a5, well as gain, For ‘example, the failure of westem European courts until quite ceceatly (0 appreciate the community roles and standing of the individuals who ‘came before them, outside the specific facts of the case, party resulted ffom the excsion of the ordeal* A fuller understanding of medieval proofs promises rather more than mere exposition of the peculiar institu- tions of English law six hundred years ago. “Trial by ordeal is a very widespread institution, known and practiced ina wide range of premodern societies. Any attempt to explain is history in England can therefore draw on a vast body of comparative material English hypotheses must also consider the ordeals history inthe other pars of western Christendom, where modes of proof based on the judg- ent of God predominated between (roughly) the end of the Western Roman Empire in, say, the fifth century, and the cultural renaissance of the West in the High Middle Ages. shal frst offer a posible model forthe working ofthe eary medieval ‘ordeal, based on the assumption that so ubiquitous an institution must hhave made sense within its time and context. From this sketch of the “world of the ordeal” I can try to explain the transformation of the ‘old ordeals ducing the High Middle Ages.* Within the rough pattern of hange this reveals each area and jurisdiction of course deve ts own pace and in its own way. England is an interesting case. ‘Many historians see the Anglo-Norman state as a cultural lagard in the context ofthe twelfth-century renaissance.* Ye they generally agree that its legal advances began relatively early. Thus, because the cleventh- century starting point was a legal and political system not too far out of 1. The demise ofthe oneal was in one respecte wimph of adversary proses over ces foras of lal inquiry. Does this nor help explain why the comon iw long Show enc inet of wines and osc ven Sapa ve maton extos octal rigs? 15... Mibom, The Legal Framework of English Fudalm (Cambie, 1976. pins he imports offre of prot fox he udstndig of Cah eel le ee re ira i ly sw ico ich psd Rly oto oficial we ae 213. Tis ding hem fom "new (ordi the Jury, and fom ont and ck, I coer fos used many north z the Twelth Centry Renisanc,” fis Mate! Henan (Ono 972 chap. 9a nigerline withthe rest of pos-Carolingian Europe,” the English experience furnishes a reasonably fir fst test to the approach canvassed in the model To my summary model of large-scale European metamorphosis | therefore append sunmary narrative ofthe development of ideas and teshniques of proof in Engh law beoween about the year 1900 and the tmid-hiteenth century. ‘Fal preliminary is necessary: to specify how “ordeal” will be used inhi pepe to ny what unite the group of prac ude A dit tary debrivon ranean ancient. «mode of tril in which a suspected pergon was subjected fo some physical est fraught with danger, the fesule being regarded a6 the immediate judgment of the Deity." This tnects our purpose, providing that we nore that ordeals were used in civil shies too The te sed varied considerebly in nate, eis helped, Tinguish between those faced by a single proband (unilateral ordeals) and Shlteral ordeals such a the judicial duct, which pitted opponents tne anothen'® Mose scholars would further distinguish adil oats. In arly ligation the parties not only offered oaths to validate their aser- tions of fact they also swore oaths before embarking upon proof by an Srdeah, test or duel. ination, oaths themselves constituted a form of proot,and’che performance of an important oath to conclude a case ould be a moment s0 fraught with tension at almost to constitute “physical test” within the ordeal definition quoted above. For example ‘ane simoniae bishop discovered, when challenged by Hildebrand at 2 Councl in the roses, that he was totally unable fo pronounce the simple formala Gloria ioe patie sprit sancto™ Although proo-oaths ae perhaps arf genuine ode cy ae a 09 ‘lowely related to be Ianored here. ‘Unilateral ordeals, oaths, and duels share one important factor. All iver methods ef proot purport: work by revesling God's judgment. ‘The proof oath is no exception. By the standard theory that rare ext testom Dew invocare, those sweating understood that God and the Saint on whose relics the oath was made would be their witnesses, who snpbel, “Observasons on English Government from the Tenth to the welt (Cenucys" onsets ofthe Royal Historical Soler, sth x25 (19791 39-54. 1 Siter Oxford Engh Dictionary, ded, cored; bute below, an: 3400 the phrase fraught wi dang” The exalent paper of J M. Roberts, “Oaths Autonomic ‘Ondcals and ower” Americen Anthropologist 67 (1965): 186-205, star from a defi ton to spec aboot" and Innocence "Seco, at 43 fo the dtnsion becween civil and criminal law Tou Theve ra at erature HC. Len, Superstition and Force 8 cl (Pride, sys), oni te staring pot one relevant chapter reiued at The Ordea E Fete (Phldsphiae 19758 H. Nowarp, Gotentlsudion (Munich, 1956) 8 come prchensne and ineigent vere. A pent deal of valuable mail i semble in La Drone, Recel dela Soc Jean Bodin, vol 17 (Brae 1969) . Ti As Steeple, “Hogh of Cluny and the Fdebrandine Miracle Taion” Réoue Benen 7 (967) Jai65, at 356"; and LS. Robinson, “The Friendship Netware el ren i ry (78 oti he rsd sh ta ele wy ftom et 060 ate the ‘nen «ould and would punish any perjury.'? Lawsuits chat came to proct almost always concluded, then, with some act that conveyed graphically the idea that the final say in the mareer resided with God, whose ven- seance could enforce His judgment. To explore the ramifications of the ‘common rationale of these forms of proof, we begin with unilateral ordeals. The two best evidenced in England were the cold water, into which a proband was lowered to see if it would “receive” him, and the red-hot iron, which the proband carried, his hands then being bound up and examined later co see how they were healing. {Letus fret count an actual criminal rial from southwestern England in the las decade ofthe tenth century A slave arrested for an unspec- fed erime was brought to trial before Eade the reeve at Calne, 2 foyal hundred vil in Wiluhie, and sentenced to the ordeal by the hot iron. A freeman of good reputation with ne crnnal cord would ave expected t0 dear himsalf by tome kind of oath, but this option was hardly open to a slave without fee, law-worthy oath helpers:™ Nevertheless, out informant, the Winchester monk Wlfstan Cantor, though the judgment harsh. Eadie ordered that the slave be kept in cestody unt fis master odode Anown fecgn macant ef Winchexes cul be prs to witness the proot Flodosld huried tothe spot and, being paruculach fond of this loyal slave, offered him to the reve together witha pound of pure silver in rerum for the remission of the intustum iudihm. ‘The slave's own relatives added ther pleas and proffers too, ll to no aval Here, far fom Wirchester, the proud cecve was all-powerful, and even Flodoald had litle influence. The arrogant Eadric had his ten bank ap hf nul igh and order» evs tha wa tomary. At the appropriate moment inthe ritual, the slave lifted the fon ad experienced immediate, searing pain—apparcnly created by tule conscience. Nevertheless, the prescribed procedure was followed: the hand was bound for reexamination after three days. By now Plodosld despaired, and in his distress turned to prayer asa last resort, offering the 12 Yvonne Bonga, Recherches su les cours laques du Xe au Xie stl (Pasi t9@hh pe tos Hs Magee Boule “Apr a sens ds pees ds la France Cootumis du moyen ig in La presve,p. abs; Nicole Heman Mscad, Les relies des taints: formation eouumitre Gan dr (Pa, 1975) pp. 285-661, Sprston and Force, pres examples of oats a ora. "3 Otte foms known in England cade wl by mor (corsncd) ad vous es nvlng ping wate Th and wl tf ay ae bon sly wiped in Popular ode oui major centers "4, ithe! Monac Breioaton Vise Bee Wied et Wiftani Cantos neato retin de & Sting ed, Axaie Campbel (Zieh, 1950), pp. vso~s4 (nee oyn43alD. Whitelol“Walftan Cane and AngoSacon Lam io Node Arle, Sidi 8. Earned A Orch (The Hage, 196) 87-33 oles vale 15. Cl blow, at sand acompenying text. rule Haseena iis one eat, 1950. 188,» 2, ces an ordeal when Vodel sie sana orem” 25> ie A trav94 Paul R. Hyams slave to St. Swithin if God could be persuaded to preserve him. On the third day after the ordeal, the court reassembled to determine the result. ‘The bandages were unwrapped and a clean (mundus) hand cevealed, The astounded reeve and his cronies had to admit: this man i not gulty {gb teen Blame, no cine in hi! The ra of on lookes were even more surprise, for they could clatiy discern the signe of gui, the pus and decay on the hand. Judgment had, however, been declared, With the unexpected change of fortane, the atmosphere of the court shifted abruptly. Eadie and fis crew sunk away, shamed by 2 judgment that condemned them and vindicated the accused slave: Measr wile, St. Swithin at Winchester received an extra slave, who surely lived happily ever afer, OF course this account comes from a poem in honor of St. Swithin. Although all the story's details cannot be guaranted, they nevereless fic without strain into what we learn from the laws and ritals of the time Despite the very unusual miraclos denouement, te ade ‘certainly contains some general lessons. The poem vividiy portrays the rai ec fel iN red fomaln dt assumed here. Wullstan Cantor focuses rightly onthe interplay of person within the community the slave and his supporter, the rere and his, the audience in general Everything centered on the rece: As the our’ president, he could bully and manipulate toward the judgment he desired. Whatever his motive on this occasion, he orchestatel pro. cxedings to establish the accused's guile and punish him in an awesome ‘manoet. This too was intended as'a leseon for the whole community, ‘whicl would know better in the forure what he expected of i But the planned drama miscarried, and the public rebuff undermined Eade’: ‘vn position. Local officals lke a reeve must exercise power with com, tinuous succes if they are to retain it. Eadic's failure was dramatized by the exceptional emotional charge in the crowd on that thied day. All reseat knew what had been expected. When it failed to matrilice, the eve consequently los face and authority. This moment of truth was the rand culmination of the tral, when the court formally perceived the result ofthe ordeal and embodied it in a final judgment. These thee high spots—the concluding decision, the performance ofthe ordeal and reeves iniusto tudicium—were separated by public debate ofthe issues atthe court hearings. Meanwhile, the less dramatic negotiations bberween the slave's party and the reve, mostly conducted outside cout, ‘were equally important. The story makes lite sense until we realize that the affair was as much a quasi-politeal episode as a judicial ine ‘icy. From a possibly tavial starting point, ie eventually concerned power relationships that affected the whole community served by Calne’: funded coure, 17. Thisnsight ine practice an inporant addon to our knowledge, pace Whieock, sigan Canton” p. 88 1 Tid p. 8 fy concldes that he fer was "legal composition” and not bate- faced avempt to bike Thi Se ditncion tno imporane hem prefer ere pal tc Tiial by Ordeal 95 This anecdote no more establishes a general pattern for early medieval law than the arrival ofthe first swallow proves that an English summer will follow. But it does indicate a pattern of actual behavior that may recut, Thus prompted, one can now try to frame a model that answers two basic questions. Into what kind of world caa the ordeal comfortably fit? And what kind of law would suit that world? The ordeal, primarily a device of small communities, functions most ‘comfortably in milcus where each man's personal character and standing, are publicly known and affect che welfare of the rest. The community is ‘ot too tiny for variety of interest, daily occupations, and so on.!® No ‘one man can dominate it on personality alone, certainly not so completely 48 to settle all disputes without challenge. Yet the harsh realities of and coopers eto such tthe mininrton of opel culture or communal defense, and thus entail some fncthod of enforcing 4 communal will against dissenters. Ifthe level of acceptable violence seer high, influential members remain keenly aware of the premium on omenea ind are prepared tac nectar or ane. They ‘can be hardheaded, quite clear-sghted about individual up inter- ‘ts and accustomed, as farmers or warriors, fo eying on her courage and common sense 'At the same time, in their world the sacred and profane are everywhere inextricably intertwined” No modern western distinction between the natural and supernatural inhibits ther efforts to survive and prosper. They naturally seek assistance when approp from God and Hi saints or demons andthe ike. They kep the powder ddry—of course—but accept the possibilty of triraculous Intervention a8 feasible, indeed natural, and perhaps inthe last resort, expected. Miracu. lous forces beyond human reach exist always asa reserve explanation for events otherwise inexplicable. For some, no doubt, the divine means considerably more, but all agree on the nccessyy of the reserve, because everything that happens must have a cause.>" The apparently inexplicable must somehow be integrated into the common thought-world. The most spectacular occurrence must be described so as not to contravene the accepted basic rules of existence. This “secondary elaboration” tames and slows down the pace of fundamental change. It sometimes seems a8, £9. Gavin 1 Langmuig “Community and Legal Change in Capetian Franc” French Historical Studies 6 1970) 275-86, ake imaginative we of Concentric commun! thereof dip, coun ee 1A Maiev Change” Daedalus 104 “Grgoey Vis explicit satement, quoted by Morin “Jodcum Deis The Siplcanee ofthe Grea I te lerxth Cx Stes Caro Hr 1 i975 3st 0, Today when wen loge bev that creyching hs 2 mem cn fen ne cca 3 peo-esaaton though comer fom EE" Evens Pitcher: Wichowf, Oracle and Magic mong the Aesnde (Orford 1987) pe chap eRe 7 31% Ck Mary Devgan th ‘Waco Conesoe ond Actzaons'ASA Monographs rok 9 andor, 1972), {todscon, for exponon and Len, Sperone Farce. 350 for xa