Trial by Ordeal

Trial by Ordeal took many forms in the ancient world and the Middle Ages. In a sense, it was an appeal to God to reveal the culprit. In Old English it was called Godes dōm, "God's doom/judgement"; in Latin it was known as jūdicium Deī.

One simple method was cruentation, from Latin ius cruentationis, "law of bleeding," used in Germanic law. The belief behind cruentation was that the corpse of a murder victim would indicate the presence of its murderer by moving or spouting blood. It was used into the 18th century, even though after the Lutheran Reformation the application of a religious test in law was rejected in Denmark and Norway.

Another approach to Trial by Ordeal was the idea that God would not allow an innocent person to suffer. The accused would plunge his or her hands into boiling water, or carry red hot iron. Ordeal by fire was also tried, with the person walking at least three paces or walking across nine feet of coals. Of course this would produce burns, but they would be bandaged and re-examined in three days' time. A priest would then judge whether God had chosen to heal the innocent person's burns or let the guilty person's worsen and fester.

In Constantinople, before Michael VIII Paleologos (1224 - 1282) became emperor, he was accused of treason by Emperor John III Vatatzes and was ordered to go through trial by fire. He said he would hold the red-hot iron if the metropolitan bishop Phokas would take the hot iron from the altar with his own hands and place it in Michael's. This the bishop refused to do; the idea that innocents would not also be harmed by red-hot iron helped to discredit the practice. In fact, when Michael became emperor, he abolished the practice.

Pope Innocent III at the Lateran Council of 1215 forbade priests to take part in such things, and promoted compurgation instead.

The Byzantine Empire got the idea of trial by ordeal from the West, as the Crusades brought Western Europe ideas to Constantinople. One example they would have witnessed was the French mystic Peter Bartholomew, who submitted himself to ordeal by fire to prove his sincerity about a claim considered outlandish by others. What was he trying to prove, and how did it turn out? I'll tell you tomorrow.

The Assize of Clarendon

King Henry II of England had problems. The period known as The Anarchy was over, but the mercenaries employed during it were causing trouble in England now that no one was paying them. "Crusades Fever" was rampant, and aristocrats were leaving their lands for years at a time to liberate the Holy Land; when they returned, they might find someone else farming their estates without permission—and no office of land management that kept records as to who was the rightful owner. And, of course, the Church was doing as it pleased regarding the law, exercising sole authority over its clergy rather than allow them to be bound by civil laws.

Henry needed to put some order onto this chaos. We have already seen (later in his reign) the Assize of Arms. The major instrument of establishing new policies was the Assize of Clarendon in 1166. It was an attempt to establish the rule of law based on evidence and analysis rather than Trial by Ordeal, and to rest final authority with the Crown and its representatives.

It made certain that sheriffs kept records of any criminals in their territories, and that sheriffs would notify other sheriffs of criminals that fled in their direction, to be captured and held. A cleric who was found guilty in an ecclesiastical court was stripped of his office and turned over to the civil court. Compurgation was no longer sufficient as a defense in a felony. Sheriffs had to respond to requests by the "itinerant justices" (the "justices in eyre") sent around by the king.

One important innovation that modern law historians make note of is the first part of Clarendon:

1. In the first place the aforesaid king Henry, by thee counsel of all his barons, for the preservation of peace and the observing of justice, has decreed that an inquest shall be made throughout the separate counties, and throughout the separate hundreds, through twelve of the more lawful men of the hundred... [link]

This is seen as the first step to "Trial by Jury" with  jury of twelve of your peers chosen to analyze a case and help pass judgment.

Compurgators

The ultimate character witness

Throughout several centuries and many countries, establishing your innocence or trustworthiness in a court of law could be done by the use of compurgators. The word comes from Latin com (with) + purgare (cleanse; hence the modern word "purge").

If you were accused of wrongdoing, you would gather compurgators to appear for you in court. Ideally, you would find 12 of the most respected members of the community who would be willing to stand there and say that they believe you when you say you are innocent. Mind you, if you were found standing over a dead body with a bloody knife in your hand, compurgators were not likely to save you. This worked well when you were accused of cheating on a debt or stealing a spoon and hard evidence did not exist against you...unless you had friends who were determined to protect you.


The opportunities for abuse of such a system were rampant.

Henry II, or instance, in 1164 made sure that compurgation would not be allowed in felonies; he did not like the fact that a cleric (priest) might literally get away with murder in an ecclesiastical court by merely being defrocked, while the royal courts would use capital punishment for capital crimes. The use of compurgation in any way as a defense in England was eliminated from the court system in 1833.