What Was Trial by Ordeal?
Where it relates to trials, this blog covers legal history, sometimes ancient legal history. That is partially the personal interests of the author, but also because understanding how the law came to be is vital for understanding what it is today. If you do not know how we got here, you’ll never understand where we might end up. Some parts of trial practice are firmly rooted in human nature, reason and epistemology. But others are anachronistic window dressing – mindlessly copied practices invented for a world that no longer exists to solve problems long since vanquished. Without a little history, it’s hard to tell which is which.
Jury trials, as we understand them, emerge out of 13th century England as an alternative to three older methods of proof. The first method was the judicial dual, sometimes called “trial by battle” or “wager of battle.” The second method was oath swearing, sometimes called compurgation or “wager of law.” And the third ancient method of proof, perhaps most alien to modern sensibilities, was the trial by ordeal.
So, what was the trial by ordeal?
An ordeal is an iudictim Dei, literally a judgment of god. [1] As practiced in England, trial by ordeal was a religiously mediated physical test. It aimed to invoke an omniscient and omnipotent God to adjudicate legal disputes by supernatural means. The person to be tested, the proband, would perform the physical test, but the prayers of the attending priest would ensure that the result was dictated by God. [2] This was a perfect form of justice, as God had both perfect knowledge to decide the correct result and the power to bend or break physical laws to ensure that the test was passed or failed.
Rituals of this nature have been found throughout the world and it may have been present in England in some form or another for a very long time. [3] But legal enactments that specify the use of the ordeal first become common in the middle of the 10th century. [4] The ordeal appears to have become mandatory for accused thieves, robbers, and murderers in royal courts with the Assize of Clarendon in 1166.[5] And for reasons that we’ll get to later, the ordeal vanishes as a matter of common law by 1219. As such, most of the actual records concerning the ordeal as a legal practice under the common law cover a roughly 200-year period straddling the Norman conquest, with the most detailed information for the last 50 or so years of that period. [6]
So, let’s talk about how an ordeal would come about and who was likely to be subject to one. Under English law, there are no records of ordeals taking place in civil disputes – those were decided by judicial duals or oaths. [7] Ordeals appear to have been used to decide criminal disputes only – most existing records involve accused thieves.
And to be clear, not every accused criminal would be sent to an ordeal. Remember that premodern England had no police force – those do not begin to appear until the 18th century. During the relevant period if a crime were committed in an English town, any witnesses would be expected to raise the hue and cry (hutesium et clamor) to summon a mob of neighbors to stop the criminal at once. [8] If a criminal were captured at this time with the physical evidence of crime in his possession – the stolen goods, a bloody knife, etc. – there would be no legal defenses. [9] The criminal would be brought before some kind of court – potentially one hastily assembled for this purpose – and promptly put to death. [10]
So, imagine that an Englishman believes his neighbor has stolen his goods but did not catch the neighbor in the act. The aggrieved Englishman brings an accusation to a court. This is probably the court of a local lord, but could potentially be a royal court convened periodically for such purpose. [11] The Englishman’s personal accusation is not sufficient to commence the proceedings – there was a very strong principle, drawn from Roman law, that a single man’s word is not enough to force another to face the law. [12] The Englishman is thereby required to bring a number of other witnesses to support his case, his secta or suit. [13] The court would make a factual inquiry of this secta, sometimes a detailed one, into the nature of the accusation, and make the Englishman swear a fore-oath as to the truth of his allegations. [14]
This is enough to commence matters, but not to decide them. What happens next depends on whom the accused neighbor is. If the neighbor is a well-regarded free man, with others willing to swear on his behalf, he may be permitted to dispense with the case by compurgation or, following the Norman invasion, by battle. [15] The Englishman loses, and the neighbor goes free. But if the neighbor is a slave, a man of low repute with none to vouch for him, or a stranger to the community, he may be put to the ordeal to prove his innocence. [16]
The two most common forms of ordeal were hot iron and cold water. [17] In either form, the accused, then called a proband, would be separated from his or her community in the days before the ordeal to fast and pray under the supervision of clergy. [18] He or she would attend mass but would be warned not to accept the Eucharist unless innocent, lest he or she choke. [19] In the ordeal of hot iron (indicium ferri), an iron bar weighing between one and three pounds would then be placed on a fire until it was so hot that it glowed. [20] Following prayers and blessings that called upon God to harm the guilty but spare the innocent, the proband would pick up the hot iron and walk a specified distance, often nine paces. [21] After dropping the iron, the proband’s burned hand would be wrapped up to be inspected by the priest three days later.
What were they inspecting for? Some sources suggest that a proband passes if the hand miraculously shows no signs of injury, but others speak to whether the hand is “clean or foul,” or whether a “diseased discharge” is present – effectively whether the wound has become infected. [22] If the hand has festered, the proband fails and is promptly put to death. If it has not, he or she passes.
In the ordeal of cold water (probatio per aquam frigidam), a proband would be stripped of his garments, save a linen cloth for his genitals, and tied with rope, with hands underneath his knees. He would then be lowered into a lake or river. [23] If he sank, sometimes up to a specified point on the rope designated by a knot, he would be deemed received by the water and pass the test. If he floated, the water would be deemed to have rejected him and he would be put to death.
What happens to people who pass the test? You might think that they’d go free – after all, God himself has judged them innocent with a miracle. In early cases they almost certainly did. But once King Henry II issued the Assize of Clarendon in 1166, he decreed that even accused criminals who passed the ordeal would be required to abjure the realm – i.e. leave England and never return. Specifically:
The lord king wishes also that those who shall be tried and shall be absolved by the law, if they be of very bad testimony and are publicly and disgracefully defamed by the testimony of many and public men, shall forswear the lands of the king, so that within eight days they shall cross the sea unless the wind detains them; and, with the first wind which they shall have afterwards, they shall cross the sea; and they shall not return any more to England unless by the mercy of the lord king: and there, and if they return, they shall be outlawed; and if they return they shall be taken as outlaws. [24]
Why this change? This was, in part, an effort by Henry II to crack down on crime in the aftermath of the English Anarchy that took place in during the reign of his predecessor. [25] But what data exists also suggests that accused criminals succeeded in ordeals at extremely high rates. [26] And royal irritation at God’s apparent sympathy for criminals was brewing even before the civil war. Indeed, King William II (William Rufus), who reigned in the 11th century, after hearing about fifty men exonerated by the appeal for breaking the forest laws, apparently remarked “What is this? God is a just judge? May he perish who henceforth believes that.” [27]
Why all this divine mercy? A number of explanations have been proposed. First, even if administered scrupulously, the ordeals may just not have been that hard to pass. With respect to hot iron, the proband was not touching it for very long. A similar sort of challenge, walking on hot coals without injury, is very achievable for most people under the right conditions, even if it’s not something that you’d try in your back yard. If the proband was quick, and his or her hand was wet from sweat, the actual injury from the hot iron may have been minimal. And while burns are notoriously likely to become infected in the absence of effective medicine, the actual signs of severe infection often take longer than three days to appear. So even if a hand were badly burned and infected, the proband might still pass the test.
The cold water ordeal may have been even easier to pass. While floating in water is no great feat, neither is sinking so long as you properly expel most of the air from your lungs. And remember that even healthy modern people have substantially more body fat (i.e. buoyancy) than a half-starved premodern English thief who just completed a three day fast.
Second, many academics have suggested, based on criticism from the time, that clergy may have been less-than-scrupulous in administering ordeals. There was a lot of room for discretion and/or outright chicanery in the processes, whether by allowing iron to cool a bit before the proband picked it up, or by ignoring signs of infection in the inspection of the hand, or by tying knots close to the body before immersion in water. Indeed, it is not hard to imagine the clergy, having prayed with the accused for days prior to the ordeal, forming a fairly strong opinion on the guilt or innocence of the proband and being inclined to see a miracle in the face of an ambiguous result.
So, what ultimately happened the ordeal? Was it eliminated to introduce modernity or rationality to the administration of justice? Not exactly. While some scholars have suggested that it was already in decline in the early 13th century, the death knell for the ordeal actually came quite swiftly in 1215.
In 1215 Pope Innocent III assembled the bishops and abbots of the church to meet in Rome for the Fourth Lateran Council, an effort “to eradicate vices and to plant virtues, to correct faults and to reform morals, to remove heresies and to strengthen faith, to settle discords and to establish peace, to get rid of oppression and to foster liberty, to induce princes and Christian people to come to the aid and succor of the holy Land.” A number of doctrinal developments occurred at that meeting, but critically, a new prohibition on clerics participating in ordeals was propounded:
No cleric may decree or pronounce a sentence involving the shedding of blood, or carry out a punishment involving the same …. nor may anyone confer a rite of blessing or consecration on a purgation by ordeal of boiling or cold water or of the red-hot iron [28]
While the proclamation styles this prohibition as one designed to avoid clerical involvement in “bloodshed,” other motivations may also have been at play. Some religious writers at the time were clearly disturbed by the notion that God could be commanded to perform miracles on command. This should not necessarily be read as a lack of faith. Rather, as a matter of Christian orthodoxy, the practice appears heretical, or at the very least difficult to reconcile with either Deuteronomy 6:16 (“Do not put the Lord your God to the test as you did at Massah.”) or Matthew 4:7 (“Jesus answered him, ‘It is also written: ‘Do not put the Lord your God to the test.’’”).
Since priestly participation in the ordeal was required to ensure that God would personally intervene, this decree effectively ended the ordeal in England. Records of ordeals vanish by 1219. What ultimately replaced it? While compurgation and battle remained available for some, ultimately, the inquest, the petty jury that is the forerunner to our modern jury, was fashioned to fill the void left by the ordeal.
It may be tempting to look at ordeals as the misguided, superstitious nonsense of an earlier time. But the premodern society that they inhabited was filled with men and women like us, who understood their environment and human nature at least as well as we do. Lacking any plausible means of incarcerating or rehabilitating criminals at scale, they readily killed anyone caught in the act. But there was real hesitation about killing people whose guilt was not obvious. And both the requirement of secta and the ability of freeman of good standing to avoid prosecution by oath are built on a fundamental skepticism of testimonial evidence that cannot be easily dismissed as irrational.
A 12th century Englishmen would not assume that anyone could listen to two competing sets of testimony, from two witnesses they did not personally know, and reliably determine which witness was telling the truth. And he might think it barbaric that a man or woman could be stripped of property, incarcerated, or even put to death, based on the outcome of that sort of arbitrary guesswork. His law did not permit such a thing. But ours does. And as DNA testing continues to overturn decades-old convictions based upon eyewitness testimony, we might do well to ask ourselves: Do we know better than he did? Are our ways so much wiser?
The world is different now and no one sensible would suggest a return to trial by ordeal. But in an unimaginably more religious society, was it irrational to exonerate a person so convinced of their innocence that they would look a priest in the eye and pick up a piece of glowing hot iron? Perhaps not.
[1] Sir. Frederick Pollock & Frederick William Maitland, The History of English Law Before the Time of Edward I – Volume II, p. 628 (1898).
[2] Paul R. Hyams, Trial By Ordeal: The Key to Proof in the Early Common Law, ON THE LAWS AND CUSTOMS OF ENGLAND: ESSAYS IN HONOR OF SAMUEL E. THORNE, p. 92 (1981).
[3] James Thayer, The Older Modes of Trial, 5 Harv. L. Rev. 25, 63-64 (1891).
[4] Paul R. Hyams, Trial By Ordeal: The Key to Proof in the Early Common Law, ON THE LAWS AND CUSTOMS OF ENGLAND: ESSAYS IN HONOR OF SAMUEL E. THORNE, p. 106 (1981).
[5] Margaret Kerr, et al. Cold Water and Hot Iron: Trial by Ordeal in England, Journal of Interdisciplinary History, XXII:4, p. 573 (Spring 1992).
[6] Paul R. Hyams, Trial By Ordeal: The Key to Proof in the Early Common Law, ON THE LAWS AND CUSTOMS OF ENGLAND: ESSAYS IN HONOR OF SAMUEL E. THORNE, p. 107 (1981).
[7] Id.
[8] Sir. Frederick Pollock & Frederick William Maitland, The History of English Law Before the Time of Edward I – Volume II, p. 607 (1898).
[9] Id. at 608.
[10] Id.
[11] Paul R. Hyams, Trial By Ordeal: The Key to Proof in the Early Common Law, ON THE LAWS AND CUSTOMS OF ENGLAND: ESSAYS IN HONOR OF SAMUEL E. THORNE, p. 107 (1981).
[12] Id.
[13] J.H. Baker, An Introduction to English Legal History (2002) p. 4.
[14] Paul R. Hyams, Trial By Ordeal: The Key to Proof in the Early Common Law, ON THE LAWS AND CUSTOMS OF ENGLAND: ESSAYS IN HONOR OF SAMUEL E. THORNE, p. 107 (1981).
[15] Id.
[16] Id. at 108.
[17] Sir. Frederick Pollock & Frederick William Maitland, The History of English Law Before the Time of Edward I – Volume II, p. 628 (1898).
[18] Paul R. Hyams, Trial By Ordeal: The Key to Proof in the Early Common Law, ON THE LAWS AND CUSTOMS OF ENGLAND: ESSAYS IN HONOR OF SAMUEL E. THORNE, p. 110 (1981).
[19] Id.
[20] Peter Leeson, Ordeals, 55 J.L. & Econ. 691, 694 (2012).
[21] Paul R. Hyams, Trial By Ordeal: The Key to Proof in the Early Common Law, ON THE LAWS AND CUSTOMS OF ENGLAND: ESSAYS IN HONOR OF SAMUEL E. THORNE, p. 110 (1981).
[22] Margaret Kerr, et al. Cold Water and Hot Iron: Trial by Ordeal in England, Journal of Interdisciplinary History, XXII:4, p. 588 (Spring 1992).
[23] Id. 582-83.
[24] Assize of Clarendon [1166], available at: https://avalon.law.yale.edu/medieval/assizecl.asp
[25] Margaret Kerr, et al. Cold Water and Hot Iron: Trial by Ordeal in England, Journal of Interdisciplinary History, XXII:4, p. 575 (Spring 1992).
[26] Peter Leeson, Ordeals, 55 J.L. & Econ. 691, 705-709 (2012).
[27] Margaret Kerr, et al. Cold Water and Hot Iron: Trial by Ordeal in England, Journal of Interdisciplinary History, XXII:4, p. 575 (Spring 1992).
[28] Fourth Lateran Council [1215], available at: https://www.papalencyclicals.net/councils/ecum12-2.htm
