The Rule of Laws, page 29
DURING THE MIDDLE Ages, legal scholars everywhere studied the rules, principles, exceptions, and distinctions of the civil (Roman) law, and the church courts applied canon law. French judges borrowed their legal forms to create laws with general application, while English judges developed technical forms of landholding and succession in their system of writs. But most people, even the judges in the highest courts, had a sense that custom was important and ought to be respected. And the kings repeatedly confirmed this when they recognized the authority of regional courts, ordered that customs be recorded, and directed that wardens, verderers, and admirals should respect tradition. In their local courts, people could feel that law was rooted in custom.
Gradually, more centralized government, along with the techniques of legal professionals, drew people into the royal and imperial courts, where judges applied laws to make authoritative decisions. But, particularly in England, it was centuries before these formed anything like a single system or superseded the authority of local tribunals. Roman law might have provided the inspiration for much of this lawmaking, along with the writs of the English kings and judges, but the substance of the law was also developed bottom up, by local people addressing local problems.
CHAPTER ELEVEN
THE PROBLEM OF JUDGEMENT
Oaths, Ordeals, and Evidence
The legal systems that developed in Mesopotamia, India, and China promised justice, cosmological order, and religious guidance. Disputes were often brought to courts and judges for resolution, but they were also brought to mediators, whether or not they had laws to refer to. Peasants and herders argued about fields and livestock, townsmen complained about disruptive neighbours, dangerous buildings, and dirty sewers, merchants argued over prices, landowners developed complex property arrangements, officials extorted money, and people everywhere insulted one another and got into fights. In an attempt to restore order, juries delivered verdicts, judges gave judgements, officials meted out punishment, mediators promoted conciliation, elders gave practical advice, priests referred to moral rules, and scholars crafted learned opinions.
The variety of the world’s legal processes is almost as great as the variety of its societies. But a problem every society has faced is how to determine the truth. If a man claims that another has killed his son, the accused may protest that he did it in self-defence. If a woman complains that she has been slandered by someone, that person may swear she misheard what was said. A merchant may deny that he signed an agreement that his trading partner is trying to enforce. A shepherd may claim it was a lion who killed the sheep, while the owner of the sheep accuses him of carelessness. Who is to be believed? For all the differences in their laws, in premodern societies people everywhere came up with similar solutions to this most intractable of problems.
Oaths and ordeals might seem exotic to us now, even barbaric, but premodern societies the world over invoked the divine to determine whether someone was guilty of a crime. Sometimes people had to prove their innocence—or the truth of an accusation—by swearing an oath. In imperial Tibet, people made dramatic oaths in front of divine images, while tribesmen in the Middle East could gather dozens of people, compurgators, to swear oaths confirming their innocence. People in other places might have to undergo an ordeal, a physical test that would prove their guilt or innocence: ancient texts from Vedic India describe how priests should prepare for this procedure, and in Africa, the Caucasus, and pre-Christian Iceland, ritual specialists conducted alarming and painful tests. Oaths and ordeals come closer to a set of universal legal practices than anything else did, before the forces of colonialism and modernity spread European laws throughout the world. Eventually, laws of evidence superseded accusations made on oath and the proof offered by an ordeal, but it was a long time before these rules transformed criminal trials into the processes we know today. In the meantime, judges had to work out how to determine when an accused was guilty and ought to be punished. And this was not just a problem for the accused. Christianity, Hinduism, Buddhism, and Islam threatened divine retribution, the fires of hell, and a miserable rebirth for any judge who punished someone unjustly. The stakes could not have been higher.
IN THE SEVENTH to ninth centuries CE, a line of kings on the Tibetan Plateau transformed a loose coalition of nomadic tribes into a centrally controlled empire. As part of their project to turn potential rivals into loyal subjects, they staged elaborate ceremonies where the leaders of outlying regions would swear oaths of loyalty. These dramatic events were conducted in front of powerful local deities and probably involved animal sacrifices.1 At the same time, the kings made strenuous efforts to regulate and control the blood feuds that regularly erupted between their tribes. The nomads had long competed with one another for pastures and raided their neighbours’ animals, as their successors still do today. But now, probably emulating the legal practices of their Chinese neighbours, the Tibetan kings created sets of laws to govern the payment of compensation for murder or injury and to punish those who deliberately caused trouble.
One event that could generate conflict was the royal hunt, when the kings invited members of their court to chase wild yak in the high Himalayan valleys.2 Although the ministers now formed a status hierarchy, rivalries lingered among them, and on the hunting field latent antagonism could easily erupt into a violent dispute. Whose arrow had killed the prize quarry, and whose dog had startled the horse that had thrown its rider? And if an arrow missed its target and hit a person, those nearby might easily suspect foul play. The kings created two sets of rules to deal with the consequences. They specified the amount of compensation to be paid after a killing or injury, which largely depended on the status of the wrongdoer and the victim, reinforcing the social hierarchy. But the laws also directed that someone accused of a deliberate killing had to gather twelve people to swear an oath testifying to his innocence. If he could accomplish that, he was simply liable to pay the blood money or wound price of his victim. If he failed to gather a sufficient number of people for the oath, he would suffer punishment for murder. Thus he could be exiled, lose his lands, his wealth, and possibly his life, and see his family taken into slavery.3 The process of oath-taking determined whether a death was an accident or murder. The accused could also ask his oath-helpers to swear that he was not responsible at all—‘It was not my arrow’, as the text puts it. In this case, the accuser would suffer punishment instead. Slander was as serious as homicide.
Under these rules, the oath-takers would provide evidence that the accused had not intended to kill or injure his victim. But how were they able to testify as to his state of mind? On the hunting field, a high-ranking minister would be surrounded by a retinue of family, followers, and servants, but his thoughts were his own. And no Tibetan would have taken an oath lightly. Swearing an oath meant invoking one of the fierce protector deities who could mete out hideous retribution on anyone who invoked his or her name in vain. The process only makes sense if we understand that the accused was asking his compatriots to swear an oath of compurgation. Rather than giving direct evidence about his state of mind, they were affirming his probity, his integrity; they were saying that he could be trusted to tell the truth. They were affirming that this was not the sort of person who would have engaged in a dishonourable attempt to injure or murder a rival. A collective oath expressed the oath-takers’ loyalty. It affirmed the honour of the accused, which proved that the incident must have been an accident, not a crime.
Similar practices were taking place in medieval Europe during exactly the same period.4 The inhabitants of the British Isles still formed tribal groups which engaged in blood feuds, but by the tenth century, King Edmund I, in an attempt to restrain and regulate the associated violence, had issued a law saying that a victim’s family could only take revenge on the slayer himself, not on the slayer’s wider family. The Norman kings went further, banning direct retribution altogether. A killer now had to pay compensation to both his lord and his king, as well as to the victim’s family. The monarchs were beginning to punish crimes directly. But this also meant distinguishing between a murder, an accident, and a killing in self-defence. And as in Tibet, the English kings expected an accused to bring compurgators to swear that the incident was not intentional. One self-important aristocrat brought fifty witnesses to swear that he had killed a rival in self-defence rather than in an act of premeditated murder.5
Before they entertained a criminal case, however, the English judges needed an accusation, and for a serious crime the accuser had to bring witnesses to swear oaths of confirmation. The accuser’s word alone was insufficient. Like the Tibetan procedures, English oath-taking was done in public. It required careful preparation and culminated in the dramatic invocation of the Almighty. These elaborate processes were supposed to ensure that people did not make frivolous accusations. By the time of Henry I in the early twelfth century, the kings had formalized rules for oath-taking, and the law provided that if a royal judge entertained a charge brought by a single person, without other witnesses, and without the culprit having been caught in the act, then the accused could clear himself by his own oath and that of two neighbours. If, by contrast, an accuser brought good evidence before the court, the judges might expect the accused to rally as many as thirty-six compurgators.6
In medieval Cairo, the Jewish courts also expected witnesses to give their evidence on oath if the allegations were serious. The geniza documents describe parties assembling in the synagogue, where the witness held the Torah, draped in black cloth, while giving evidence. They sometimes read aloud the Ten Commandments, including the solemn statement that ‘the Lord does not hold him guiltless that takes his name in vain’. There would have been no doubt in the oath-taker’s mind that he or she was invoking God directly and that a false oath was a sin that would lead to punishment in the afterlife, and possibly also negative consequences in this one. The documents indicate that when all the preparations had been made, community elders were often able to intervene and persuade a trembling witness to agree to a compromise.7
Tribesmen in the Middle East also developed practices of oath-taking.8 If there was good evidence of a murder—a corpse had been found in a hostile village, say, or had been discovered shortly after a group of people had left a place, or a person was found with blood on his clothes—then the victim’s relatives could gather fifty men to swear an oath to confirm their suspicions. After this, they could either take direct revenge or demand blood money from the killer’s family. These were oaths of accusation. Islamic scholars also advocated oaths of compurgation. If a corpse was found bearing traces of violence, then the victim’s family could bring an accusation against all the members of the city quarter or village in which it had been found, which encompassed anyone within shouting distance. If the residents refused to take responsibility for the death, fifty of them had to swear an oath to deny their involvement, and any who refused would be imprisoned until they swore or confessed. Even if they all denied responsibility, unless they could convincingly blame someone else they were still liable for the victim’s blood price. In other contexts, the tribe of a murderer had to gather a sufficient number of people to swear that they had outlawed the attacker from their tribe, in order to prevent a revenge attack. Islamic jurists formalized many of these traditional practices into law, although they also expressed disapproval of the way in which witnesses freely invoked the divine, and they directed that people should not swear oaths about crimes they had not witnessed. Still, particularly among the nomadic tribes of the Middle East, oath-taking continued for centuries. Legal documents drawn up by Yemeni groups as late as the eighteenth century describe compurgators gathering to prove that a killing was not intentional.9
Oath-taking was a near-universal means to justify an accusation or deny guilt. But it was everywhere a serious and elaborate process which imposed an intense moral burden on the oathtaker. Christian writers noted the ‘extreme peril’ involved in invoking God. Declaring a falsehood, even if accidentally, would amount to taking God’s name in vain and incurring his wrath, with almost certain repercussions in the afterlife. Witnesses brought into church were expected to quake when the priest revealed the relics of a saint as part of the process. They knew they were putting their souls in peril.10 One Bedouin tribesman in the Middle East was so incensed that he had to swear an oath to prove his innocence that he turned on his accuser threatening violence and had to be restrained by his kin.11 People took oaths to avoid direct revenge, but in the highly charged atmosphere of tribal antagonism, the process itself could inflame tempers.
IT WAS AN honour and privilege to be able to swear an oath in self-defence, and only those with sufficient status possessed that option. Throughout the Middle Ages, the legal systems of Europe continued to rely on the process of oath-taking to prove innocence or guilt, and many English subjects insisted on their right to ‘wage their law’, that is, to take an oath to demonstrate their innocence.12 But the lowest classes could not swear probative oaths. Vagrants and slaves were not ‘oath-worthy’; nor was anyone who had already committed perjury. The Tibetans did not let the poor and indigent swear, either, on the basis that they could be too easily bribed, and it was thought that women’s loyalty to their menfolk, and children’s unformed minds, might lead them to lie. Ritual practitioners might be able to subvert the consequences of an oath and Buddhist lamas were also excused from having to invoke the deities.13 In most contexts, those who did not have the family networks to gather sufficient oath-helpers were also at a disadvantage in processes that depended upon compurgation.
So how were these people to prove their innocence, or the truth of their accusations? English courts, Tibetan officials, and judges throughout the world turned to the ordeal as a solution. In a typical ordeal, the accused would have to take a hot iron bar or stone in their hand and walk a few paces. After this, the hand would be bound. If it was already healing when the judge or priest inspected it a few days later, it was a sign of innocence. Witnesses who took an oath invoked the divine, signalling that they were aware of the possibility of spiritual retribution if their evidence was false, while those who underwent an ordeal invited direct intervention from God or other spirits. The process itself indicated the truth.
Some of the earliest evidence of ordeals comes from India, in texts that date to the seventh century BCE.14 The writer of one of the Vedas, the Vajñavalkya, described elaborate processes, indicating a well-established tradition. Four priests needed to sanctify the ground and purify the proband, the person undertaking the ordeal, who then had to recite the correct form of words and make offerings to the deities before undergoing the test. The text provides no details of what the ordeal itself involved, but it lists the types of people who should not be allowed to undergo this process. These included anyone who would be at a disadvantage, such as the ill, and anyone who had spiritual powers, which might enable them to manipulate the results. In medieval Tibet, judges and mediators also used ordeals when they needed to determine the truthfulness of contested allegations, particularly in cases of suspected theft.15 A Tibetan legal treatise on oaths and ordeals starts, like the Indian text, with a list of those who should not be allowed to swear an oath. It continues by directing that mediators must take great care to ensure that the proband uses the right words and that the process is carried out correctly. The author was particularly concerned that the words should be clear, so that the proband could not subvert the process by carefully selecting words that would ‘prove’ his or her innocence without perjury.
French romances from the same period describe clever protagonists indulging in just these tactics.16 By now, ordeals were well established in Europe.17 The earliest Frankish laws, written in the sixth century CE, refer to ‘the cauldron’ used to test allegations of theft, false witness, and contempt of court. In this version of the ordeal, the proband had to draw a stone or ring from a pot of boiling water, after which the hand would be bound, as in the ordeal with the hot iron. Irish legal treatises written in the seventh and eighth centuries refer to ‘the truth of the cauldron’, sometimes to ‘the truth of god’, and one attributes the introduction of this practice, somewhat implausibly, to St. Patrick.18 In England, King Ine of Wessex, in the late seventh century, refers to someone proved guilty of theft ‘by a cauldron’, and the laws of Aethelstan, three centuries later, give directions as to how ordeals should be conducted.19 The test could involve hot iron or immersion in cold water. In the latter case, the witness would be undressed, bound into a foetal position, and lowered into consecrated water. The idea was that the water would reject the impure, so the guilty would float. Aethelstan’s laws directed that before the test the proband had to stay with the officiating priest for three days, eating nothing but bread, water, salt, and herbs, and attending Mass every day. No more than twelve observers should attend the test on each side, each of whom must also have fasted for three days. Everyone, that is, had to recognize the seriousness of the occasion and the solemnity of a process that invoked a sign from God.
Medieval stories and other written accounts present lurid descriptions of ordeals, but scholars suspect that the practice was much less common than these accounts would suggest. The idea behind the process was to intimidate a witness into confessing. French and English sources are full of brave women who voluntarily undergo an ordeal to prove their fidelity or chastity, but, although priests may often have made all the preparations, at the last moment, faced with the horror and drama of the impending test, many probands probably gave in. By the ninth century, European practices involved a ceremony that was carefully prepared to put psychological pressure on the proband. He or she would be cloistered away for several days, dressed as a penitent, and tended by the priest who was going to administer the ordeal. The priest during this time would doubtless apply intense pressure on the proband to confess if he thought he or she was lying. The ordeal itself took place in a church or at some other holy site. After hearing Mass, the proband would invoke God and repeat his or her evidence, and the priest called on God, ‘the just judge’, to chase away the devil who had ‘hardened [the proband’s] heart’. Or he might invoke the biblical story of Susanna, who was falsely accused of sexual misconduct, and ask God to protect the proband if he or she was innocent.20 Meanwhile, a blacksmith might be heating the iron bar that the proband would have to hold. Or people might be placing boards and ropes over a river or pit of water, into which the proband would be lowered. This extensive process would weigh heavily on a guilty conscience. If the accused held fast to his or her innocence and the trial continued, it was up to the priest to declare the outcome of the ordeal. Were the burns really healing, or had the proband really sunk? His judgement was critical, and the clergy could be sympathetic. Indeed, some people complained that the medieval clergy rarely declared anyone to be guilty.
