The Rule of Laws, page 30
The Tibetans used almost exactly the same processes with hot iron and boiling water as their medieval European counterparts.21 But ingenious communities came up with other ways to invite a sign from the deities in their ordeals. In Iceland, the proband had to walk under a strip of turf that had been raised above the ground and balanced perilously on sticks.22 He failed if he knocked it over. But when Christian missionaries arrived in the year 1000, the Icelanders adopted their techniques of using hot iron and boiling water. In the early twentieth century, anthropologists and colonial officials recorded the ordeals still being practised by groups scattered throughout sub-Saharan Africa and the Caucasus, among Bedouin tribes, and in the Hindu Kush.23 While many used forms of burning or scalding, several African communities also resorted to poison. As with the European evidence, accounts of what could be done in such cases were much more common than records of actual incidents. The anthropologist Edward Evans-Pritchard, who conducted extensive fieldwork among the Azande of southern Sudan in the 1920s, said that he only came across good evidence of one poisoning ordeal.24 A man had accused another of poisoning his father, and the Zande princes consulted the poison oracle, who declared that the accused must undertake poisoning as an ordeal. As an upper-class man, he was able to avoid the test by sending one of his servants to drink the poison in his stead, but when the boy died he was declared guilty.
ALTHOUGH PEOPLE AROUND the world have resorted to elaborate and generally painful ways of determining the truth, it stands to reason that people in a small and relatively close-knit community would be well aware of who was doing what, who might be responsible for a crime, and whose word could be trusted. A thorough process of inquiry should, in the last resort, have resolved any lingering doubts. Perhaps the ordeals were designed to terrify, not actually to be carried out. Although the Icelandic lawbook refers to ordeals, for example, suggesting that the process developed informally, the only descriptions of these ordeals are found in the sagas, the semi-mythical stories written several centuries after the law texts.25 They describe several women obliged to undergo an ordeal to prove a paternity claim, and one who voluntarily offered to undergo such a test to prove her descent and right to an inheritance. At best, the ordeal was a last resort, something to which the parties turned when other evidence proved inconclusive. In one Icelandic account, the parties walked away from an ordeal because the priest’s interpretation of the results was ambiguous; in another, a clever protagonist blatantly tried to rig the process.26 One can see how an ordeal could easily find a place in these stories, as it could help to bring a narrative to a dramatic conclusion, heighten tension, and provide a theatrical twist to a tale. But this does not mean that they were merely narrative devices, a fiction of the storyteller’s imagination. Ordeals provided drama because the listeners were familiar with what they involved and what they meant, even if, as in medieval Europe, they were threatened more often than carried out. Small communities would have found an ordeal attractive because it provided a direct sign from God or the local divinities, proving guilt and justifying the resulting punishment. Its finality might bring an end to a period of hostility, even if it merely confirmed what most people already knew. It demonstrated to everyone that justice had been done.
In medieval Europe it also provided reassurance to the judges who conducted more elaborate legal cases. Both kings and lords sanctioned the processes and expected their clergy to conduct them. In the ninth century, Charlemagne declared that all should ‘believe in the ordeal’. This was the period during which Germanic and Frankish kings were amassing power and status, trying to limit blood feuds, and taking responsibility for processes of justice. An ordeal, conducted and interpreted by a member of the clergy, took the process beyond their control and weakened the authority of the judges. But it provided an answer where the evidence was genuinely contradictory or inconclusive, particularly if it involved an event that had allegedly happened in private, such as a sexual crime, a clandestine theft, or a surreptitious murder. Even more importantly, it allowed judges to avoid taking responsibility for what was a deeply problematic process, sitting in judgement on their fellow men and women.
Making a judgement was especially problematic if it meant condemning someone to death. In medieval Christendom, as well as in the Islamic world, Vedic India, and premodern Tibet, theological concerns placed a heavy moral burden on the shoulders of a judge. Christian writers made it clear that a judge who acted ‘against his conscience’ by wrongly condemning an accused person faced damnation. In The Divine Comedy, Dante graphically portrayed the torments of sinful judges in the lower hell. Imposing a blood punishment, whether execution or mutilation, was fraught with peril.27 Seeking a direct sign from God was one way of averting these dangers.
Medieval Christian theologians liked to quote St. Augustine, who had declared that judges must act justly, which meant ‘pursuant to the law’ (iuris ordine servato). If a judge acted justly, and an accused was executed, it was the law that killed him, not the judge.28 When a medieval judge took office, he had to swear an elaborate oath on holy relics that he would give just judgements. But although ‘the law’ gave judges some protection, it could hardly help when the evidence was thin or contradictory. Medieval jurists had not developed laws of evidence with concepts like the ‘burden of proof’. The ordeal offered the judge a way around this problem by providing a divine indication of guilt. A judge could then make an order for punishment secure in the knowledge that God had indicated it was just. Following Roman procedures, judges also insisted on a direct accusation before they could hand down a criminal judgement, however good the circumstantial evidence. But, like the judges, most witnesses did not want to take moral responsibility for the resulting blood judgement. So a judge might hear rumours and learn that people harboured suspicions about an offender, but find that no one was prepared to come forward with a direct accusation. An ordeal allowed the divine to solve the problem by providing direct evidence.
WIDESPREAD THOUGH ORDEALS and oath-taking were, religious leaders in both the Christian and Islamic worlds came to disapprove of these practices. Ordeals were most problematic, but so were some practices of oath-taking. Although they helped judges and witnesses avoid serious moral dilemmas, it was a long time before they developed the jury and inquisitorial systems we rely upon today.
Christian clergy conducted most of the European ordeals in the early Middle Ages, but by the thirteenth century church leaders had become deeply uncomfortable with these processes.29 In the code of laws he wrote for the Armenian people in the twelfth century, Mxit’ar Goš stipulated that oaths should only be taken in serious cases between Christians, and only in the absence of sufficient witnesses.30 He criticized all the ‘pointless swearing’ that happened in court and the ‘frightful way’ in which some people made oaths, and he declared that children, the elderly, the sick, women near childbirth, and penitents should not take oaths. Instead, they should find relatives to represent them. He also banned tax officers and sinners from the courts and stipulated that drunkards should wait until they were sober. And, like the Tibetans, he declared that priests and monks should not take oaths; in fact, they should not even enter the courtroom.
The Fourth Lateran Council made similar pronouncements soon afterwards. In April 1213, Pope Innocent III summoned all the senior clergy of the Christian church to a general council. Seventy-one patriarchs and metropolitan bishops, 412 ordinary bishops, and 900 abbots and priors made the journey to Rome the following year, and Emperor Frederick II, Henry of Constantinople, and the kings of France, England, Aragon, Hungary, Cyprus, and Jerusalem all sent envoys. The delegates assembled for three weeks to consider seventy canons presented by the pope. These decrees, he explained, would combat vice, stamp out heresy, settle discord, establish peace, and foster liberty. They also included new directions about legal procedures. Judges were now to have the authority to investigate wrongdoing and summon suspected criminals to their courts, rather than relying upon an accuser. Pope Innocent had also decided that members of the clergy should no longer take part in judicial ordeals. The delegates agreed. There were two problems with ordeals, the church determined. First, ordeals ‘tempted God’: that is, they tested the divine by demanding a sign of guilt or innocence. Second, if the process might end with a punishment of mutilation or death, it involved the clergy in ‘blood practices’.31
This seemingly innocuous decree set in train a series of reforms that eventually led to the rules of evidence used in practically every modern state legal system. But in the short term, the ban created practical problems for judges and moral dilemmas for witnesses and jurors. Replacing blood punishments with other penalties was not a practical option. Imprisonment was expensive, compared to mutilation and execution, and the Old Testament also made it clear that justice meant proper punishment. God had said to Moses, ‘Thou shalt not suffer evildoers to live.’ And in 1203, Pope Innocent had himself declared that criminals should be punished in the public interest.32 So judges feared public unrest if they failed to prosecute and punish crime. The theological problems of crime and blood punishment remained acute.
The church’s decision had the most immediate effect in England, where Henry III, newly appointed to the throne after the disastrous reign of King John, ordered that his judges must find new means of adjudicating disputes.33 The solution they came up with was to place the burden and moral responsibility for declaring guilt onto a jury. The Anglo-Saxon kings had used groups of witnesses to assist in inquests, and the Norman kings had turned them into ‘juries of presentment’. When the judges travelled around the country, they summoned twelve men from each hundred (a division of the shire) and four from each vill (roughly equivalent to a manor) to ‘present’ cases. They had to declare whether they knew of anyone from their area who was guilty, or suspected of being guilty, of a serious crime such as robbery, murder, or theft. These crimes attracted blood punishment. So English peasants and townspeople were already used to being summoned to make accusations against one another. Most probably hated informing on their neighbours, but Henry III’s declaration made their task dramatically worse. It forced them not just to bring accusations against their fellow men but also to decide on the question of their guilt. In practice, this meant that they had to send some criminals to the gallows, with terrifying consequences for their consciences. Not surprisingly, many refused, or tried to refuse, but the king’s officers could charge them with amercement if they failed to bring a case forward. Many found ways to avoid the worst punishments. They could grant an accused priest ‘benefit of clergy’, for example, because clergymen could not be given a blood punishment. Or they could find the accused guilty of a lesser offence—for example, by devaluing the goods he or she had stolen. But it was still a deeply uncomfortable process, and it caused moral anguish to many.
The English system of jury trial soon spread into the civil sphere. By using the new writ of novel disseisin, a landowner could bring a property claim in the royal court, and here a jury of recognitors would adjudicate on the claim.34 Over the following centuries, the courts of the manors, markets, boroughs, ports, and forests all adopted the jury. The system went through changes, but the basic principles remained the same.35 In 1382, concerned about immorality among the inhabitants of the expanding capital city, the mayor and aldermen of London issued a set of ordinances that gave local courts the power to prosecute ‘bawds’, ‘common women’, adulterers, and ‘common scolds’.36 Each of the capital’s wards selected its own aldermen and juries, who could send offenders to the pillory and stocks or banish them from the neighbourhood.
By demanding that twelve people agree on a verdict, the courts did provide some comfort to the jurors and their consciences, and officials would keep searching for jurors until they found twelve who could agree. The system also provided some safeguards for the accused. By the seventeenth century, at least, judges were directing juries that they had to be ‘sure’ of guilt, and even that evidence of a felony had to be ‘so manifest, as it could not be contradicted’.37 But Tudor monarchs took the view that they ought to crack down on crime, and limited the methods that juries could use to lighten sentences. And in the eighteenth century, the British Parliament dramatically increased the number of crimes subject to the death penalty. This was largely to protect the interests of the new landowning classes, their great estates, and deer parks. In a series of criminal statutes, Parliament created new capital offences for hunting and stealing deer, poaching, damaging all sorts of property, committing arson, shooting, and even sending threatening letters.38 The notorious Black Act of 1723 specified fifty distinct capital offences, and over the following decades new acts protected rivers, sea banks, hop fields, and coal mines. The Parliament was now using the terror of capital punishment as a means of social control. The problems faced by jurors, who were expected to send convicts to their deaths, became extreme. By the late eighteenth century, many citizens had become convinced that the law too readily prescribed capital punishment. So sympathetic clerks, prosecutors, and judges helped jurors find means to excuse conduct, downgrade punishment, and identify mitigating circumstances.39
Before long, the pendulum was swinging the other way. Many critics complained about the reluctance of juries to convict, even in what seemed like clear cases. The judges now began to talk of ‘reasonable doubt’ as the test that juries should use when deciding their verdicts.40 They would direct jurors that it was their duty to convict if all the ‘moral probabilities’ of the evidence was against the accused and they had no ‘reasonable doubts’ about the facts. This not only protected the accused but also reassured jurors that they could convict with a clear conscience if the evidence was, in their judgement, sufficiently strong. A principle that we now associate firmly with protection of the accused was originally designed to salve the consciences of the jury. Finally, the law was addressing the moral concerns that English jurors had wrestled with since the thirteenth century.
The same practices made their way across the Atlantic to the new colonies in what became the United States of America. Here, in the early nineteenth century, judges were still instructing jurors to convict if they had ‘moral certainty’. As one chief justice explained, this meant certainty that satisfied their consciences. Inconsequential doubts they could disregard, but moral concerns they should take seriously. Nineteenth-century American juries, brought up in a strongly Christian tradition, were still troubled by the moral and theological consequences of a guilty verdict.41
THE PRONOUNCEMENT OF the Fourth Lateran Council did not have such an immediate effect in continental Europe, where courts continued to use ordeals for several decades.42 But judges faced several problems: according to the principles established in Roman law, an accuser needed direct proof of a crime and the support of at least two witnesses before a court could convict. This made it almost impossible to prosecute a crime committed in private, however compelling the circumstantial evidence. So Pope Innocent III’s declaration that crime needed to be punished in the public interest prompted scholars to rethink the whole basis of criminal evidence. Gratian, the great twelfth-century scholar of canon law, had already proposed that judges could sentence someone for a ‘notorious’ crime, one which was firmly suspected by a large number of people, without an accusation or direct proof. And some judges began to hand down lesser sentences when they felt that the evidence was short of conclusive. When the Lateran Council directed that judges could summon suspected offenders to their courts, some theologians proposed that they should also be able to compel witnesses to give evidence. In doing so, they began laying a foundation for practices of judicial torture.
As in England, and undoubtedly for the same reasons, witnesses were often reluctant to go through the alarming and perilous ritual of accusing someone of a crime or other misdeed under oath. The scholars, accordingly, developed rules about ‘half-proof’. In these cases, the judge could torture an accused in order to extract a confession. The attraction of this method was that it provided proof of the crime. If the accused confessed, the judge did not need to worry about the quality of the evidence, so his conscience could rest easy. The judges were soon using their newfound powers to summon witnesses and torture people accused of serious crimes. And they began meting out extremely harsh forms of justice. Reassured by the pope’s declaration that it was important to punish crime, they decided that beatings, blindings, brandings, the slashing of nostrils, and hangings were all in the public interest.43 Theologians and other writers continued to debate the justification for these punishments and some expressed doubts about the use of judicial torture. But by the sixteenth century a class of professional judges had developed who routinely used these methods, apparently without too much concern. It was only in the eighteenth century that judges felt able to do without the certainty provided by a confession and to sentence, albeit on a lesser scale, on the basis of ‘suspicion’. Gradually, judicial torture was abandoned and the inquisitorial process as we know it today took shape.
