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Functionalist Explanations for the Persistence and Withering of the Ordeal
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< | Possibly the most enigmatic custom/institution of medieval English law is the trial by ordeal. What function did this institution play in medieval English society, if that is the right framework for analyzing it? |
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Is it? Functionalism is probably more discredited now among |
| | History and Operation of the Ordeal in England
The ordeals of fire and water in England likely have their origin in Frankish tradition, as the earliest mention of the ordeal of the cauldron is in the first recension of the Salic Law in 510. (Bartlett 4-7). Trial by cauldron was an ancient Frankish custom used against both freedmen and slaves in cases of theft, false witness and contempt of court, where the accused was made to plunge his right hand into a boiling cauldron and pull out a ring. (Bartlett 4, 9). As Frankish influence spread throughout Europe, ordeal by cauldron spread to neighboring societies. (Bartlett 9). |
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< | The earliest references of ordeal by cauldron in the British Isles occurs in in Irish law in the seventh century, but it is unlikely that this tradition shares roots with the Frankish tradition that is likely the source of trial by fire and water among the Anglo-Saxons and later the Normans in England. (Bartlett 5). The laws of Ine, king of the West Saxons, produced around 690, contains the earliest reference to ordeal in Anglo-Saxon law; however, this is the last and only mention of ordeal in Anglo-Saxon England until the tenth century. (Bartlett 7).
After the Conquest of 1066, the Old English customs of proof were repeated anew and in more detailed fashion by the Normans, but the only notable innovation of the ordeal by the conquerors was the introduction of the trial by battle. (Hyams 111). There were, however, minor conflicts between the customs of the Anglo-Saxons and the customs Normans that were unsurprisingly resolved in ways that favored the Normans. (Hyams 112).
William Rufus was skeptical of the ordeal. (Expand or delete).
Expand, briefly. Not so much to explain William the Red, as to provide an illustration supporting interpretation of what skepticism (as opposed to unbelief) involved.
(Give fuller account of the pre-Assize of Clarendon history of the ordeal) |
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< | Prior to and for some time after the Assize of Clarendon there was a distinction between those accused fama publica and those accused on the basis of specific facts. (Hurnard). Those accused fama publica were able to exculpate themselves by means of compurgation, whereas those accused on the basis of specific facts were made to undergo the ordeal. (Hurnard). |
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> | The earliest references of ordeal by cauldron in the British Isles occurs in in Irish law in the seventh century, but it is unlikely that this tradition shares roots with the Frankish tradition that is likely the source of trial by fire and water among the Anglo-Saxons and later the Normans in England. (Bartlett 5). The laws of Ine, king of the West Saxons, produced around 690, contains the earliest reference to ordeal in Anglo-Saxon law; however, this is the last and only mention of ordeal in Anglo-Saxon England until the tenth century. (Bartlett 7). |
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< | After the development of the hundred juries and vills, these groups made what were, in effect, medial adjudications of accusations. In other words, these groups opined on the accuracy of the accusation, and this adjudication decided whether the defendant would face the more final decision of the ordeal. These bodies rendered “verdicts” of either suspected or not suspected. In cases where the defendant was accused on the basis of one or more inculpatory facts, the defendant was sent to the ordeal upon the verdict of the hundred jury alone. In cases where the defendant was accused fama publica, the accord of the hundred jurors and the vills as to the defendant’s suspicion was required to send him to the ordeal. (Groot). |
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> | After the Conquest of 1066, the Old English customs of proof were repeated anew and in more detailed fashion by the Normans, but the only notable innovation of the ordeal by the conquerors was the introduction of the trial by battle. (Hyams 111). There were, however, minor conflicts between the customs of the Anglo-Saxons and the customs Normans that were typically resolved in ways that favored the Normans. (Hyams 112). In a famous story from Eadmer’s History of Recent Events, William Rufus expresses skepticism about the ordeal after fifty men accused of forest offenses were exonerated by the ordeal of hot iron. In this story, Rufus states that he will take judgment from God’s hands into his own. (Hyams 116). However, this skepticism was not universally shared by the intellectuals of the day, and Eadmer depicts Rufus as irreligious for rejecting the legitimacy of the ordeal. (Bartlett 76). |
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> | The use of the ordeal in medieval England was very sensitive to status and reputation in the community. The laws of Canute distinguish between “men of good repute” who were able to clear themselves by their own oath, “untrustworthy men” who required compurgators, and untrustworthy men who cannot find compurgators who must go to the ordeal, and one of the laws of Ethelred the Unready declared that untrustworthy men were to be sent to the triple ordeal, that is, an ordeal of hot iron where the iron is three times heavier than that used in the simple ordeal, unless his lord and two other knights swear that he has not been accused of a crime recently, in which case he would be sent to an ordinary ordeal of hot iron. (Bartlett 31). |
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< | The English plea rolls contain no cases of trial by ordeal after 1219. (Bartlett 128). |
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> | Unlike other European societies, the English rarely employed the ordeal in non-criminal proceedings. (Bartlett 63). The mandatory use of the ordeal in certain criminal proceedings appears to date from the Assize of Clarendon in 1166. (Kerr et al., 1). Prior to then, compurgation was the most usual method of proof, and the ordeal was used in cases where there was some presumption of guilt against the accused or when the accused was bound to fail in compurgation. (Kerr, 3). A distinction was made between those accused fama publica (by public outcry) and those accused on the basis of specific facts. Those accused fama publica were able to exculpate themselves by means of compurgation, whereas those accused on the basis of specific facts and those who were thought to have bad character were made to undergo the ordeal. (Groot 23). |
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> | The Assize of Clarendon declared that all those said by a jury of presentment to be “accused or notoriously suspect” of robbery, thievery, or murder or of receiving anyone who had committed such a wrong were to be put to the ordeal of water. (Kerr 1). These juries of presentment were the hundred juries and vills, and these groups, in effect, made the intermediate decision of whether an accused person would face the more final judgment of the ordeal. These bodies rendered “verdicts” of either suspected or not suspected. In cases where the defendant was accused on the basis of one or more specific facts, the defendant was sent to the ordeal upon the verdict of the hundred jury alone. In cases where the defendant was accused fama publica, the agreement of the hundred jurors and the vills as to the defendant’s suspicion was required to send him to the ordeal. (Groot 23). However, the intermediate accusation of the juries could still be considered final in some sense as any person who was accused of murder by the juries was required to leave the realm even if he was exonerated by the ordeal. (Bartlett 67). |
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> | In 1215, clergy were forbidden to participate in ordeals by the Fourth Lateran Council. The English plea rolls contain no cases of trial by ordeal after 1219, when Henry III recognized its abolition. (Bartlett 127-128). |
| | Explanations for the persistence and disappearance of the ordeal
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< | Peter Brown gives both a functional and phenomenological account of the persistence and eventual withering of the ordeal.
Functional account: In a society where the coercive power of the state is weak and people live in small, isolated, and densely packed communities, and where one of the greatest dangers to the well-functioning of the community is feud, the ordeal was an instrument of consensus. The ordeal helped contain and resolve conflict.
Phenomenological account: In the society of the ordeal, the sacred penetrated the profane and vice-versa.
This isn't really an "account," just a statement of a familiar proposition.
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> | Peter Brown explains the persistence and eventual withering of the ordeal by stating that it helped promote consensus in a society where people lived in close quarters and there was little centralized power. In a world where "the sacred penetrated into the chinks of the profane and vice-versa" the ordeal was a "controlled miracle" that served as a point of consensus when one of the greatest dangers to the community was feud. (Brown 135-138). From this analysis, Brown argues that the increasing authoritativeness of the state lessened the need and desire for the ordeal as an instrument of consensus, which ultimately led to its disappearance. (Brown 143). |
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< | Kerr et al. argue that the ordeal was an instrument of mercy, contrary to its apparent cruelty. It was one of several devices created to protect people guilty of crimes from rigors of secular law, and all of them linked in some way to the English church: sanctuary, king’s pardon, and benefit of clergy. |
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< | Three big pieces of circumstantial evidence are given to support this conclusion. First, probands had a very high success rate in the ordeals. Second, probands who had to undertake the ordeal of cold water were made to do things prior to the ritual that would increase their chances of success. Third, despite the lack of a taboo against women undergoing the ordeal of cold water, women were always made to undergo the ordeal of hot iron (not including the later recrudescent “ordeal” of witch swimming). Women would have had a much lower success rate in the ordeal of cold water than men, because of specific gravity, and they had high success rates in the ordeal of hot iron. |
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> | Leeson analyzes the ordeal from a rational choice perspective. He argues that the ordeal was a socially productive custom because it used the superstitious beliefs of those who underwent the ordeals to reveal information about their guilt or innocence in a society where other fact-finding methods were unavailable. (Leeson 693). The ordeal was assigned guilt or innocence with some accuracy, because the superstitious beliefs of those who underwent ordeals caused those people to unwittingly reveal information about their guilt or innocence. According to Leeson, this allowed priests to manipulate ordeals based on the willingness of the accused to undergo them. To support this contention, Leeson points to the great latitude given to the priests in administering the ordeal and interpreting the results of the ordeal. (Leeson 697-698). He also points to the overall high exoneration rate of accused persons undergoing the ordeal, when intuitively one would expect a very high proportion of people carrying a red hot iron to be badly burned and thus fail the ordeal. Kerr et al., however, have used these very same facts to find that the ordeal was a clerical instrument of mercy to ease the strictures of the secular law rather than a means to accurately judge the guilt or innocence of a party. (Kerr et al., 24) |
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< | Leeson analyzes the ordeal from a law and economics perspective. He argues that ordeals assigned guilt or innocence with some accuracy, because the superstitious beliefs of those who underwent ordeals caused those people to unwittingly reveal information about their guilt or innocence. “Ordeal outcomes were miraculous, but they were miracles of mechanism design.” |
| | References |
| | Groot, Roger D. (Jan. 1982). "The Jury of Presentment before 1215". The American Journal of Legal History 26 (1): 1-24. |
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< | Hurnard, Nancy (1941). "The Jury of Presentment and the Assize of Clarendon". The English Historical Review 56 (223): 374-410. |
| | Hyams, Paul (1981). "Trial by Ordeal: The Key to Proof in the Early Common Law". In Morris S. Arnold et al., eds, On the Laws and Customs of England. Essay in Honor of Samuel E. Thorne. Chapel Hill: University of North Carolina Press.
Kerr, Margaret H.; Forsyth, Richard D.; Plyley, Michael J. (1992). "Cold Water and Hot Iron: Trial by Ordeal in England". Journal of Interdisciplinary History 22 (4): 573-595. |
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