Until the 12th century when trial by jury began to take off in the reign of Henry II, ancient modes of proof were still frequently utilised in English courts.
For example, the ordeal of cold water. The person submitted to this examination (usually the accused) was lowered into sufficient cold water to come over the top of his or her head. If the person sank, it meant that the pure element of water accepted him and he was innocent. If not, then he was removed and taken away to be punished - often by mutiliation.
In some areas there were special ordeal pits for this. These are mentioned in charters as a source of monastic income and were mentioned as part of the patrimony of churches. Ordeal pits are mentioned in the pipe roll for 1166 as being blessed by the clergy. A water ordeal-pit near Bury St. Edmunds was blessed by two priests at a cost of ten shillings. This is at a time when a labourer might earn a penny a day. There are 12 pennies in a shilling. The blessing of the pits was ordered by itinerant royal justices Geoffrey de Mandeville and Richard de Lucy.
The ordeal of cold water might also be organised from a bridge over a stream. The ceremony was accompanied by the chanting of the clergy, a sermon and mass.
Another judgement of God was that of the hot iron. Here the accused had to briefly carry a hot iron. His hand was then bandaged and sealed and when later examined, if it was clean and healed, or healing again, he was innocent. This ordeal was common in England both in criminal and civil pleas. King William Rufus was a very unhappy man when 50 people accused of crimes in his forest took the ordeal of hot iron en masse and all came through it unmarked! Rufus swore he would never be taken in again. At the assize of Clarendon in 1166, Henry II chose not to believe the innocents who had come through trial by water and survived, and banished them from England anyway.
There was also the ordeal of trial by combat, which was viewed as a Norman innovation by the English. William the Conqueror expressly ordered that it was not to be enforced on English litigants who were to stick to their own forms of ordeals. The two co-existed until trial by jury took over in the mid to late reign of Henry II. The clergy got in on the act of Trial by Combat by blessing the weapons and imploring God's mercy. While trials by combat were sometimes fought by the accused themselves, as in the case of Henry II's standard bearer Henry of Essex (who lost, was spared and took the tonsure), or William Marshal when accused of fornicating with the Young King's wife (no one was stupid enough to go up against him), people would employ champions to fight in their stead.
The other, less drastic form was compurgation and was the primary mode of proof. Here, the party would swear to his own good right or innocence under oath and would produce a number of oath-helpers' who would add their oaths to support his. They weren't witnesses, just people confirming their belief in the person under trial.
All theses ancient systems of justice were swept away during and beyond the reign of Henry II and replaced by the trial by jury system, which has served us ever since.
Source: The Birth of the English Common Law by R.C. Van Canegem: Cambridge University Press.
Today's research photo
Tomb effigy in The Temple Church: The mailed hand of William Marshal on his sword hilt. Circa 1220's.
2 comments:
Very nicely done. Concise and interesting. Thank you
The concept of "trial by combat" lingered on till 1817. A man named Abraham Thornton was accused of murdering a young woman. He was tried and acquitted, whereupon the woman's brother brought a civil suit where he claimed the right to trial by combat (which had never been formally repealed.)
It wound up a big, almost comic anticlimax. Thornton was a big, strong fellow, and he accepted the challenge. The brother, who was, I take it, a rather weedy sort, chickened out, and Thornton was freed. Trial by combat was abolished soon afterward.
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