Thinking Medieval: the Law - Trials and Tribulations

Early medieval laws are concerned about two things: injuries and the transfer of property. The Germanic/tribal idea of law as a personal custom shared by your family and community ran smack into the Roman ideal of law as a series of rules for the protection of the citizens of the state. After a period of arguing they produced some ugly babies that grew into the modern conception of laws and justice.

In order to understand the medieval worldview, you need to understand how medieval society functioned. Rather than deal with interesting bits of early medieval law itself (which will go into another post called "Thinking Medieval: the Law - Oh Fine"), I'm going to cover trials and the enforcement of punishment in this post.

This post doesn't contain any gameable content, but I'll be referring back to it later.

Side Note: A Modern Trial

Goes something like this, in a very condensed form:

A person is accused by the state (for serious issues) or by another person (for minor issues or disputes that are not criminal). Both parties meet in a set location, at a set time, and present their cases with the aid of professionals. The accused goes second so they are able to respond to all the charges against them. At the end, the judge - an impartial representative of the state - decides if charges have been proved beyond a reasonable doubt. Alternatively, the judge receives the verdict from a group of people who have listened to the entire trial and formed an opinion. In either case, the judge then imposes a judgement, based on the demands of both parties and existing law.

But what if you don't have an impartial state representative? What if you don't have trained advocates? What if the social apparatus required for a trial doesn't exist?

Revenge is a Dish Best Served by Relatives

Someone stole your cow. You get your family together, get some axes, and march over to the thief's house and take your cow back.

Someone killed your brother. You get your family together, get some axes, and march over to the murderer's house. Only he's got his family there too. There's a fight. At the end, three people are dead... and their relatives are all looking for axes.

Blood feuds are messy and complicated and a terrible way to solve problems. Virtually all early law codes are prefaced with "We, the King, really hope this stops the fucking blood feuds." It eventually worked. Personal vendettas were outlawed and replaced with trials. Justice became a thing disconnected from immediate personal responsibility.

Early medieval rulers, sick of blood feuds and fighting and endless individual cases, used their power to publish books of laws. The laws are appealingly simple and follow a few very basic templates:

"If you do X thing, you must pay Y fine."
"If you are accused of X thing, you must to Z to clear your name or suffer death."
"If X happens, it is OK, and N person is in the right."

Separate the Wheat from the Chaff: Courts and Trials

A court used to be a very different thing. It was literally the court-yard or hall of a noble or warlord or landowner. Two parties, subordinate to the noble, would appear and offer their cases. The noble would decide, based on custom and the books of law, the truth of the matter, and set a fine or a punishment. If you didn't like the punishment, you could, if the law allowed, instead take a trial to clear yourself of guilt.

I want to establish this now: medieval trials, by ordeal or compurgation, were not jokes. They aren't the nonsensical bits of theater you might have read about online.Trials were mostly used when guilt or innocence could be determined by no other method.

Harold Swears His Oath. From the extremely baffling "Zigzag Journeys In Europe", 1882.

Twelve Friendly Men: Trials by Compurgation 

Clearing a charge by compurgation is one of the oldest methods of trial known. A person charged with a crime would appear on a set date with twelve oath-takers and swear, on an altar or a sword or a holy stone or something equally revered) that they were innocent. The twelve oath-helpers would then swear that the accused had truly made the oath.

To modern eyes this seems ridiculous. Kill someone and all you need to do is find twelve people who will swear you didn't do it? How could anyone be convicted under this system? It's not justice - it's a popularity contest!

Well, yes and no.

Take debts, for example. I loan you $100. When it comes due, you refuse to pay and say the loan never happened. We go to court. You need to assemble twelve people who will stand by you while you swear not to have accepted my loan.

Now maybe you can find those twelve people. But they have to be people you know. Your friends, your neighbors. Your family. In a small village it could literally be every landowning male over the age of majority. And you have to stand in front of them and swear, and they have to believe you.

If even one of them remembers the loan (we'll get to that in the post on property), you are done. They won't uphold your oath. Not only that, but everyone now knows you tried to cheat. You won't have an easy time getting loans in the future. In a small community, that could mean economic disaster. The entire community - all twelve of your oath-helpers - have a very deep-seated interest in keeping the system going. Today, you avoid paying me back. Tomorrow, it could be one of them.

Or consider a murder case. You went out for a walk with someone and they didn't return. Their body was later found in a ditch. The evidence is unclear. Maybe you did it, maybe you didn't. There are no criminal investigators or detectives. The victim's family brings the case forward. You assemble twelve oath-helpers and meet in front of an altar. Your alleged victim's family is also there. They've brought weapons (or nosily left them outside).

You have to stand there and swear your oath - word perfect, no hesitations or stuttering - in a very high pressure situation. And then all twelve of your oath-helpers also have to swear too, while looking directly at the faces of your alleged victim's family and their very shiny axes. No doubt, it will occur to them that false swearing on your part could very well lead to a massive feud that involves everyone. It doesn't need to, though. They could just... not take the oath, hand you over, and end the trouble before it starts, or accidentally stumble over the words to the same result. Are they willing to risk it for you? Are you willing to risk their lives?

Trial by Compurgation could be called "a trial by one's peers", in a much more visceral and immediate way than any modern jury trial. You need to convince twelve people to enter into a solemn pact with real consequences before the eyes of God and all your neighbors. It's a modern conceit that the law is blind, and that two people who commit the same crime will be punished equally. Medieval laws were also theoretically blind (or, more accurately, cared about class but not about individuals), but their trials were wide-eyed and utterly pragmatic.

For example, if a man well known in his community - an upstanding person, loved by all, generous, fully integrated into the structure of the village, with a large family and spotless reputation - if he killed a stranger or someone who was despised by everyone... well, what good would it do anyone if he was punished for it? God would see to his sin, but in the mortal world... was it a crime at all? Such a person would have the entire community at their back, ready to swear that the oath the person took was true... provided there was even a sliver of doubt.

But if there could be no doubt, then the oath-helpers could not in good conscience swear that the accused had told the truth. Making a false oath was a weighty and torturous thing, but they might do it anyway.

Or take a man who was despised by his community - a cheat, an oath-breaker, a scoundrel, a person of no worth and no connections. When he is accused, twelve oath-helpers would not appear, and he would be convicted or fined or otherwise punished. The guilt of the matter is barely important - he could not find twelve people who were willing to say he was telling the truth. Just as the community could save you, it could also damn you.

Ordeal by fire, late 12th century

Laying Down the Law: Trial By Ordeal

If you knew you could not find twelve oath-helpers, or if the law demanded it, you could instead accept trial by ordeal. You would be subjected a test. Your survival or another measurement would indicate your innocence or guilt. You still had to swear an oath attesting to your own innocence, with all the usual religious and social consequences if you broke it.

In theory, if you were innocent, you'd agree to the trial knowing you would suffer no harm. If you were guilty, you feared failing the trial and suffering both an injury and a fine, so you'd settle your case or confess.

Trial by Fire
Complete the following without wincing or stopping.
-Walk over red-hot ploughshares
-Hold a ball of hot iron in your hand and walking a set distance
Your wounds would then be bandaged and examined by a priest after a set period of time (3 days later, for obvious biblical reasons). If they festered or rotted, you were guilty. If they healed well (or if you were unharmed), you were innocent.

Trial by Water
-Plunge your hand into boiling water (to the wrist for a minor offense, or to the elbow for a major offense) and retrieve a stone or iron ball. If you complete the task, your arm is then bound and examined by a priest after three days.
-Sink in cold water. If you float, you are guilty. If you sink, you are innocent.

Trial by Ingestion
-Eat a consecrated piece of bread and cheese. If you choke or fail to swallow, you are guilty. Used only for minor offenses, and even then, mostly for offenses where a personal oath was too minor, but a formal trial was too severe.

Aside from the trial by consecrated sandwich, the entire thing sounds very brutal and unpleasant. How could any modern person possibly consider this to be justice?

If Trial by Compurgation was, effectively, trial by jury, then Trial by Ordeal is a trial by judge. The judge in this case was God... in theory. In practice, it was the priest. The priest administering the trial could bias the results significantly. (The paper I linked to is important.) They acted - unofficially, of course - as an impartial arbiter. The law might be blind but the local priest wasn't. Priests also tended towards mercy and forgiveness and were often unmoved by mob violence.

A trial by fire could be adjusted using any of the following methods. We don't have any clear written evidence that these were used, but the circumstantial evidence is compelling.
-Temperature adjustment. "Red hot" varies by 300 degrees Celsius, give or take. The priest in charge of the trial oversaw the heating of the iron ball or the iron ploughshares, and could judge the temperature accurately enough.
-Cold hands or feet. If you have to handle hot objects, the colder your skin and flesh are, the better. Churches made of stone are often very cold. Long periods of pre-trial prayer in bare feet or with your hands pressed against the stone could help prevent injuries without arousing any suspicion, even from the accused.
-Ointments and bandages. how the wound was bound, whether ointments were used, and the final condition of the injury were all subject to interpretation by the priest.

Trials by water could also be adjusted.
Boiling water:
-It is obvious when water boils and, no matter how much fuel you add, you can't get it to boil hotter, only faster. However, as most people know, you can have plenty of steam and bubbles appear before the water reaches its maximum temperature.
-Cold hands or arms. Again, ensuring your hands are cold would help you succeed in your oath.
-Determination and encouragement. The priest could encourage the accused to strike boldly, working them into a state of fearless preparation. Or they could cast subtle doubts and promote hesitation and a longer immersion in the boiling water.
-Ointments and bandages. How the wound was bound, whether ointments were used, and the final condition of the injury were all subject to interpretation by the priest.
-Body hair. I can't find the paper, but I've read that older men, in some cases ones who would not survive a dip in ice-cold water or could not be expected to hold an iron ball steadily, would try the trial of hot water in disproportionate amounts. According to the author, thick arm hair traps insulating air close to the skin, which allows for easier retrieval of a sunken object. I'm not sure if I believe it but it seems vaguely plausible.

Cold water:
-Women and fat men float. Skinny men sink. Since priests could select the ordeal, or offer suggestions to the accused over which ordeal to select, they could bias the results of the trial accordingly. Women almost never participated in trials by cold water until witch hunts became popular.

And as for the trials by ingestion... ever tried to swallow dry rye bread and sticky cheese on a dry throat? Guess who controlled access to water.

So a priest could protect the innocent and ensure the guilty were punished. They could act as the moral centre of a community, unwilling to let an innocent man die for a crime he didn't commit, or able to punish a powerful man the law could not ordinarily reach. The overwhelming majority of people who submitted to trial by ordeal were acquitted.

Trial by Combat

The most well known and therefore least interesting types of trials. Swear an oath. Nominate a champion. Fight to submission or the death. God picks the winner, so if your champion won, you were innocent. It was hated by kings and rulers and frequently legislated against or abolished completely.

Centralizing Power and Authority

There are a few (ok, more than a few) problems with the trial system described above. It only works on a small scale. Once a community grows large enough that individuals are no longer directly accountable to all other inhabitants, false oath-taking becomes feasible. Once individuals accrue enough power or money to influence the system the system collapses.

The burden of enforcing the law was placed on the party that was wronged. If you were murdered and had no family, your murder escaped punishment. Widows, unmarried women, and children with no family were also left unprotected by the law. Without someone to bring their case to trial, nothing would be done.

Rulers had solved the problem of personal law and changing customs by publishing law books. The next step was obvious.

The King's Justice

What if the law wasn't personal? What if it proceeded from a source - the King? What if, instead of a person's relatives bringing a lawsuit to court, the King himself could do it?

After all, murder is like stealing a life from the King. Theft from anyone is theft from the King.

The process of appeals also began to enter into the law books. If a local noble decided against you for personal reasons, or because he was bribed, or because you didn't bribe him, you could bring your suit to the King. This innovation made the King directly responsible to - and for - his people.

To help with this centralization, official judges (known in some place as sheriffs or by a hundred other names) would carry out the King's laws. Local nobles would be freed of the burden of criminal cases. And because trials, ordeals, and other contests were messy and challenged the King's authority, they were slowly abolished or changed. Trial by judge or jury and the true determination of guilt or innocence would be performed.

Of course, this was a huge mess. Minor issues were still decided by the local nobles. Laws were rewritten, ignored, bungled, dredged up, and completely misinterpreted. Still, the slow accretion of rights and powers in the hands of the sovereign began to shape the late medieval world.

On apprehending in his forest three young squires of Laon, equipped with bows and arrows but no hunting dogs for taking important game, Enguerrand IV had them executed by hanging, without trial or process of any kind. Impunity in such affairs was no longer a matter of course, for the King was Louis IX, a sovereign whose sense of rulership was equal to his piety. He had Enguerrand IV arrested, not by his peers but by sergents of the court, like any criminal, and imprisoned in the Louvre, although, in deference to his rank, not in chains. 

Summoned to trial in 1256, Enguerrand IV was accompanied by the greatest peers of the realm - the King of Navarre, the Duke of Burgundy, the Counts of Bar and Soissons among others, grimly sensing a test of their prerogatives. Refusing to submit to investigation of the case as touching his person, honor, rank, and noble heritage, Enguerrand demanded judgment by his peers and trial by combat. Louis IX firmly refused, saying that as regards the poor, the clergy, “and persons who deserve our pity,” it would be unjust to allow trial by combat. Customarily, non-nobles could engage a champion in such cases, but King Louis saw the method as obsolete. In a long and fiercely argued process, against the strenuous resistance of the peers, he ordered the Sire de Coucy to stand trial. Enguerrand IV was convicted, and although the King intended a death sentence, he was persuaded by the peers to forgo it. Enguerrand was sentenced to pay a fine of 12,000 livres, to be used partly to endow masses in perpetuity for the souls of the men he had hanged, and partly to be sent to Acre to aid in the defense of the Holy Land. Legal history was made and later cited as a factor in the canonization of the King. 

-Tuchman, A Distant Mirror, Chapter 1

Source unknown. The Execution of Margaret Clitherow.

How Do You Plead?

When the Fourth Lateran Council in 1215 banned members of the clergy from participating in trial by ordeal, a legal dilemma arose in England that was to last for centuries. The rest of Europe avoided this problem by, ironically, having a less diligently centralized system of law and more creative interpretations of existing laws, as well as the use of Trial by Compurgation well after it was abolished in England.

After a period of uncertainty and confusion, trial by jury was propelled - by royal force - into widespread use. Rather than letting God test the merits of a case, 12 or 20 peers of the accused would decide the verdict, in an adaptation of the oath of compurgation. When the accused swore he was innocent, he now had to convince his jury/oath-helpers to agree that his oath was valid.

This system was probably no more impartial than trials by ordeal. As we've seen, it may have been even less "just". The lack of divine intervention - trial by man, not by God - was terrifying. Many people refused to submit to such a trial, and, to put it mildly, that was a problem. The law could not convict someone who refused to accept a jury trial but there were no other options. Innocent or guilty, the courts could judge you, but if you remained silent they were powerless. The accused was not presumed to be innocent.

Prison forte et dure was invented to fill the gap. In 1275, Edward I declared that "notorious Felons, which openly be of evil name, and will not put themselves in Enquests of Felonies that Men shall charge them with before the Justices at the King's suit, shall have strong and hard Imprisonment, as they which refuse to stand to the common Law of the Land: But this is not to be understood of such prisoners as be taken of light suspicion."

Essentially, if the accused won't agree to a trial, put them in chains, leave them on a dirt floor, and make life unpleasant for them. It makes a twisted kind of sense. But by some obscure twisting process prison forte et dure became peine forte et dure, which means "strong and hard punishment" in legal French, but more importantly, in English, really means "squish someone with rocks until they agree to a trial or die."

You might assume a trial by jury couldn't be worse than being crushed to death by 400lbs of rocks... and you would be right. However, if you didn't go to trial, you couldn't be convicted. And if you were guilty anyway, or certain you'd be executed, you might be tempted to be crushed to death instead. Without a trial or a confession, your property could not be confiscated. You'd still die, of course, but you would die with your name intact, your family provided for (or spared from torture), and a clear conscience, in the case of arbitrary or political trials.

The mills of justice grind slow, and for a while, they also squished like a waffle press.