Introduction 

The decline of the Judicial Ordeal: From God as witness to Man as witness, starts with the birth of a jury trial. Many years back, two legal systems had appeared: common law of England and the civil law of the Continent. In both the laws, historians have particularly focused on one development, which is the decline of the judicial ordeal. In the back A.D 1000, Illiterate and violent European societies often used some form of the judicial ordeal. The most common forms being, first, (para 53) the ordeal of hot iron: wherein the accused was made to grasp a red-hot iron in his bare hand and carry it for several feet, after three days the bandage was removed, and the burn was noted, if the burn was healing, then it meant that the God had declared the accused to be truthful.

Second, the ordeal of cold water: It required the accused to be lowered into a pit of water constructed for the purpose, if the person sank, it meant that he had spoken the truth and the opposite if he floated. The third one is the ordeal of trial by battle, which often resulted in death. It was usually restricted to the high-status persons, and if they did not want to fight, then they named a “champion” to fight for them, who was very well paid. During this procedure, a priest was present to pray to the God to bless the hot iron or the water, and to deliver its judgment. The ordeal involved a procedure for invoking “Judgment of God” in order to determine the fate of a person accused of the criminal offense. Its purpose was to establish facts in the case of uncertainty. But, in 1215, a critical moment came when the Church in Canon 18 declared the prohibition of clerics in assisting the judicial ordeal as by participating in the process, the clerics were polluted by the judgment of blood. Subsequently, the common law replaced the ordeal with the jury trial, which means that the voice of God was replaced with the voice of the people. And continental law developed an “inquisitorial” procedure, a method involving judicial torture.

Analysis 

The main problem identified with the ordeal was that the human witnesses were unaware of what had happened, and so some magical means of fact-finding was required. In the middle ages, the witnesses resisted testifying under oath as doing the same against their neighbors was considered as an uncomfortable and risky business.  During the twelfth and thirteenth centuries, church and the royal officials incorporated the program of putting local human witnesses under pressure to testify. The judges also faced peril as the decisions were no longer deferred to God. 

The jurors were the twelve sworn witnesses, who were required by law to speak the truth, they were also the ones who acted like judges with authority to pronounce “guilty” with respect to the judgments involving blood cases. 

There were two main cases that could be defined under criminal- cases of theft and homicide. 

The ordeal was exercised as a last resort and was performed if the following four conditions were met.

(1) No formal accuser was presented- According to the medieval authors, the ideal proceeding started with a formal accusation. The person who brought the charge had to prove the offence by either fighting a trial by battle, or by any other method. But if he failed to do so, then he had to face serious consequences. 

(2) The accused did not confess to the crime- According to the standard medieval canon law, the purpose of an ordeal was to torture the accused into confessing, and if it was done then the matter came to an end.

(3) No witness testified- ordeal did not take place if the witnesses came forward, sworn testimonies was considered as a way to resolve the matter. In such situations, where no witness testified under oath, the ordeal took place because the “voices of the public” declared the person guilty of the crime. 

(4) The oath of a high-status person or an honorable man could not resolve the matter- It was the opposite of the confession. The oath takers could swear as individuals or as gathered supporters known as compurgators; the oath-taking was associated with the hierarchical social status. In other words, the higher the status of an individual, the more “oath-worthy” he was considered. 

The ordeal permitted the non-oath-worthy persons, or the low status persons to take God as their witness, but not by words, instead by submitting themselves to the pain. Thus, the ordeal of hot and cold water changed the person from dishonorable to honorable. 

In cases of self-defense also, wherein there was no eye-witness available, the person claiming self-defense had to undergo the ordeal of hot iron or cold water to prove his truthfulness. However, in a case where the person declines to admit to his deed, then the person was kept in prison for a year and a day, under harsh circumstances, to see if any formal accuser comes forward, or if he takes up the ordeal of hot iron. Still, if neither of the two takes place then he was delivered from the prison as if he had been acquitted of the crime. 

Most of the authors have rejected the idea of ordeals as a method of investigation, claiming that the “lack of human testimony” is not similar to “lack of evidence.” Ordeals took place because of the lack of witnesses and accusers to testify under oath, but not because alternative methods to the investigation had failed. It merely is an error that makes it hard to understand the moral theological importance of the jury trial. 

During that time, police investigations were much rarer than today because, in the deeply rooted small societies, people often knew whether the accused is guilty or innocent, but no sworn testimonies could be noted. The witnesses always hesitated to testify not only because of the fear of death, but also because they did not want to take the guilt of the blood upon themselves. Also, the witnesses did not want to undergo the spiritually perilous business of oath-taking because taking an oath required invoking God as a witness, and they were not motivated to do something they were uncertain about. 

In the early twelfth century, the English records state that the locals used to pay kings a significant sum so as to be excused from testifying. This shows that people could take up a financial loss but could not take the obligation to testify or judge. 

This new canon law was considered as revolutionary because it compelled people to testify. It happened to protect the innocent and punish the guilty. 

Similarly, the high-status persons also resisted taking an oath to such an extent that they were happy doing trial by battle but could not give a purgative oath. One reason for why such people avoided oath was that they were highly attached to their personal honor and would prefer a fight to the death. Another reason was that they were not willing to face the temptation to perjure themselves. 

After the decline of ordeal, the procedure established was oriented towards the proof of facts in contrast to the ordeal wherein the objective was to find the worthiness of a person by invoking the God as a witness. 

The drama of the decline of the ordeal was primarily a drama of compelled testimony, compelled accusation, and the compelled confession because if there was no judgment of God, then the witnesses, accusers, and confessions had to be compelled. 

The ordeal, being a religious event was held in the presence of the bishop’s minister and his clerks, or it was conducted in the church. The Christian theologians worried that the clerics would be polluted by bloodshed while pronouncing the blessing during an ordeal. They were also concerned about the moral dangers that confronted witnesses. Theologians arguments against the ordeal were that the rate of acquittal was very high in association with the Judgment of God. Churchmen, like secular leaders, were also concerned that many of the crimes went unpunished. In cases of theft, ordeals sometimes led to the conviction of innocents. 

This judgment of God went into decline when the reformers found two evil with the process of the ordeal. First, it was argued that the ordeal “tempted god”, which meant that ordeal was an illicit attempt to induce God to perform a miracle. In the doctrine of the temptation of the God, instead of the God taking a man’s test, man puts the God to test, by asking for a miracle. Ordeal is a dangerous form of tempting God as people seek God’s help when they’re themselves capable of finding out the truth. Second, the ordeal polluted the ones involved in it with blood. For an ordeal to be effective, it required the blessing of a priest. And so, it was argued that pronouncing such a blessing polluted the clerics with blood. The doctrine of the temptation of God involved the moral responsibility of the witnesses. However, the doctrine of clerical bloodshed included the judges. 

The ban of clerical participation in an ordeal led the reformers to develop alternative procedures that would avoid the function of clergy in the judgment of God. Under the new trial systems, the priest was replaced by a judge but to fully solve the problem of ordeal; abolition was not enough, it also required the establishment of procedures that protected the judge himself from the fear or danger of bloodshed.

Conclusion

The decline of the judicial ordeal was subjected to two different lines of scholarly interpretation. One line supposed that ordeal was about factual proof (para 55), and that it involved a change “in the nature of fact-finding” from God to humans. And, the second line interpreted that the facts with respect to the guilt or innocence were already known, what mattered was the “moral responsibility of the judgment” (para 56). According to professor Whitman, the first line is presented as misleading, whereas the second line is correct. 

After the canon 18 of the Fourth Lateran Council prohibited the involvement of clergy in an ordeal, it made a moral dilemma for the judges, parallel to the one created for witnesses. For the judgment of God to be abolished, witnesses ought to give sworn testimonies and take the responsibility of judgment. The judges also faced the same scenario. And as for the clerics, the abolition of the ordeal meant the end to their services, but it also meant that now judges have to avoid turning into “ministers of bloodshed”, by becoming “ministers of the law”. And so, the dilemma of moral responsibility established by the decline of the judicial ordeal shifted the burden of judgment from God to the two main classes of human actors- judges and witnesses.

References 

Whitman, J. Q. (2016). The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (Yale Law Library Series in Legal History and Reference) (Reprint ed.). New Haven and London, England: Yale University Press.

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