The Legitimacy of Medieval Proof

H. L. Ho

Journal of Law and Religion, Vol. 19, No. 2. (2003 - 2004), pp. 259-298.

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2591 LEGITIMACY OF MEDIEVAL PROOF 26 1

each of the three practices may be briefly sketched. There were many
forms in which a trial by ordeal could take. In the cold water version,
the defendant was innocent if he sank when thrown into the depths. and
guilty if he floated. Where the ordeal was by hot water or hot iron, the
defendant had, in the first, to pick an object fiom a cauldron of boiling
water, and, in the second, to ca1-1-y a piece of heated iron for a distance of
nine feet. In both cases, the hands were then bandaged. Inspection took
place on the third day. If healing had set in, the defendant was
proclaimed innocence; festering was a sign of guilt. In the wager of law,
the defendant's case was proved if he and a sufficient number of
supporters (compurgators) successfully swore the prescribed oath in
denial of the charge that had been made against him. Should the trial be
by battle, the parties or their champions engaged in regulated combat.
with judgment going to the victorious side.
These three modes of proof prevailed and co-existed in Western
Europe during the early and central Middle Ages. They have in
common a spiritual element. However, differences exist in the
involvement of that element.6 While the divine will is believed to be
manifested in the conclusion of an ordeal or a judicial duel, God's
judgment was not expected always to be revealed immediately at a trial
by ~ o m ~ u r g a t i o nDivine
.~ intervention differed in form, degree and
impact: the common belief was that, in a duel, God contributes to the
result by fortifying, if necessary, whatever strength the innocent already
has, whereas in the fire ordeal, it is entirely by His intervention that the
normal consequence of bum fails to manifest. In both examples. God
must act to rescue the innocent. But, sometimes, intervention was seen
as going towards exposing the guilty, as by making him falter as he tried
to take the oath. At other times, it was believed that divine intervention
went both ways; it was, for example, perceived as equally the cause of
the guilty floating as of the innocent sinking in the water ordeal.
Despite variations and differences, these methods of proof may be
examined as a group. This is not only because, together, they constitute
a system of alternatives but also because, at a higher or theoretical level,
they share certain presuppositions and characteristics.

6. The s~gnlficanceof the differences is stressed by Robert C. Palmer. Ti-in1b?.01-(leal.8 7

Mich. L. Re\. 1547. 1548 ( 1989).
7 . Trisha Olson. QfGichoiitnie~it:Tlie Pos~iiigofrlie 01-derrlsrrrid ilie Rise o f /lie Jiri:~.Trirrl.
50 Syracuse 1.Re\. 109. 1 19- 120 (2000). Cf: J.P. K~rsch.O~.derrls,in Crrtl~olicCtc:~..\.. 1 1 . 276.
278 (Charles G . Herbermann el al. eds.. The Encyclopedia Press 1913) (suggesting that a trial by
oath is "a means of establishing the truth. accompan~edby a solemn calling upon God. but \\hich
is not in any sense a judgment of God").
 JOURNAL OF LAW & RELIGION [Vol. XIX

A. The Role of Facts in Adjudication

A distinctive feature of contemporary legal adjudication is its fact-
orientation. It is true that disputes in court may not be over facts, and
often are not; sometimes, cases are argued at first instance on "agreed
facts," and appeal judges deal mainly with questions of law. But, even
where the facts are not contested, they are incorporated into the
justification for the court's decision. Factual generalizations are
embedded in legal rules."onsequently, the adjudication of every
dispute under a legal rule is based on what are believed to be, or are
taken as, the facts of the case.
However, nothing in the logic of dispute resolution says that it
must be based on proof of facts. Two parties may end their quarrel over
who has title to a chattel by tossing a coin.9 There is the fact that the
coin landed in favor of one side. But that fact arose by chance and it
determines, rather than proves, entitlement to the chattel. This is a
purely procedural way of resolving the dispute.'' Allocation of the
chattel is not based (directly) on any principle of substantive justice.
This method will not do in a modem court of law.'' We object to
the arbitrariness of deciding by the toss of a coin. Implicit in this view is
a theory of probabilities that is anchored on the premise that the side on
which the coin lands is a random event. With the introduction of legal
rules or principles, facts enter adjudication. If we adopt the rule that the
first in time prevails, we take on the need to decide, as a matter of fact,
whether A found the chattel before B. Another implication is that facts
which are irrelevant under the governing rule are excluded from legal
consideration: for example, the law may be such that it matters not
whether one party needs the chattel more than the other. Principles of
law necessitate fact investigation, and, at the same time, define and limit
its scope.

8. Hence the maxim er,fi~croorirr~i.ills: "laiv is deriied from a fact." Max Radin. Er Focro
111s:Ex lure Fcrctrrnl. In l~ireip~-err~rioi~s o f ,Wader-17 Leg01 Pllilosopllies-t:r.rc~~~ 111 lfoi7or11-o f
Roscoe Po~liid578. 582 (Paul Sayre ed.. Oxford U. Press 1947). Or. more accurately: per ~ ~ I L I I I I I I
cog11o~cirt1r ills: "by means of a fact. a e recognize (or we know) the law.'. Id. at 583.
9. An example. much discussed by legal anthropologists. of a fonn of adjudication that is
not fact-based I S the Eskimo song contest. See e.g. Max Gluckman. l'olrtics, La\r. ciild Ritr~rrlii7
fiibol Socierj. 303-3 13 (Aldine Pub. Co. 1965).
10. See John Rawls. .4 7Xeo13.oJJrt.\tic.e 75 (Belknap Press 1999).
11. Re A (Ci71ld1-en)(Coiljoi~ledTu.rils: S~irgicnlSepcr~-niior~) [2001] Fam. 147. 203 (Eng.
C.A.): "The la\+ cannot say. 'Heads 1 i\lln. tails you lose."' Much fun was made of Judge
Bridlegoose's use of this method of decid~ngcases in Franqois Rabelais' sixteenth century comic
novel Gc~r;gciiirl~e~ uild Pc111tcrg171el354-355. 356-357 (Burton Raffel trans.. W.\Z'. Norton & Co.
1990). But this option is perhaps not as absurd as i t seems: Neil Duxbury. Rc111dotn./~rsrice-011
Loiiei-ies cr~lciLegell Decisioi7-:Glrihirig espec~allych. 5 (Clarendon Press 1999).
2591 LEGITIMACY OF MEDIEKAL PROOF 263

But suppose a people with a mentality that excludes the idea of

"chance."'* They sincerely believe in divine intervention and that how
the coin lands is an expression of the divine will. To the extent that God
is believed to be necessarily just and the flip of a coin is accepted as an
effective channel through which He speaks, the outcome must be
accepted as just. It does not call for decision whether A found the
chattel before B, or for that matter, whether A needs it more than B. For
the believer of immanent justice, these facts, ultimately, do not matter.
The connection between divine justice and medieval proof is complex; it
is an important point to which we must return.

B. Fact and Law: A Holistic Approach to Adjudication

The conceptual distinction between fact and law is central to
contempol-aly legal analysis. It is through this distinction that proof is
seen as a generally discrete aspect of adjudication. The situation was
different in the Middle Ages; issues of right and wrong were not
analyzed as presenting separate questions of fact and law." This
inexactitude was characteristic of the pre-scientific outlook typical of a
time when "life was much less compartmentalized than it later became,
much more a matter of total involven~ent."'%at is visible, instead, is
a different divide, a distinction between the initial decision of whether or

12. Or~glnally.the
Greeks and the Romans . . . regarded the niorld as pallly determ~nedby chance [but the]
. . . s ~ t u a t ~ owas
n radically changed by Christ~anity. For the early fathers of the Church
the finger of God was everywhere. Some causes were o\ert and some were hidden. but
nothing happened without cause. In that sense nothing \?as random and there \\.as no
chance.
M.G. Kendall. Tlie Regirirtirlg~o f (r Pr~obcrbrlirj.Calcrrlzrs. 43 Biometrika I. I I (June 1956).
13. Mirjan DainaSka. R~rrot~rrl urid 11-~~crtioriril Proo/Revr.vireti. 5 Cardozo J. Intl. 6( Comp. L.
25. 25-29 (1997). Adjudicat~onproceeded on the basis of "folklau." (Harold J. Berman. Lon irriti
Re~~olrrtiori-Tlie hi-rtitrtio~io f rlle If/e.rreui Leg01 li.tr(iitiorl ch. 1 (Harv. U . Press 1983). of
"custom and wise counsel." Baker. sr~prcrn. 5. at 1: see M o m s S. Arnold. L u I ~rrrid . fitr 111 rhr
.l/lediel~rl Jirr?. Tricil. Oirt ofSig1i1.0 1 1 1 o f .lliriri. 18 Am. 1. Legal Hist. 267. 275-280 ( 1 974). and of
broad ideas of right and wrong. of what conduct desenes punishment. Colman. sirpr.cr n. 3. at 580:
Paul Vinogradoff. Villc~iriageirl E11glrrr7d-Essr~~sit7 Erlglislz ,l/ledirre~;crlHistor-! 377 (Clarendon
Press 1892): and S.F.C. Milsom. Historicnl Folrtidcrriori;, o f the coniniorl Lnh. 39 (2d ed..
Buttenvorths 1981) ("In the whole process the only substantive rules Lisibly at uork are those
implicit in the canon of acceptable clain~s."). There was not then "Law" in the de\,eloped sense of
a logical system of rules operating on clearly defined and categorized fact-situations. As Milsom
argues. "legal de\.elopinent consists In the increasingly detailed consideration of facts" and "the
limit at any time is the extent to which the legal process presents the facts for legal handling."
S.F.C. Milsom. L(r13.olid Focr iri 1.egrrl Devrlopri7erii. 27 U . Toronto L. J. 1. 1 ( 1 967). On a
similar theine see Joseph R. Strayer. The Ili-ir o f ~l'ol~el Disseisiri iri .'iroi.n~or74~.
trr tlie Old ofille
771rr-/eerirliCerirlrr:~..in Mrdie~,olStcirecr-crfi (/lid T l ~ ePerspec-rives o f Histor?. 3 (Princeton U . Press
1971).
14. Berman. sr~prcin. 13. at 59.
2 64 JOURNAL OF LA W & RELIGIOhl [Vol. X I X

how a pai-ty, or someone in his stead, should be put to the test (what
Bigelow calls the "medial or proof judgment")" and the conduct of the
test itself. It has been noted that human decisions were concentrated on
the first stage, and when the matter was referred to God, proof followed
"as of c o ~ r s e " ; 'judgment,
~ on this view, preceded proof.'7 This
observation is not entirely accurate for the result of the ordeal did not
speak for itself; it required interpretation. Consequently, there is room
here. as at the stage of the medial judgment, for the intrusion of human
element.
A holistic attitude to the settlement of disputes underpinned
medieval proofs. We see it, for instance, in the nature of the oath taken
by the parties, the secta (the plaintiffs sponsors)'%nd the compurgators
(the defendant's oath-helpers).'9 In the oath, an assertion or denial was
expressed broadly of the justice of the cause; there was no descending
into factual details. A "'true' oath pai-took of a man's normative
evaluation and not simply his belief in the oath's coi-respondence to an
empirical reality."20 Indeed, compurgators were not required to have
any personal knowledge of the facts underlying the dispute:" they swore
only "to the credibility of their chief and the purity of his oath"22 and
have been compared to character witnesses of today.23 The "truth" to
which they swore canied not purely the intellectual meaning of

15. Melville Madison Bigelow. Iiisror?: o/ Procedrrre 111 Gigluri{f?ori7 the iVorrlrrr17 Co~iqrre.sr
ch. Vlll (MacMillan 1880). The med~aljudgment detennined "not only what the trial should be.
but how 11 should be conducted and when. and uhat the consequences should be of t h ~ sor that
result." See James Bradley Thayer. A I'reli1~iir7ur:1.Trentise or1 Ev~dericeut rlie Coriiniori L N H 9
(Rothman Reprints 1969) (originally published 1898).
16. William Holds\vorth. A Hisioc~.of E~iglr.th 1.m14. \ol. 1 . 31 1 (A.L. Goodhart & H.G.
Hanbury eds.. 7th ed.. Metheun & Co. 1971).
17. J . Laurence Laughlin: Tlie Ariglo-Scr.ro~iLegcrl P r o ~ e d l r ~ in e . ES.SII?;S ,41igIo-S(r.\.ori L U I I .
183 (Little. Brown. Sr Co. 1876): F.W. Maitland. Tile For-nis of Actron crr Corii~iioril.rrlr-.l
C'ozrr-~eo/Lecrirres I 5 (Cambndge U . Press 1936): and Baker. srrprn n. 5. at 6.
18. See Frederick Pollock. GigIiIi Lo11 Refor-e the .'\brnirrri Co~iqlresr.14 L. Q. Rev. 291. 294
(1898): Holdsworth. srtprrr n. 16. at 300: and Henry C. Lea. Sr~prfitiriorr arrrl Force. Tor.rlo-e,
Or-clerrl, rrnd TI-rtrl O j . Cor~ibcrtiri itilediel'rrl Lnit. 81 (Barnes & Noble Books 1996) (originally
publ~shed1870).
19. Dorothy Whitelock. E I I ~ I I JHistor-icnl
II Doc1rr.ire171.s.500-1042 vol. 1 . 335 (David C.
Douglas gen. ed.. Oxford U. Press 1955): DamaSka: sirprcr n. 13. at 26: Max Rheinstein. .Vci.u
Il/eDer-or1 Lnlt. iri Ecorio~iij:crrid Sociey 227 (Har\ . U. Press 1954): and Lea, sirpro n. 18. at 55.
20. Olson. sirprrr n. 7. at 123.
21. Thayer. srrprrr n. 15. at 25: R.H. Helmholz, CI-inre, Cor~ipr~rgrrtiori ni7d /lie Corirtr o f the
.lledrevol Ciirrrcli. 1 L. 8r Hist. Rev. 1. 13 ( 1983).
22. Laughlin. srrprrr n. 17. at 297. See Willialn Forsyth. Hi.rrory o f Tricll Oj. Jirr?. 62 (2d ed..
James Appleton Morgan ed., James Cockcroft & Co.. 1875): and W.J.V. Windeyer. Lecrrrr.es 011
Lepcrl Hrsro,:,. 12 (2d ed.. Ambassador Press 1957).
23. Van Caenegem. sirprcr n. 2. at 77: and Scott Rowley. The Conij~ererrc;l.of Witriesses. 24
lo\+a L. Rev. 482.485 ( 1 939).
2591 LEGITIMACY OF MEDIEVAL PROOF 265

conespondence to external facts, but, more importantly, the (now

unfamiliar) ethical meaning of "fidelity. loyalty, faithfulness" to the
person they were s ~ ~ ~ o r t i nSimilarly,
g . ~ ~ although a judicial duel was
held only where there was "[an] affirmative oath of a witness" who
"could swear to what he had seen."'5 the use of a blanket denial meant
that no specific point of fact arose for d e t e r m i n a t i ~ n . ~Thus,
~ one
comment has it that "the outcome of combat exists independently of the
notion of cognitive truth."*' Similarly, of the test of ordeal, it was
believed that God, through His verdict, dispenses such justice as is
appropriate in the light of the circumstances, considered as a wh01e.'~ A
party's overall character and reputation were as much at trial as the truth
of the allegations made against him."

C. Rituals and Religion: The Emphasis on Form and Procedure

Law and religion were inter-twined in medieval modes of proof.
The two were connected at the conceptual level, for the outcome was
thought to bespeak the command of God. They were also intertwined at
the institutional level. Proof by ordeal and compurgation (but not the
judicial duel)30were originally suppor-ted and officially endorsed by the
Church: its custodian of the ordeal instruments, the nature of the rites,
the prayers used, and the fact that they were conducted or supervised by
the clerics left this in no doubt." Such was the dependence on the
support of the Church that proof by ordeal had to be abandoned after the

24. Richard Firth Green. A Crisis o f T,~~~rlr-L~re~-nrlrre Etiglmnd ch. 1.

o ~ i dLrrw. in R~ccrrrlirr~i
101-102 ( U . Pa. Press 1999).
25. Milsom. Hisroritnl Fotirrdrrrio~i.~ o f the Conrnrort L N I I sltprn
; n. 13. at 39.
26. S.F.C. Milsom. Tlie LegoI F'~.(inieizork o f Oiglish Ferrrlrrlisnr 76 (Cambridge U . Press
1976). The pre-battle procedure of accusal and den~alI S well captured in med~evalliterature. See
e g. R. Howard Bloch. .24ediei~trlfiotclt L~rernrrtrentid 1-mv ch. 1. especially at 29 ( U . Ca. Press
1977).
27. Bloch. slip,-cr n. 26. at 46.
28 See Hyams. srrpr~n. 3. at I 1 1 : "God proclaims a man's g u ~ l tor innocence of a particular
act in the course of a judgment on the whole man and his soul." Id
29. Green. suprn n. 24. at l 10:
[T]o those small-scale societies whrch favour the kind of flexible face-to-face justice In
which honor and personal reputation are intimately bound up ~ i t innocence h and guilt.
the kind of dispasstonate inquiry into fact which we belie\.e to constitute a higher form
ofjur~sprudencew ~ l oftenl seem equally repugnant. Id.
30. Kirsch. ~ l r p r on. 7. at 277 ("Only English books of ritual of the later Middle Ages contain
a formula for the blessing of the shield and the sword for use in the judicial duel; otherwise. no
medieval R~tual contalns prayers for these ordeals. a proof that they were not looked upon
fa\.ourably by the Church.").
31. R.W. Southern. 77ie .l~lokr~rg o f rl7e .i4ititlle Ape.5 96 (Yale U. Press 1959): and D.W.
Rollason. Ti4.o A~iglo-Sn.~on Nrtrir11.s: Cliltrcli Dedicnrio~l nrid /lie J~rdicicrl 01-de~tI14-1 5 ( U .
Le~cester1988).
266 JOURNAL OF L A W & RELIGION [Vol. XIX

Fourth Lateran Council of 1215, in its eighteenth canon, prohibited

clerics from conferring a rite of blessing or consecration at a trial by fire
or water.32 Nevertheless, the modes of proof, for all its religious
elements, were legal institutions3' and references to them can be found
in extant records of early non-ecclesiastical laws.34
Medieval trials3~nvolvedelaborate ceremonies and were notable
for the weight and attention given to procedure.36 Mystely and religion
were used with dramatic effect: the result was solemnity. if not tel-sor.
The rites were usually perfolmed within churches3' and religious
symbols (such as relic^,'^ paintings and sculptures39) were frequently
used. Implements of the ordeals were holy objects and treated "with the
same care and jealousy as the sacred chrism itself."" Intensive
preparation preceded the test. The proband
[is] [slhaved, dressed in a shirt, for three days his diet and his
whole rhythm of life is that of a priest not of a layman. He is
solemnly blessed, stripped of talis~nansand amulets . . .; he is

32. That the ordeal by fire and by water went Into r a p ~ ddecline I S supported by Robert
Bartlett. Ti-in1bj. Fire rrtzd Wrirer-The ,Wedieval Jlidrcirrl Order1170. 100 (Clarendon Press 1986):
and John W. Baldwin. Tile Crisis o f [he Ordeal. L i / e r n t ~ ~ rLaw,
e , aiid Keligior7 Aroliiid 1200. 24 J .
Medieval Br Renaissance Stud. 327. 353 (1994). B11r cf Brown. sliprcr n. 3. at 140 (suggesting that
the decline of the ordeal was gradual rather than sudden). On the Church's effort to eradicate
judicial duels see George Neilson, Trral b y Conlbnr 12-1 5 (Wtll~arnHodge 1890). "Since the
clergy did not participate in [a judtcial duel] at all. or only in a very l i ~ n ~ t ecapacity.d the
prohtbition of the Fourth Lateran Council did not affect it tn the same way as it did the ordeals by
fire and water." \'an Caenegem. srrpra n. 2. at 89. See Baldwin. sliprn n. 32, at 348. In England.
the trial by combat lasted until 1819 (although. by the thtrteenth century. the award of this mode
of proof was Iery rare in c i ~ i lcases. V.H. Galbraith. 777e Detrtl7 ofrr Clicri17pioti. in Kings r117tl
Clrrotiiclers-E.~.~o~:.siii Etiglisl7 Medieval Hisioi?; 283. 283 (Hambledon Press 1982)). and the
wager of 1314 ulas abolished only in 1833. See Maitland. slipro n. 17. at 17.
33. See E. Adamson Hoebel, 77ie Lrrlr. o f Prin7itii.e ,bfrrr7-.4 Srrid!. ii7 Conipnrcrrive Legal
Dj.17crrl7ics258 (Har!. U . Press 1954) (making the general point that rel~gton\\,as not the source of
lau. as such. in pr~niittvesocieties even though it had great influence on law and within legal
~nstitutions).
34. See e.g ch. 6 of the code issued by King Aethelred at \Vantage (980-1016). ch. 23 of the
dooms issued by King Aethelstan at Grately. Hampshtre (924-939). and an anonymous decree.
dating probably from the time of King Aethelstan. as translated. respectively. In S O I I I T CoSf
Oiglrsh Cori~ririirioi7rrlHisro17;vol. 1. 2 1, 15. 16 (Carl Stephenson d Frederick George Marcham
trans. Br eds.. re\. ed.. Harper Br Row 1972).
35. The term "trial" IS used loosely. Some prefer that the term "proof' be used rather than
"trial" as the latter is a relatively modem concept. Thayer. ~ i i p r nn. 15. at 16: and Frederick
Pollock cEr Frederic William Maitland. 771eHisroi?; o f lEi7gli.rlr L ~ I IBefore
I. rl7e 71117r o f Eriu.(~rd1
\ol. 2. 596 (2d ed.. Cambridge U. Press 1923).
36. See e.g. Bloch. sliprir n. 26. at 46-47. describing the "preciseness of procedural detall
surrounding the duel."
37. Whitelock. sriprcr n. 19: at 336.
38. Lea. siipi.cr n. 18. at 24. notes the "Intense beneratlon \kith ~ h l c hrel~csMere regarded."
39. Hyams. sliyr-ci n. 3. at 110.
40. Colin Morris. Jridicilori Der: The Sociol rriid Poliricrrl Sigi7ificnr7te o f 117s Order11 117 rile
E1ei;eiirh (;.17iio)..12 Stud. Church Hist. 95. 100 (1975).
2591 LEGITIMACY OF MEDIEVAL PROOF 269

significant improvement occul-red and exceptional physical injury was

shown. "Such a criterion," as Green rightly ren~arks,'"
introduces a considerable human element into the ~udicizrmDei,
for though God may have been the final judge. the priest who
muttered the prayers more or less quickly, who sprinkled holy
water more or less liberally, who undid the bandaged hand more or
less gently was hardly his passive intermediaiy.
In summary, the picture that emerges is a paradoxical one. Legal
procedure was minutely folmalistic in some respects, but widely
discretionary in others. The availability of discretion allowed covert
human interference in what was presented as the dictate of the cosmic
forces or, later, as the judgment of God.

Why was the approach to adjudication taken with the general

features just described? Some answers lie in the social hnctions of the
modes of proof. To understand why early medieval societies employed
the systems of proof that they did, it is important to understand the
condition and concerns of the time. According to Colman: 59
[The] early European agricultural settlements-painhlly exposed
to the mercy of the elements and the hazard of animal and human
aggression and unable to sustain much more than seasonal supplies
or to provide other than the flimsiest of human shelter-nurtured
communities acutely aware of human frailty and protectively
bound together in intricate systems of personal ties.
Solidarity was an essential facet of tribal life: this could not be
othelwise when physical survival depended on mutual protection and
service. The reliance on oath-supporters reinforced that bond and
reflected a culture of rallying in times of need. It must have seemed
natural for the medievals to rely on the wager of law as a means of
fending off accusations: "As the offender could summon his kindred
around him to resist an armed attack of the injured party, so he took
them with him to court, to defend him with their oaths."60 This was a
peaceable and public way for a person accused of a crime to establish
his innocence, to demonstrate his standing in the community, and to
repair his reputation.6'

58. Green. J I I ~ I - O n. 24. at 108.

59. Coltman. sl~prrrn. 3. at 573.
60. Lea. .rl~prnn. 18. at 34. See id. at 57.
61. Helrnholz. s11prcr n. 21. at 21-24 (making this point in the context of canonical purgation
in Church courts).
2591 LEGITIMACY OF MEDIEVAL PROOF 27 1

right was on their side, and were prepared to step forward and give their
pledges. the dispute should, for the sake of concord, be laid to rest; the
plaintiff, after all, has now the satisfaction that, if there had been perjury,
"his enemies were devoted to divine vengeance."'" But not all conflicts
could be so easily resolved or contained." Where the case was too
strong to be bought off by an oath," or where the necessary number of
compurgators could not be found,73 or where the allegations were
s e r i o ~ s 'or
~ it was impossible to tell where the truth lies," more drastic
measures had to be taken to achieve a final resolution. In the last resort,
"where . . . no decision could otherwise be reached,"76 ordeals were
used." They were expected to end all quarrels as the command of the
Almighty had unquestionable peremptory force. Further, it was likely
that the sight alone of the proband enduling the test would have had a
cathartic effect on the accuser.'' The judicial duel was probably the
most striking way of achieving catharsis. Since honor demanded manly
action against insults, a carefully regulated and detelminative fight was
better than an interminable vendetta.79
An inturned community, the life within which depends heavily on
personal dealings and co-operation, has a natural interest that its
members work out differences through mutual accord. In the harshness
of the ordeals, one can perhaps see an attempt to encourage settlement
by agreement." A study of French monastic lawsuits between 1050-
11 10 suggests that the ordeal was often proposed as a bargaining ploy
and cancelled when the other side gave in or showed a clear refusal to
yield to the threat.'' The same study indicates that sometimes judges

any shameful corporal punishment. . . . who was under age, deaf. mute. a leper exiled from the
community. or notorlous in any other way." Beckerman. szcprrr n. 52. at 205.
70. Pollock & Maitland. sr1p1.o n. 35. at 600.
71. An instance of failure is discussed in Lea. srlprn n. 18. at 35.
72. Whitelock. srcpra n. 19. at 335.
73. Bigelow. slrprrl n. 15. at 322.
74. Baker. srrprrr n. 5. at 5.
75. A.S. Diamond, PI-in111rveLa>i.-Pas/ r11zd Preserir 299-300 (Methuen & Co. 1971):
Bigelow. srlj~rcrn. 15. at 322: and Bartlett. s11pl.rr n. 32. at 33.
76. Thayer. sr~pron. 15. at 36.
77. That ordeals were used only as a last resort. see Laughlin. szrprn n. 17. at 188: Bartlett.
sripra n. 32, at 25-27. 28. 29: Lea. A I I ~ In.- a18. at 583: and Alan Watson. C ~ f a e sONIIIS,
, 0rdetrl.r
ofA1iii7rrrls.1 Edinburgh L. Rev. 420 ( 1997).
(/lid TI-INIS
78. See W~lllamIan Miller. 0r.denl 111 lcelrr~id.60 Scan. Stud. 189. 21 1 (1988) ("a party
might demand the ordeal s ~ m p l yto have a public display of the other party acting humbly")
79. Robertson. slcprcr n. 2. at 38: and Brown. slrpro n. 3. at 138.
80. As a matter of fact. the rate of settlement was high. Milsom. .sr~pi-nn. 13. at 39: and Van
Caenegem. S I I ~ n.~ N2. at 76.
8 1. Stephen D. White. Proposilzg /lie Or-rr'errlr11id Avoidirrp 11: Strrrteg~oird Po~t.erin Wesrerli
Frellcli Lirigoiroli 1050- 11 10. in Culrr~/-eso f P o ~ i , o :Lord.~liip,S S I ~ ~ arid
I . ~ ,1'ror.e~~111 Tli.e!fili
 JOURNAL OF LA W & RELIGION [Vol. XIX

used a proposal to hold an ordeal as a means of getting a litigant into

"defaulting or accepting a compromise."82
There were also considerations of expediency fi-om the
adjudicator's point of view. The burden of deciding disputes in
medieval communities did not come with much protection against
litigants dissatisfied with the verdict. Where is the judge to run to, and
who will protect him, from the anger of the one he has condemned or
from the ire of his kinsmen?" Through use of an ordeal, an intractable
dispute could be passed, along with the responsibility of resolving it, to
an untouchable authority." The divine source of the judgment made it
difficult for a litigant to reject an adverse decision and freed his
supporters from the obligation to rev01t.~'
Arguably, the process had a soothing effect, whatever the outcome
of the trial; the "very course of the ritual of the ordeal helped to contain
conflict and to bring about a resolution. The ceremony applied a
discreet massage to the ruffled feelings of the group."R6 slow-moving
ritual allowed time for temperature to cool. By isolating from the crowd
the man at the center of the conflict, tension is eased:87
This is an action tantamount to removing the keystone of the arch
on which hitherto, all pressures had converged. Once removed, a
decision can be reached quickly, and without loss of face by either
side. For by being brought to the judgment of God, the case
already stepped outside the pressures of human interest, and so its
resolution can be devoid of much of the odiuin of human
responsibility . . . . Quite apart from explicit beliefs on the nature
and source of the final verdict, the ritual itself was reassuring and
peace-creating.
The acquittal rate in trials by ordeal was high. For example, an
early thirteenth century judicial register showed that, of the persons who
took the hot iron over the period 1208-1235 at the Hungarian sanctuary

Cer~rlrr?~Ellrope 89 (Thomas N . Bisson ed.. U. Pa. Press 1995).

82. Id. at 1 1 3.
83. Rollason, s71prrrn. 3 1; at 16.
84. "Judicial ordeals are . . . structurally equivalent to the practice of bringing in an outsider.
or manipulating a specialist. to put forward a solution for which the exlstlng decision-makers feel
unable publicly to take responsibility." Elizabeth Tonkin. r l ~ r r o r ~ o n Judges.
t o ~ ~ ~ Afiicnrt Or-decrls
r . Ethnos 366. 377 (2000).
rrs Dl-rrntos o f P o ~ + . e65
85. See John M . Roberts. Oarlts, Alrtortontic 01-denls, nr7d Po~z.er.67 Am. Anthropologist
186, 209 (1965). Brlr c f White. srrprcr n. 81. at 96 (arguing that a trial by ordeal. lnstead of
"injecting certainty into an otherwise unpredictable disputing process by insuring that the case
would be decided by God's judgment." "might only intensify the uncertaint~esof lit~gation").
86. Brown. sr~prrrn. 3. at 138.
87. lil.
2.591 LEGITIMACY OF MEDIEVAL PROOF 273

of Nagyvarad, one hundred and thirty were shown to be innocent, and

only seventy-eight were proved guilty.s"ne possibility is that the
ordeals were manipulated;89 the person administering the test may have
felt "a responsibility to facilitate the result they considered right: for
instance, by letting the iron cool in cases where suspicion was weak, 01-
by interpreting a burned hand liberally.""'
Alternatively, natural reasons may explain the high acquittal I-ate.
Given the typical diet and lifestyle of the medieval man, he was unlikely
to have much body fat, and some of such little body fat as he had may
have dissipated during the fasting preceding the trial. He therefore stood
a good chance of sinking in the water ordeal, especially if he exhaled
before the i m m e r ~ i o n . ~For
' physiological reasons, women are more
likely to float in water than men. An examination of eyre rolls of the
period 1194-1208 reveals that men were sent to the water ordeal much
more frequently than women.92 Kerr, Forsyth and Plyley take this to
show that the mode of proof was chosen with a view to giving the
accused person a favorable chance of acquittal. They also argue that it is
scientifically explicable why, in a trial by hot iron (the proof preferred
for women), the hands should appear unharmed. The bum might be of
such a high degree as to reveal no sign of injury, the hands, "in effect,
being cooked white";93 or the infection might not have developed by the
third day when the hands are inspected, it being apparently uncommon
for bum infections to surface before the fifth day following the injury.9"
The writers conclude that the system of ordeals was "pu~poselydesigned
so that as many people as possible could" be acquitted;95this mode of
proof was an instrument of mercy used by the clergy or other persons

88. Van Caenegem. sirprci n. 2. at 75-76 (1990). See Holdsworth. s1rp1.n n. 16. at 31 0-3 I 1
("Between 1201 and 1219 Maitland has found only one case in which [the fire ordeal] did not
acquit the accused"): and Margaret H. Kerr. Richard D. Forsyth 8r Michael J . Plyley. Cold H'crrel-
rrud Ifor 11.017. TrI'r116j. Or.denl irr Oiglor~d.2 2 J . lnterdisclplinary Hist. 573. 589 (1992) (in each of
the three cases the authors found in the English courl rolls the proband was successful).
89. According to Pollock Rr Maitland. si~p~-cr n. 35. at 599: "Such evidence as \ \ e h a l e seems
to sho\v that the ordeal of hot iron was so arranged as to give the accused a considerable chance of
escape." See George Riley Scott. A Hisro~?;of Toriirre 228 (Bracken Books 1994) (1940) ("The
fact that so many people proved their innocence by appealing to this form of ordeal and escaping
without bums. suggests either knowledge of some method of protecting the skin . . . or collusion
between the accused and the officiating priest.").
90. Baker, sltprci n. 5. at 6. See Pilarczyk. sirpro n. 5. at 109 ("The historical e ~ i d e n c eof
\,erdicts being returned against impossible odds and the frequency of judicial tampering shon that
the community could ensure that the des~redresult occurred.").
91. Kerr. Forsyth 8: Plyley. stcprtr n. 88. at 586-587.
92. Id at 580-581.
93. Id. at 594.
94. Id. at 588.
95. Id. at 594.
274 JOURNAL OF LA W & RELIGION [Vol. X I X

supervising the trial to shelter individuals from harsh or unjust legal

punishments.
It might be that to the populace, the trial by ordeal had a valuable
role in the politico-legal sphere, as a safeguard against the objectionable
enforcement of secular We get a sense of this belief in the
medieval historian Eadmer whose life straddled the eleventh and twelfth
centuly. He told the story of an unjust ruler, King William Rufus,
whose "self-exaltation" grew so high as to embolden him to challenge
the judgment and authority of God. When the King's desire to punish
fifty men for killing his deer was thwarted by their success in passing
the test of hot iron, he supposedly flew into a rage, incensed at what he
perceived to be interference with his rule." The same sense of
frustration might have led King Henry I1 to later proclain~ that the
accused person must, in some cases, adjure the kingdom even if he
passed the ordeal.9S

The theories just examined focused on the socio-political uses of

the ordeal, cornpurgation and trial by battle. They try to explain these
practices with reference to natural and cultural factors, and to justify
them on the basis of larger considerations extrinsic to their professed
aim. Valuable as they are, these theories do not take seriously enough
the avowed purpose of the practices in the minds of the believing
participants. What, in their minds, was the purpose? Was it, as it is
commonly assumed, merely the ascertainment of truth in the disputed
facts? On this assumption (which is questioned later), many have tried
to rationalize and defend the epistemic function of the modes of proof by
looking at them through modem-day lenses.

96. Id. at 594-595. The ordeal could equally be used as an instrument of oppression. See e.g.
the ~ncidentrecorded in Ephraim ben Jacob ( 1 132 to around 1200). A Book o f t/isroric[rl Records.
reproduced in Jacob R Marcus. The Jell. iri rile .lnetiieiul h r l c i , CI So1rrc.e Book 3/5-1791. at 127-
128 (Union Am. Hebrew Congregations 1938). In 11 71. the ordeal was used to test the truth of
the witness's accusation against an innocent Jew but the "Christians arranged it in accordance
with their wish SO that the [accuser] floated. and they took him out and thus they declared the
jv~ckedinnocent and the righteous guilty." Id. at 128.
97. The King reportedly said "What is thrs? God a just judge? Perish the Inan who after this
belleves so. For the future. by this and that I swear it. answer shall be made to my judgment. not
to God's. which inclines to one side or the other in answer to each man's prayer." Eodrtler's
his tor:^. o f Recerrr Eiler7ts rr7 Er~glrrr~d106 (Geoffrey Bosanquet trans., The Cresset Press 1964).
98. King Henry 11 made this proclamation in article 14 of the Assize of Clarendon ( 1 166) and
art~cle1 of the Assize of Northampton (1 176). See George W. Greenaway. Ertglislz Histor-icnl
l'ocz~n7er7ts1042-1189 \ol. 2. 409-410. 41 1 respectively (David C. Douglas gen. ed., Oxford U.
Press 1953).
2591 LEGITIMACY OF MEDIEVAL PROOF 275

It has been pointed out, for instance. that the closeness of day-to-
day living is likely to bling about intimate knowledge of the affairs of
others. In small-scale societies of the past, people knew much of what
went on around them, and both the ability and inability to gather
neighbors to support one's case spoke much about its merits. Further, as
previously noted, many factors combined to provide strong deterrence
against lying on oath. Trial by compurgation was therefore not an
entirely irrational approach to ascertaining the truth.99 The same has
been said of the judicial combat: its epistemic function may be grounded
in the fact that victory
depended on the unity and interaction of the physical and the
psychological powers of the individual, so that an uneasy
conscience rendered the arm of the one combatant uncertain,
whilst the conviction of innocence afforded the other that
confidence and security necessary in order to overcome an
opponent who might appear superior in strength and prowess.'00
The fact-finding role of ordeals has also been defended on
scientific grounds. There may be a psychological basis for the test of
hot iron inasmuch as the blistering of skin may be linked to anxiety of
guilt: the "walls of the peripheral blood vessels are under the control of
the autonomic nervous system which may be influenced by
suggestion."'01 The rationality o f the ordeal by morsel worked, perhaps,
in much the same way as does a modem lie detector: dryness of throat
induced by the stress of facing a seemingly infallible test might cause
the guilty to have difficulties swallowing the consecrated bread.Io2
Some historians suggest that the preparation and ceremonies for the
ordeal were deliberately structured so as to "inspire religious reverence,
or superstitious terror": they were the means of deterring perjury.'03
Again and again, at "[elach stage of the ritual . . . the theme of no
escape for the wicked thunders o~t."'~"he build-up of psychological
pressure leading up to the ordeal was so immense that, at the final
moment, "[mlany no doubt surrendered."" Others were now SO jittery

99. Of this view are Colman. s~rpru n. 3. at 576-577: Lyon. sirpro n. 63. at 101; Van
Caenegem. sliprcl n. 66. at 66: DamaSka. slrprcr n. 13, at 30: and Paul Fouracre. Cot~cl1rsio17, in The
Setrlenietir o f Disp~ires 111 fir-lj. .blediel~rrlElrrope 222 (Wendy D a n e s i't Paul Fouracre eds..
Cambridge U. Press 1986).
100. Lewis Jillings, Order11 b). Cor7ibot crrid rile Re/eciior~ o f Cl7i1~rili:,.iri Diir Cr,drle. 51
Speculum 262.264 ( 1976).
101. Roberts. sr~prcrn. 85. at 206.
102. Id. at 205: Colman. .s~rpr-rrn. 3. at 588: and Pilarczyk. sirprn n. 5. at 1 10.
103. Robertson. srrpr-(I n. 2, at 56.
104. Hyams. s ~ ~ p n. r a3. at 110.
105. I(/, at 1 1 1 . CI: White. slrprtr n. 81. at 107-1 10 (suggesting that ordeal \\,as often proposed
276 JOURNAL OF LA W & RELIGION [Vol. X I X

that they threw away their chance of success."'0h Writers have also
highlighted the "malleability" of the procedure. The room for discretion
allowed proof to be fixed by its administrator to deliver what he believed
to be the correct outcome. For instance, rational deductions from the
demeanor of the proband ("the agony in those who felt guilty, or the
serenity in those who felt inno~ent")''~could have influenced the choice
or severity of the test. and the interpretation of the result.'0P

If the arguments above are right, it would seem that, all in all, the
right conclusion was reached in a good proportion of the cases. The
arguments may well be sound. However, the underlying assumption that
the modes of proof were meant to be instruments of ascertaining factual
truth is an over-simplification. It is most likely that, to the genuine
believers, to those who held faith in the practices, there was more to the
modes of proof than fact-finding.
As Miller has argued, the "fact that people rig ordeals does not
mean they do not believe in them,"lo9 even if it may indicate that they
thought God could be tricked."' In the medieval mentality, causation of
an ordeal's outcome was not straightfolwardly divine; it is better
understood as linked to a blend of the "natural and [the] supernatural
. . . like . . . the medieval litigants who trusted in God and employed
skilled champions to fight their judicial duels.""' It would be to deny
"the period the relevancy of its to suggest that elaborate legal
rituals were never more than political smokescreens or devious

merely as a bargaining ploy and that the "real" reason why 11 was abandoned was often that the
strategy fa~led).
106. Hyams. siiprn n. 3. at l I. See Van Caenegem. sl//~rrrn. 66, at 66-67: and Keith Thomas.
RelIgrori ntid rile Declrrie of Mirgrc. Si~~tlre.\117 P o p ~ ~ l oBeliefi
r iri Sirieeriil~ iiriii Sevetiret.r~ili
C'er~riii?.fiiplrrr~rl260 (Penguin Books 1978) ("As often as not. the guilty part will break down
before undergoing the test. His ner\.e \v111 crack and he confesses . . . . [Tlhe system worked to
some extent by sheer ~ntirnidation.").
107. DainaSka. sl~pr-iin . 13. at 3 1.
108. See Thoinas. siiprcr n. 106. at 260.

[Wlhereas some ordeals were very difficult to get through-notably the hot iron-others.

like the cold water test. were almost impossible to fail. I t does not seem improbable that

the choice of method was often determined according to ~ h e t h e or r not the accused was

already beliexed to be guilty.

Many historians agree that there was considerable tampering w ~ t hthe procedure and ingenuity in
the Interpretation of the outcome. See e.g. Brown. S I I ~ n. ~ N3. at 139-130: Colman. ~ i i p r on. 3. at
589-590: Pilarczyk. .rrcprci n. 5. at 96-102: and Baldnin. s~iprrrn. 53. at 629.
109. Miller. sripi-(1 n. 78. at 203.
1 10. Id at 204.

l l I. Radd~lig.s ~ipron. 56. at 968.

1 12. Olson. .\~ipi-nn. 7. at 1 14.

2591 LEGITIJ4ACY OF MEDIEVAL PROOF 277

psychological ploys created to catch the guilty in a moment of weakness.

Just as there were instances of corruption, so too there must have been
instances when proof was performed and conducted with ~ i n c e r i t y . " ~
How do we account for the belief of those for whom the ceremonies
were significant in their own right and were not covel-t insti-uments of
human wiles?
The significance of the rituals is reflected in the emphasis on their
strict ~ o m ~ l i a n c e .To
" ~ an external observer, this fastidiousness may be
nothing more than a rhetorical device to lend the outcome a false sense
of ce~-tainty."~But: from the internal point of view. the insistence on
compliance may simply reflect the mood in an era of enchantment;
people did believe that proper performance of the correct rite was
necessary, first, to invoke the deities to decide human fate or elicit
justice from God, and, secondly, to shut the door to evil forces capable
of skewing the result.'lh As Bloch puts it:'"
Ritualization . . . is aimed, ultin~ately,at establishing a direct
rapport between the divine judge and the human instruments of his
judgment . . . . Cases are submitted to God for his decision . . .:
the ceremonial trappings insure his participation.
In order to understand fully the popularity, while it lasted, of the
medieval modes of proof, we need to recapture the worldview of the
genuine believers, to see these institutions in the light of what they
thought of nature, of themselves and others, of God. But there are
limitations on the extent to which this can be done. First, there was no
uniformity of beliefs across sectors of society. Extant records preserved
predominantly the views of "a minuscule clerical elite"; and it is likely

113. .As is obser\ed by Colman. ~rcpi.crn. 3. at 586: "Fa~thin divine just~ce\\as a l i ~ e l yreal~ty
in medieval communities as public attitudes and prl\ate actions constantly attest."
114. According to Plucknett "\\'here modem publlc opinion mould insist upon a tnal \\hicIi
\*.as substantially fair. the med~aexalpubl~clooked rather at the procedure and inquired ~ h e t h e r
all the steps in it were properly carrled out." Theodore F.T. Plucknett. .A Coi7cise Hi.c~oi:l-o f the
Conii17oi7 Lrrlt. 380 (5th ed.. Little. B r o 11.
~ & CO. 1956).
11 5. Cf Yelle. sl~pron. 50.
1 16. See Morris. slcpi.n n. 40. at 102: and Bloomfield. sirpi-er n. 63. at 55 1 ("the religious
ceremonies In connection with most ordeal procedures were methods used to defeat the dev~l":
and "a kind of exorcistic and apopotraic element is present in all ordeal ceremonies"). According
to an anthropological study:
The belief that the rltual must be carried out prec~selyright in order to achie\e results 1s
. . . a cardinal belief of the Indigenes' techniques for controlling nature . . . . In order to
have mag~calpower. the symbolic act must be camed out precisely as ~t had been when
effectixe prebiously.
R.\\'. Lidz. T. L ~ d zRr B.G. Burton-Bradley. Ciiirrri-e. Pei-soiinlr~..ciiiti Socrrrl S~riicirrre:C'orgo-
C11/1i,rnr-.4 Psj.chologici11 Stirdj, of .l4elnrlesinri .Viiler7trr~ecrr7ese17.157 3. Nervous Rr Mental
Diseases 370.383 (1973). quoted by Radding. sicprci n. 56. at 955.
117. Bloch. si~pi-crn. 26. at 74-25.
278 JO C'RIVAL OF LA W & RELIGION [Vol. XlX

that, for the "great mass of medieval folk." "forms of primitive magic
and not faith largely governed religious-cultural attitudes and
p r a c t i c e s . " H ~ owe must not expect illiterate peasants and medieval
intellectuals to have necessarily the same outlook on the proof
practices."9 Indeed, in the early to central Middle Ages. the "learned"
view that God reveals "the guilt or innocence of an accused 'through'
the elements of fire and water7' seemed to have co-existed with the
animist belief that "it was really the elements of fire and water which
were acting on their own."'20 To make matters even more complicated.
views were divided within a class: amongst the literate. for example,
there was never complete agreement on the legitimacy of the ordeal.'"
A second difficulty, running with the first. is that perceptions of the
modes of proof did not, of course. hold constant throughout the
medieval era. It is likely that, for the earliest Gelmanic tribes, the use of
the ordeals reflected a pre-Christian belief in arbitrary Fate and magic."'
However, as Christianity spread in Western Europe, the newly converted
leaders had to preserve existing social institutions for the sake of
stability and continuity; this led to ordeals being adapted and "conducted
under Christian a ~ s ~ i c e s . With ~ ' ' ~ the
~ Christianization of the trial by
ordeal, which began from the sixth century,'" the outcome came to be
interpreted through the concepts of divine purpose and m i r a ~ 1 e . I ~ ~
"Recourse to cosmic, invisible forces became a recourse to the personal
and just God of the ~ h i - i s t i a n s . " ~ ~ ~
Of this complicated milieu of wol-ldviews, this Part focuses only on
one stream of belief and discourse, or, if you will, thread of ideology. It
will consider how, before the eleventh century, when arguments against

1 1 8. John \an Engen. Tlie C11l-isrin~i Middle Age3 .,Is Air l~isiol-iopl-(rplrr~crl
Pi.obleni. 91 Am.
Hist. Rev. 519. 519 (1986).
1 19. As pointed out by Richard Kieckhefer. Tlie Specific Rrrrioittrli!,: o/:lilediei'nl Mngic. 99
Am. His!. Rev. 81 3. 832-833 ( 1 994).
120. Alexander Murray, n'rrrtri.e aiid Mail iii Micklle Ages. in 77ie Coiicej~rofJVo/lrre-771e
tfei-Derr Speiicer Lecr~rres 25. 32 (John Torrance ed.. Clarendon Press 1992). See Alexander
Murray. .l/lissiorlcrl-iesrriid ,Mrrgic iir Dul-li-Age Eitrope. 136 Past & Present 186. 197 (Aug. 1992).
121. Bartlett. sirpi-o n. 32. at 72: "early indications of scepticism are an important warning
against constructing too uniform and homogeneous a picture of the mental world of the early
Middle Ages. There was always doubt and dispute."
122. Berman. ~irpl-rrn. 13, at 57. 59.
123. Valerie 1.J. Flint. Tlie Rise o f Magic iti the Eni-I!- .Vedie~.rrlElti-ope 398 (Princeton U .
Press 1991 ). The process of Christianization is discussed. id. at 283-286. 397-398.
124. Bartlett. slrpi-cr n. 32. at 156 ("from the sixth century until the twelfth the ordeal was
Christian. for Christianity countenanced and blessed the practice. despite occasional dissentient
voices").
125. On the interpretation of the ordeal as a miracle. see Benedicta Ward. .lilir.oc/es orit/ /lie
.24edieval ,Miild-77ieoi;~.. Record rrrid El:eiir 1000-1215. at 18- 19 ( U . Pa. Press 1987).
126. Van Caenege~n.sltpr-(1n. 2. at 74.
 LEGITIMACY OF MEDIE VAL PROOF

the trial by ordeal began to gather momentum: medieval theology could

have reconciled Christianity with and even legitimized this practice
through the notion of divine justice. T o begin with. we must discuss
generally how "divine justice" is markedly different from the modem,
"fact-based," conception of justice.

A. Justice and Proof

The outcome of a trial by ordeal, compurgation or judicial battle
was not a proof outcome, if "by proof' we mean the proof of facts.
When these methods of adjudication are described as "modes ofpl-oof,"
the telm "proof' is used in the sense of "vindication." We understand
the word in this way when, for example, a victim of sexual harassment
asserts that the conviction of her toimentor "proves" that she was telling
the truth all along, or when a person claims that an acquittal "proves" his
innocence. The result of the medieval modes of proof is, rather, the
adjztdicatiol7 outcome: it marks the termination of the dispute and is not
the finding of fact to which rules of law have to be applied to reach the
verdict. The justice sought through use of the medieval modes of proof
was not grounded in substantive norms operating on the facts of the
case; it was based, rather, on submission to and faith in a spiritual
power.
A central aspect of justice, as classically conceived, is to give to
each his due. This begs the question of what is due to a person. A
modern way of responding to this question is to illustrate the practical
application of the principle: it may be said, for example, that justice
requires that only those who are guilty should be convicted, and that
only those who are in breach of a civil obligation should be held liable.
But when ought the court to find that a person is guilty or in breach of a
civil obligation? It must look to the substantive law (ides, principles
and standards). The substantive law sets out the types of fact that are
material in a particular case.12' Material facts are facts that instantiate
the legal elements constituting the crime or cause of action or defense in
question. Those facts are the subject matters of proof. Today, legal
adjudication tends to be conceived, rightly or wrongly, as having two
notionally distinct aspects: the proof outcome and the adjudication
outcome. Is it true, as alleged, that the defendant acted thus and so?
This question is legally relevant if the action has legal significance or
consequence: thus. the question is relevant where a finding requires or

127. See James Fitzjames Stephen. Tile hidirrii Ev~deiiceAcr. M'i//i rr~i lrrrrod~rcrioiloil rAe
El3itieiite 9 (Thacker. Spink 6:Co. 1872).
Pi-ii1cip1e.r.ofJ11d1tro1
280 JOURNAL OF LA W B RELIGIOAT [Vol. X I X

supports the verdict that the defendant is (or is not) guilty or liable. The
answer to the first question is the proof outcome while the verdict at the
end of the trial is the adjudication outcome. It remains that these are
theoretically two different aspects of adjudication even though the
distinction can be vely difficult to drawi2%nd even where, as is
typically the case with a jury verdict, the proof outcome is not disclosed.
The jury verdict usually proclaims generally that the person at trial is
guilty or liable, without revealing any specific findings of fact.
Nevertheless, the distinction between fact and law should have featured
in the analytical constiuct of the deliberation that led to the verdict.
Justice, in a formal legal sense, is about treating people according to the
law, and since law operates on facts, justice is contingent on factual
truth. Whether the law itself is just may, conceptually, be treated as a
different question. Truth and justice are, in this way, separable. W11ile
the soundness of this sketch is contestable, it describes a popular
understanding of adjudicative reasoning.
In contrast, the result of a nledieval mode of proof was perceived as
both the proof outcome and the adjudication outcome; these two
concepts were, in this context, inextricable. The outcome of
adjudication could not be just in the formal, positivist, sense that it was
reached by applying correct interpretation of legal rules to true findings
of fact: at a time when law and fact were not strictly compartmentalized,
this method of analysis was out of place.'29
The medieval trial sought divine justice. This is conceptually
different from justice in the rule-governed and fact-based sense. Today,
facts provide the basis for the court's decision, and human reasoning is
the means of reaching it. God's justice, on the other hand, is frequently
beyond man's understanding.'") 1f God accepts the proband by making
him sink in cold water: is it because he is innocent? Or is the repentant
being shown mercy?'" If he floats, does this necessarily mean he did

178. On this difficulty. see Adr~anA . S. Zuckennan. L m t , F ~ c rO r Jns/ite7. 66 Boston U. L.

Re\. 487. 487-494 (1986). Although the orthodox ne\v is that legal adjudication in\?olves the
application of legal rules (broadly conceived to include legal principles and standards) to facts. the
deter~ninacyof legal rules and facts. and the degree to nhich legal rules "dictate" the adjudicatory
outco~neare quest~oned by modern jurisprudent~al \vriters. particularly the American Lesal
Realists and Critical Legal Scholars.
129 See A.D.E. Le\t:s. Tlie Bockproiitid ro Beiirlini,i 011El~ideiice.2 Ut~litas195. 197 ( 1990).
130. "The ase." Olson obser\es. "depended upon its god to see beyond facts and exen legal
rights. and to judge according to some other. perhaps incoinprehensible. measure." Olson. ~irprn
n. 7. at 127.
13 1 . Van Caenegem. . S I I I J ~ - On. 66. at 69 ("in the t14,elfth century some autllors interpreted the
successful ordeal of a knoun cri~ninalas a measure of grace: God uanted to gi\#ethe crim~nal
another chance or to re\\.ard those who had confessed their sins to a priest and were then 'salxati
per confession~s\irtutem"').
2591 LEGITIMACY OF h1EDIEVAL PROOF 281

that of which he is accused? Perhaps not, but perhaps he has sinned in

other ways.'32 It may be divine justice for the righteous man to win a
duel or it may be greater glory for him to lose-do not "Chiistian
soldiers conquer by dying, not by killing"?'33 Once the case was placed
in the hands of God, the facts no longer mattered; there is, after all,
scriptural authority on the inscrutability of the Lord's judgment:""
0 the depth of the riches both of the wisdom and knowledge of
God! how unsearchable are his judgments, and his ways past
finding out! For who hath known the mind of the Lord? or who
hath been his counsellor?
For the faithful who believes in the divine nature of a trial
outcome, even a verdict that appears inconsistent with the factual tluth
must nevertheless be accepted with humility and on faith in the perfect
wisdom of God. Some see this as a "head-in-the-sand" response. Is this
no more than a "rationalization" of a "wrong" outcome, a desperate, last
ditch, attempt to shore up what little remained of one's belief in the
trial? Bartlett, for example, sees in this line of argument a "tortuous"
attempt "to reconcile a deep belief in God's immanent justice with a
most intractable sequence of event^."'^' Similarly, for van Caenegem, a
person's reliance on such a strained argument is a sign that, in his eyes,
the ordeal has "lost all probative value."'36 Underlying such comments
is the assumption that the ordeal was intended purely as a method of
finding the truth of the disputed facts. Bartlett argues, precisely on this
premise, that if the ordeal "could no longer be seen as a valid test of the
point at issue, then its judicial utility was at an end"; this judicial
function "was diluted by the belief that God might be using the ordeal to
show mercy, justify the good at heart, or punish the sinner regardless of
whether he happened to be guilty in the case at issue."'37
It misses a critical point to evaluate the justice of medieval proof,
as Bartlett does, by its effectiveness in uncovering factual t ~ u t h . " ~That

132. See Raddrny. stipi-cr n. 56. at 946 ("a proband could be struck down for srns not related to
the case at issue"). A srmilar interpretation I S made of ordeals generally by Olson. sliprn n. 7. at
141-142. and of judicral duel in particular by Bloomfield. stiprn n. 63. at 553. In a mid-eleventh
century case discussed by Bartlett. stcp~-crn. 32. at 78. a man failed an ordeal even though innocent
of the charge of horse-stealing because "he had shaved like a cleric rather than lettrng h ~ beard
s
grow as a layman should."
133. Raddiny. slipin n. 56. at 946.
134. Rom 1133-34 (All Biblical citations are taken from the King Jarnes ~erslon.). See Job
3 6 2 6 ("God is great. and we kno\t him not.").
135. Bartlett. sripi-a n. 32. at 78.
136. Van Caenegem, stcprrr n. 2. at 84 n. 35.
137. Bartlett. slipi-a n. 32. at 79.
138. This criticism is also made by Palmer. siipi~crn. 6. at 1550- 1552.
282 JOC7RNAL OF LA W & RELIGION [Vol. XIX

was not (at least, not always or solely'") the aim. The purpose of an
ordeal, within its Christian framework, was to seek divine justice.'") lt
may be, especially during the early Middle Ages, when "motif of the
wrath of God appeared everywhere,"'" that His judgment was accepted
in blind obedience and out of pure terror. But there is a softer
interpretation, one that grounds immanent justice in divine love and
mercy, an interpretation that apparently had its highest currency in the
eleventh and twelfth centul-ies.'" Arguably, justice was sought in the
spiritual sense of justification through faith and by the sanctifying grace
of God. As Whelan notes:
a term frequently encountered in the Bible, cognate with justice
. . ., is "justify." God justifies (the word also means "acquits") the
guiltless. thereby rendering or declaring them just (innocent or
acquitted); a just person is one who has been justified in this way.
Justification, then, is the procedure by which one attains the status
of j u ~ t i c e . ' ~ '
"Justice" in the theological sense is different in a number of
important ways fi-om "justice" as it is popularly associated with the law.
Modems often see an opposition between justice and mercy: mercy
serves in some way to qualify or restrain the full impact of what justice
demand~.'~"erc~, on the other hand, is an integral part of divine
justice. The belief is that, as sinners, everyone "fall short of the glory of
God" and are only "justified freely by his grace."'3' This grace is
conferred by way o f gift; it is not earned, or due as a matter of
obligation.'" On whom grace is to be conferred is the Lord's sovereign

139. C[ White. siipr~in. 8 1. at 96-97. suggesting an ordeal could be used for this range of
purposes:
to prove a statement of "fact." on mhich the judges could then base their judgment: to
prove concurrently a factual statement and a normative conclusion based on that
statement: to test a disputed claiin about the legal ~mplicationsof an uncontested fact:
and finally. to establish in more general terms which litigant had "right" on his side.
140. CL Olson. sirp~.crn. 7, at 174 (!he ordeal is interpreted "as a penitential act of purgation").
141. Charles M Radding. E~~olrr~iori of Medievoi .We~ituli/ir~:A C'op~iili~~e-Sri7icti~rrii
Appi-ouch. 83 Am. Hist. Rev. 577. 593 (1978).
142 See Bartlett. slrprrr n. 32. at 78:
[It] seems to ha\e been increas~nglyprevalent in the ele\,enth and twelfth centuries . . .
to claim that the guilty had been cleared because they had confessed or because God
wished to give them one more chance. and that the innocent. though not guilty of the
specific charge brought agalnst them. \+erecondemned on some other count. Id
143. Frederick G Whelan. Jnsirce-Clnssiccri rr~id Clirisrirr~~.10 Political Theory 435. 449
( 1 982).
144. This opposition is noted and challenged by Carla Johnson. Secrsoriirip Jiis1ic.e. 99 Ethics
553 ( 1989).
145. R o ~ n3:23-24.

146 Rom 4:4-5 ("No\\ to him that \rorhetli is the renard not reckoned of grace. but of debt.

2.591 LEGITIMACY OF MEDIEVAL PROOF 283

choice; thus God's words to Moses: "I . . . will be gracious to whom I

will be gracious, and will shew mercy on whom I will shew mercy."'4q
God's choice is beyond question for "Who shall lay any thing to the
charge of God's elect? It is God that j~stifieth.""~
In Chapters 9 and 10 of ~ r o s l o ~ i owe ~ ~find
, ' ~ Anselm
~ (1033-
1109) espousing and defending the view that God's judgment was
necessaiily or intrinsically just. It is just that God should punish the
wicked because this is what they deserve. But it is also just that God
should pardon them, "not because of their deserts, but because it assorts
well with [His] goodness."'50 On this view, if the outcome of an ordeal
does indeed demonstrate God's judgment, it is necessarily just. While,
as previously noted, "truth" is separable from 'tjustice" as conceived in
modern, positivist, terms, "ti-uth" is not distinct from 'tjustice"
understood in its divine, Christian, sense. Aquinas (1 225-1 274), for
example, wrote that God's justice is tmth "because it determines the
order of things in conformity with his wisdom, which is its la^."'^' For
the medievals, "justice," "truth" and "mercy" are bound up together in
one inseparable whole.
There are other differences between the modem positivist and the
divine conception of justice. When God passes judgment in the
proband's favor, the "sentence confers a new status rather than
validating a prior one": "[bly v i ~ h l eof this sentence those so justified
are just as a matter of legal status, even though they cannot claim to
have been guiltless previously."'52 While human justice in a modem
court is backward looking, a pronouncement based on belief in events
alleged to have occurred, God's justice in a medieval trial was fonvard-
looking, declaring afresh the status of the person judged. Again, to
quote Whelan:
Those who are justified by grace are . . .just . . .: . . . they are in
a state of being in the right (as before a judge), not of doing or
having done what is right. The justice of Christians consists not in
proper conduct . . . but in their status before God as the

But to him that tvorketh not. but belieceth on him that justifieth the ungodly. his faith is counted
for righteousness.").
147. Exod 33:19: and Rom 9:14-18.
148. Rom 8:33.
149. Saint Anselm. Proslopior7. in The Pru~.er.s~ 1 7 .\~ledi1orio17s
d o f SI. A11seln7238. 249-252
(Benedicta Ward trans.. Pengum Books 1973).
150. irl. at 252.
151. Saint Thomas Aquinas. S~/rlir~rr Tlieoloprctr. First Part. Question 21. Art. 2. in :Vuur~/re(117ti
Grace-Se/ec!ior~s,f,-o~~irile S I I I I I T/7eolo_gictr
II~~ o f T / ~ o r ? Aql(iri(d.s
l~s \'01. 1 I. 89 (A.M. Fairweather
trans. & ed.. Westminster Press 1954).
152. Whelan. s ~ ~ p n.
r a143. at 350.
 JOURNAL OF LAW & RELIGION [Vol. XIX

authoritative source of all ju~tification.'~"

In so far as the ordeal had spiritual legitimacy, and so long as it
retained that legitimacy, the person justified by divine grace will have to
be re-embraced by his or her community, to begin life anew; all that
happened before is rendered inconsequential-if he is innocent. well and
good; and if not, his wrong has been forgiven by God, and that must
settle the discord. In the Middle Ages, justice was joined with mercy,
and "[r]econciliation and forgiveness, not retiibution, were . . . the ideal
means to maintain peace."'54 Christian justice, with its emphasis on
concord. finds easy resonance with a people all too aware of the
importance of haimonious co-existence.
This interpretation of the ordeal is reflected in medieval records
and writings from which three examples will be discussed. The first is
fi-om Dialoglrs Mil-aclllorzrm, wiitten by Caesarius of Heisterbach, a
monk of the Cistercian order, between 1220 and 1235.'" One of the
incidents recorded by him was of a trial by ordeal that he explained
explicitly by reference to divine mercy and the confeiring of grace on
the repentant.'56 A fisherman was notorious for living in sin with a
woman. He expected that, sooner or later, a public accusation would be
made against him. In that event, he would have to either confess and
marry the woman. or take the ordeal of iron, which he feared. Not
knowing what to do, he confessed to a priest who advised him that if he
resolved ncver to sin with her again, he should perform the ordeal as the
virtue of confession might free him. This he did and "to the amazement
of all who well knew his in~ontinence,"'~'he passed the test unhaimed.
Days later, while he was out on a boat with another, he was queried
about his success at the trial. He said, as he smote the river-water with
his hand. "The fire hurt me no more than this water." At that very point,
he was bu~nedbadly. Caesarius took this as a lesson in "the marvellous
justice of God." The man was protected at the ordeal as the Lord
"guarded the penitent in His mercy." But the man deserved to be
punished later since he had "boasted u11~01-thilyof the grace that had
been conferred on him."""

153. lri at 449.

154. Pat McCune. Jllstice. Mei.cj. N I I ~L n ~ e.bletliei~rrIGo~:errlcrr~ce. 89 Mich. L. Rev. 166 1 .
I672 (1991).
155. G.G. Coulton. L ~ f eit? tile 12.1idtlle..lges \.ol. 1. 58 (Cambridge U . Press 1928).
156. Caesanus' record of this event is reproduced in Coulton. id. at 73-74.
157. Id. at 73.
158. Id.
2591 LEGITIMACY OF MEDIEVAL PROOF 285

A closely similar explanation appears in the writings of Galbert of

Bruges, who was a notaiy by profession and probably a "clerk in m ~ n o r
According to his contemporaneous records of events.
Charles, the Count of Flanders, was brutally murdered in I 127. One of
many who had a hand in the killing was Lambert of Aardenburg. A year
after the murder, Lambert sul-prisingly cleared himself of the crime by a
fire ordeal.'60 However, within barely a month thereafter, he died in
battle even though his almy out-numbered his opponents. Galbert
explained Lambert's success in the ordeal on the principle that "in the
judgment of water or iron the guilty one, if he is penitent, does not
succumb."'"' So long as Lambert "acted humbly towards God, God
forgave him for having taken part in the murder o f ' ~ h a r l e s . ' ~ 'He
noted, "when a servant acts humbly towards his lord because of an
offense of which he is accused, the lord forgives him if he is acting in
accordance with the law of penitence."'63 "But, after being cleared by
the ordeal," Lambert and his men had acted arrogantly and showed no
mercy in using "a force of three thousand men to besiege a handf~l."'~'
He deserved to be killed as he had "disregarded the mercy of ~ o d . " ' ~ '
It has been suggested that Galbel-t's confidence in the efficacy of
the ordeal as an appeal to divine judgment was undermined by his
knowledge of this case.Ih6 Was his explanation of the events, as some
claim, a sign of a "troubled mind" trying to maintain his faith in God by
following "a tortuous path to an unconvincing answer[?]"'67 Galbert. it
may be noted, was writing at a time (12 17-1218) when the Christian
Church had disassociated itself from the ordeal. Even if Galbert lacked
conviction in his "rationalization" of the events, his account shows how
the ordeal colrld be explained in Christian terms provided the
assumption about man's power to invoke the judgment of God holds.
As we will see, it was the erosion of that assumption, not a change in
outlook on divine justice, mercy or truth, much less a weakening of
belief in God's power to work miracles that undermined the spiritual
legitimacy of the ordeal^.'^"

159. Galbert of Bruges. The MIII-dri.of Chni-lcs /lie Good, C o l ~ i ~ofF/ai7der.\

r 66 (James Bruce

Ross trans.. Harpers Torchbooks rev. ed. 1967) (1 891).

160. lil. at 282.

161 Id. at 289.

162. Id at 288.

163 Id. at 289.

163 Id at 288.

165 Irl. at 289.

166 l ( i . a t 7 1 .

167. Id. at 72.

168 See Baldnin. s~ipi-cin . 32. at 343-341. 351-353: Bartlett. cicprcr n. 32. at 163-165: and

286 JOURNAL OF LA W & RELIGION [Vol. XlX

The third example is from medieval literature. It is not overly

speculative to rely on a literaly source; as Baldwin has found, the
portrayal of ordeals in medieval literature is generally bolne out by
historical document^.'^^ In any event, it is in the contemporary folk tales
about the ordeal that one is likely to find what the popular view was of
that practice. One episode of the Tristan legend is particularly
insightful. The literaly lineage can be traced to around 1 1 5 0 . ' ~But
~ the
classic version is generally considered to be that of Gottfried von
Strassburg, written sometime in 1200-1 2 10.17' In one part, Queen Isolde
had an affair with Tristan, nephew of the King. When suspicion of their
adultely arose, she found herself having to take the test of fire to regain
her honor. The events preceding the ordeal showed Isolde's perception
of her relation with God. We are told that, finding herself in a
predicament, she tulned to divine guidance and protection:'72
Isolde . . . remained alone with her fears and her sorrows-fears
and sorrows that gave her little peace. She feared for her honour
and she was harassed by the secret anxiety that she would have to
whitewash her falseness. With these two cares she did not know
what to do: she confided them to Chnst, the Merciful, who is
helpful when one is in trouble. With prayer and fasting she
commended all her anguish most anxiously to Him.'
It was not only through prayer and fasting that Isolde sought mercy
from God. An "informal kind of penance"'73 was also performed;
according to the story, she gave "away her silver, her gold, her
jewellery, and all the clothes and palfreys she had, to win God's favour,
so that He might overlook her very real trespasses and restore her to her
honour."'74
Her utter submission to God, her complete faith in Him, and the
sympathy she drew by her humility, are vividly described in the
narration of the final moments leading to the test itself:
Isolde had arrived at the minster and had heard mass with deep
devotion. The wise, good lady's worship was most pious: she
wore a rough hair-shirt next to her skin and above it a short
woollen robe which failed to reach to her slender ankles by more

Hyams. strprn n. 3. at 125.

169. Baldwin; sirprcr n. 32. at 329.
170. Gottfried von Strassburg. fi-~srrrrl,IVfrll S ~ r r ~ d ~ ~Frogrver~ts
irlg of /lie Fisrruri o f Tltonins 8
( A . T . Hatto trans.. Pengu~nBooks 1960).
171. These dates are from Baldwin. si~prcrn. 32. at 330.
172. Von Strassburg, sirprrr n. 170. at 246.
173. As interpreted by Olson. s~tpran. 7. at 155.
174. Von Strassburg. s i r p ~ n.
. ~ 170. at 247.
2591 LEGITIMACY OF MEDIEVAL PROOF 287

than a hand's breadth. Her sleeves were folded back right to the
elbow; her a m x and feet were bare. Many eyes observed her,
many hearts felt sorrow and pity for her.'j5
And now the reliquary was brought, on which she was to swear
. . . . Isolde had surrendered her life and honour utterly to God's
mercy. She stretched out her hand to take the oath upon the relics
with fearful heart, as well she might, and rendered up her heart and
hand to the grace of God, for Him to keep and preserve.'s"
There is a complexity and subtlety to the purpose and significance
of the ordeal that will remain elusive so long as we see it merely as a
means of finding fact. As a matter of fact, lsolde was guilty of adultery;
her acquittal was "unjust" insofar she did not "deserve," in the modern
positivist sense, to be acquitted. But her acknowledgement of "guilt"
did not contradict her prayer for "justice" when "'justice" is understood
in the divine sense; with complete faith in God, she pleaded for mercy,
for forgiveness of her "very real trespasses," and sought justification
through His grace.'77
This story is often cited for the ruse carried out by Isolde. She
asked her lover, Tristan, to meet her at a harbor, disguised in pilgrim's
garb. When the ship on which she and the King were traveling was put
to shore, she made a show of requesting help across the ship's gangway.
She picked the disguised Tristan to carry her and they engineered a fall
which resulted in one lying, publicly, in the embrace of the other. In the
oath by which she undertook the ordeal, she swore that she had not been
intimate with anyone but the King and "the poor pilgrim whom, with
your own eyes, you saw lying in my a n n ~ . " " ~As framed, the oath was
literally true. The stoiy ends with Isolde passing the ordeal without
harm. a feat that shows, as Gottfried von Strassburg put it, that "Christ in
His great virtue was as pliant as a windblown ~leeve.""~This sentence
is often read as ridiculing the idea that God is manipulable.'s0 However,
we should note that, even as it does so, the story extols the divinity of
mercy, grace and justice. Indeed, it was precisely the stress on that
divinity which gave the ridicule its force: does it not debase the blessing
of divine mercy, grace and justification to suggest that it can be obtained
-
- ~

175. I(/. at 247.

176 lrl. at 247.

177. The mercy and forgiveness bestowed on lsolde has a Biblical analogy in the famous story
of Christ forgiving the adulterous woman In John 8: 1-1 1.
178. Von Strassburg. srdpra n. 170. at 248.
179. la'. at 248. See Ernest C York. /sol/ i Ordecrl: Eriglisli Legul C r ~ s / o ~iri~ Medie~,crl
is i"ris1rr17
Leperirl. 68 Stud. in Philology 1 ( 1971) (historical analysis of the procedure narrated in this tale).
180. Von Strassburg. sitpro n. 170. at 248. CI: Olson. sirpro n. 7. at 156- 157.
288 JOURNAL OF LA IV B RELIGION [Vol. X I X

by clever trickery? It was not the fact that "God [would] protect sinners
who violat[ed] his laws" that caused the "crisis of faith over the ordeal"
in the twelfth century;'" it was, as we will see. the idea that man had the
powel- to contl-ol the judgment of God.
In "the tenth and early eleventh century clerical opinion seems to
have accepted the ordeal quite comfortably."'" If one sees the ordeal as
a ritual in which the suppliant pleads for divine grace and justification. it
may be likened to sacramental acts, in particular, baptism. Bartlett has
gathered a convincing range of evidence to show that the medievals did
draw this parallel:1S3Hincmar of Rheims (806-882) defended the ordeal
on the basis that "the Lord is invoked according to the model of
baptism"; liturgies for ordeals drew references to baptism:'s\nd both
the water ordeal and baptism were sometimes conducted in the same
spot within churches. Interestingly, the parallel is taken up by some
modem theologians. For example, Kline treats the Noahic deluge as
archetypical of water ordeals.'" Baptism. he argues, should be
understood not as a "mere ceremonial bath of purification"1" but as a
sign of the water ordeal, an encounter symbolizing the submission of the
participant to God for judgment, a process in which they "identify
themselves by faith with the Lord . . . in their passage through the

18 1 . Bald\vln. sl~prcrn. 32. at 340.

182. Bartlett. srtprn n. 32. at 81. Unlike the case of the ordeals. no theological battle \\as
fought o \ e r the Church's positions on the trial by oath and that by battle: the first mas endorsed
and the second not. That an oath should put "an end to all strrfe" would appear. from Heb 6: 16. to
be part of Christran teaching: "For men verily swear by the greater: and an oath for confirmation is
to them an end of all strife." As Van Caenegem notes. "the purgatory oath . . . was not the object
of any opposition or condemnation from the Church. which had included it In its modernized legal
system." Van Caenegem. sltpra n. 2. at 93. The procedural similarity between the canonical
purgation practiced by the Church courts and the uager of l a b practiced in the secular courts is
noted by Helmholz. hitpro n. 21. at 13. The duel. on the other hand. was considered "barbarous
and anti-Chnstian. as uell as the \,cry negatron of lau. and was denounced by Christian thinkers
from a date coeval wrth the first record of its exrstence." Galbraith. sitpi-n n. 32. at 287. "It I S . . .
likely that to the best medieval minds the duel was something to be ashamed of. but something
from ~ \ h l c hthey h e r e unable to escape." id at 288.
183. Bartlett. -rttpi.a n. 32. at 88-89.
184. See the Germanic liturgical fonnula for the consecration to be said over the proband in
the test of the cold water as translated and reproduced in Ernest F. Henderson. Se/ecl 1Z/isroricii/
Docitn~etii.r of ~ l l e.Mrdd/e Ages 3 14-3 17 (George Bell &r Sons 1910) (excerpt avarlable at
~ h ~ ~ ~ ~ ~ \ ~ ~ ~ . f o r d h a m . e d ~ / h a I ~ a l ! / s o ~ u r c e(accessed
~ o r d e a l sOct.
l . h ~14. 2004) ("May
omnipotent God. u h o did order baptism to b e made by water. and did grant remission of sins to
men through baptism: may He. through His mercy. decree a rrght judgment through that water.").
185. Meredith G. Kline. Ortill ciilrl' Oideul S;gii-r. 27 Westininster Theological J. 115. 132
( 1965). "The main features of the subsequent divine-nver trials were all found rn the judgment of
the Flood: the direct revelation of di\ine \erdrct. the use of mater as the ordeal element. the
overpouerrng of the condemned and the delilerance of the justified." id.
186 l d . a t 133.
2591 LEGITIMACY OF MED1EJ"AL PROOF 289

ordeal.77187
Yet, there had been dissent fi-om the ordeal from the beginning.
Arguments challenging the theological legitimacy of trial by ordeal,
which appeared from as early as the ninth century, began to acquire
influential supporters from the eleventh century, and gained decisive
victory in 1215.''~ While it is now natural to demand that justice be
done, one cannot speak of a right to divine justice.Ig9 In under-taking
proof, the proband is not seeking to assert a light; on the contraiy, the
person is submitting himself to the mercy of God, seeking His
justification through faith. Underlying this theological explanation of
the ordeal is an important assumption: that God will judge the case, that
it is licit to reqllire Him to do so. While this is not demanding justice
from God (for it is still consistent with the belief that His justification is
a divine gift), it is, in effect, forcing God to judge and to give His
judgment here and now. This raises the doctrinal problem that the "only
guaranteed supernatural events were the sacraments and these had to be
canonical." Although there are Biblical references to the use of
ordeal,"' or to ordeal-like events 01- analogous practices,'9' and despite
the parallel noted above with baptism, the official Church position was
finally settled in 1215 that it was ~ n c a n o n i c a 1 . l ~The
~ view prevailed
that it was "impious to believe that a constructed human test-the
ordeal-could 'force' God to show his hand. That was testing ~ o d . " ' ~ '
And the Biblical injunction not to tempt God is ~ 1 e a r . IThe ~ ~ "tempting
of God" may be construed as the sin o f trying to force "Him to render
judgment when He is not ready to do so."'" The Almighty is not to be
dictated to; He will decide, in His perfect wisdom, when the righteous
will be justified and the wicked punished. So it is written in the book of
Ecclesiastes:

187. Id, at 138. See Mered~th G. Kline. Orr111 rrrld Ordetrl Srgrls-Seror~rl Arrrcle. 28
Westminster Theological J . I , 1-23 ( 1965).
188. This process is traced in Bartlett. s~rpr-rrn. 32. at 81-90; and Baldwin. ~irpr-on. 54.
189. For "who hath first given to him. and 11 shall be recompensed unto hlm again?" Rom
1 1 :35.
190. The most explicit reference is in Num 5: 1 1-3 1.
191. Such as the drawing of lots to expose the guilty. Jonah 1 :7.
192. Bartlett. slrprtr n. 32, at 83-86.
193. Id. at 86.
194. See Deut 6:16 ("Ye shall not tempt the Lord your God"): Matt 4:7 ("Thou shalt not tempt
the Lord thy God"): Luke 4: I2 ("Thou shalt not tempt the Lord thy God"): and Acts 15:10 ("Now
therefore why tempt ye God. to put a yoke upon the neck of the disciples. lvhich neither our
fathers nor we were able to bear?").
195. Bloomfield. slrpi.rr n. 63. at 547.
 JOURNAL OF LA W & RELIGION [Vol. XIX

I saw under the sun the place of judgment, that wickedness was
there; and the place of righteousness, that iniquity was there. I
said in mine heart. God shall judge the righteous and the wicked:
for there is a time there for every purpose and for every work.'96
It was not the unreliability of the ordeal in revealing the truth that
undermined the divine nature of the ordeal, but the loss of faith in the
divine nature of the ordeal that opened it for criticism of unreliability.
Once the hand of God is removed from the outcome of the trial, its
acceptability loses i n ~ n ~ u n i tfi-om
y human challenge. If it is not
revelation of the tluth of God that we are after, the ordeal must now be
judged by man's capacity to deliver the truth of facts. The degree to
which people were critical of the ordeal increased with their intellectual
self-confidence, and it is to this increase in intellectual self-confidence
that we will now turn.

B. The Rise of Intellectualism

The values emphasized or attitudes reflected in the ordeals were
those of submission and faith, obedience and humility. These are
attributable, as Stokes observes, to the general "sensibility" of the age.I9'
Scientific progress has pushed back many mysteries of the past. Our
conquest of nature. physically and intellectually, is everywhere manifest.
We see facts and constantly seek explanations. The medieval peoples
lived in entirely different circumstances. Human vulnerabilities and
limitations were everywhere exposed by the vicissitudes of primitive
life. In these conditions, it is not surprising that the intellect should stand
in awe-in almost unimaginably greater awe than now-of the great
unknown.'98 Through " ' r ~ m a n e s ~ u e "or' ~ "providentia1"200
~ lenses, the
early medieval peoples see, not facts, but signs; they seek, not
explanations, but hidden testimonies. To us, a thunderstolm is a fact
caused by changes in atmospheric conditions; to the pre- and early
Christian intellect, it is the demons displaying their envy or God
expressing anger.20'

196. Eccl 3: 16- 17.

197. Myra Stokes. Jltstrte o r ~ d.Me!-ej. I I I Piers Plo1~-1na17: ~ B Te.r/ Vi.sio 35
A R P N ~ Io If I111e
(Croom Helm 1984).
198. Marc Bloch. Fei~dniSocierj. 72-3. 82-83 ( L . A . Manyon trans.. Routledge & Kegan Paul
1961).
199. Morris. S I I ~ I -n.~ I40. at 1 10.
200. Bloomfield. szrpi.cr n. 63. at 551.
201. Brown. slrprcr n. 3. at 144. "The fare our times." as Weber once commented, "is
characterized by rational~zationand intellectualization and, above all. by the 'disenchantment of
the \vorld."' Max Weber. 1~1.01it in S o c i o l o ~ .155 (H.H. Gerth & C. Wright
!Mc~.rMeher, Essssil~..~
2591 LEGITIMACY OF A4EDIEVAL PROOF 29 1

The decline of the ordeals occurred in the period when, through the
growth of reason as an intellectual activity, nature became "n-lore
accessible to a scientific approach,"'"' a time that saw the focus of
interest moving fi-om the "unity and symbolism of events in God" to the
"n~echanicsof their secondaly causes."203 It is this shift that led Adelard
of Bath (1080-1 142) to argue that a thunderstorm should be treated, not
as a message from God, but as a natural event, opened to investigation
as to its immediate ~ause.~~"owever, reason and faith were not taken
as antithetical; for many twelfth century scholars, reasons supported
faith.'"' There was (and, of course, is) room, in Christian dogma, for
"miracles" and the "supernatural"; and we should note that belief in the
power of saints to work miracles remained undiminished during the
decline of trial by ordeal.206 Even so, as the province of the natural
increased, that of the supernatural, and within it the miraculous,
necessarily shrank.
The differences in living conditions and mental outlook explain
why modern adjudication is premised on facts and reasoning while
medieval adjudication, when the answer was not at hand, was submitted
to the spiritual realm for resolution. W e have a different epistemological
framework from those who lived many centuries before, and we have far
greater confidence in our ability to acquire knowledge through evidence.
This confidence emerged alongside a change-a perceived
advancement-in epistemological methods and technologies.
"Nowadays, we use evidence, analyse data, design experiments and
assess credibility in terms of probabilities."207 But the modern doctrine
of probability and inductive reasoning were developed late.'08 Hacking
claims:
For the medieval, evidence short of deduction was not really
evidence at all. It was no accident that probability was not
primarily a matter of evidence or reason. Probability pertains to
opinion, where there was no clear concept of evidence . . . . It

Mills trans. & eds.. Oxford U . Press 1946).

202. Alexander Murray. Rerisort u ~ t dSocierj iri /lie Middle .4pes I 0 (Clarendon Press 1978).
203. Ward. s ~ ~ pn.r 125.
. ~ at 6.

204, Id. at 7.

205. Edvard Grant. God ntld Reusori iit flte .-4it/rr'leAges 51-68 (Cambridge U . Press 2001).
206. See sources cited szipr-n n. 168.
207. Ian Hacklng. Tlie Ttrrtliiig ofCI~(irtce4 (Cambridge U . Press 1990).
208. The history of modem concept of probability did not clearly begin before the later half of
the selenteenth centur).. I t was. apparently. In the correspondence between Pascal and Fermat that
the problem was first put in mathematical form. See Lorra~neDaston. Classicrrl ProDriDili!\. in the
fitli~~hrertriierir3 (Pnnceton U. Press 1988).
 JOURNAL OF LA W & RELIGION [Vol. XIX

indicated approval or acceptability . . .""

Concepts of testimony and authority were not lacking: they were
all too omnipresent as the basis for the old medieval kind of
probability that was an attribute of opinion. Testimony is
support[ed] by witnesses, and authority is conferred by ancient
learning. People provide the evidence of testilnony and of
authorit
rhings.2 x.
What was lacking was the evidence provided by

"Evidence of things" does not mean "sense data." Hacking

borrows this illustration from ust tin:^" although the animal is not in
sight, we may s u ~ m i s ethat a pig is around the vicinity from the "pig-like
marks on the ground," "buckets of pig food" and the "noises and smell."
These things provide evidence for- our hypothesis. But when the pig
comes into view, it does not supply us "with more evidence that it's a

Hacking uses "evidence7' to refer to the "matter of inferring one

thing fiom another thing"; evidence of a thing is the evidence of a thing
that points beyond itself in a non-deductive way.*I3 He labels testimony
and the evidence of things as external and internal evidence respectively
and he claims that this distinction was recognized only from the
seventeenth century. External and internal evidence are essentially what
modem lawyers would call direct and circun~stantial evidence
~ - e s ~ e c t i v e l ~It . ~is~ ~not Hacking's argument that circumstantial
evidence was completely ignored by the medievals. As he is quick to
add:
to say that there was no concept of internal evidence is not to say
that people did not use what we call evidence. Doubtless men
have long inferred that there was a pig in the thicket from the
sound, smell and broken branches. But dogs and boars can tell

--

209. Ian Hacking. Tile E ~ i i e r g e ~ ~ocfe Probrrbilirj, 22 (Cambridge U . Press 1955). For
discussion on Hacking's thesis, see David A. Schum. Tile E~~icle~iriol Fo~rr~ckrfio~is yfPr-ol~irbilrstic
Recrso~~ittg 13-14 (John Wiley 8c Sons 1994): llkka Kantola. Proberbilit?; arid Moi.nl Uitcer~criri!,.;I7
Lure .li/edievcri iilid Ear-(1: Moder17 T i ~ ~ i e(Luther
s Agncola Socy. 1994): and Lorra~neDaston.
M a ~ i ~ e l Facts
o ~ ~ s 011dMil-cic~rloirsEviderlce iri Ecii-11. .Zrlodern Ellrope. in Q ~ ~ e s r i o of
r ~ El.iderice-
s
o ~ ~ tile Disciplitles 243-274 (James Chandler. Arnold I.
Proof; PI-trcfice, (r~idP e r ~ ~ r i i s iAcross
Davidson 8c H a n y Harootunian eds.. U. Chi. Press 1993).
210. Hacking. slrprn n. 209. at 32 (emphasis in orizinal).
21 1 . Jei at 32. referring to and quoting J.L. Austin. Seiise mid .Serisibiiia 1 1 5 (Clarendon Press
1962).
21 2. id. ( e ~ n p h a s in ~ sorig~nal).
213. Hacking. slrpr-cr n. 209. at 37.
214. See Alexander Welsh. Siro17g Rep~-ese~ir~ifio~is-~Z'i~i'r(~ti~~e o~iclCircri1~7sic11i/inl Eviderlce
it1 E ~ i g l c ~ ~12i d(Johns Hopkins U. Press 1992).
2591 LEGITIMA CY OF MEDIE VAL PROOF 293

there is a pig, and do not thereby have a concept of evidence."'

Hacking has been rightly criticized for having overstated his case.
Value was accorded to circumstantial evidence fi-om very early on, or at
least the concept of internal evidence was recognized much earlier than
he However, his general insight that, in medieval times.
testimony was considered as the definitive kind, or focal idea, of proof
remains persuasive. Consider. for instance, how the medieval court
handled a situation where someone was caught in possession of stolen
goods. In such a case, "the plaintiff with his oath-helpers was allowed
to produce his oath, and if he did so successfully. all that was left for the
defendant was to pay the penalties or to go to the ordea~.""~
Circumstantial evidence was thus given some weight. But it was simply
not good enough to constitute "proof'; for that, testimony backed by
oath was necessary. The only way for the defendant to defeat the
plaintiffs accusation was to pass an ordeal. The result of that test was
not treated as "internal evidence," a thing pointing beyond itself to
innocence or guilt; it was not meant to provide inferential support for a
hypothesis. It was, instead, conceived as "external evidence.'. Through
the ordeal, God speaks. To pass the test is to obtain approval fi-om the
highest authority.
The medieval courts did rely on direct evidence in the f o m ~of oral
t e s t i m ~ n ~ . ~ ' % ~ a iti nis, consistent with the general thrust of Hacking's
theory that when a witness was called, he did not give testimony in the
modem sense of narrating facts: "The contents of the witness-oath
furnished no new material to the proof each witness reiterated the points
of proof declared by the and "swore only to the assertion of
his chief."220 This "assertory" oath, as it is c a ~ l e d , ~is " nothing like the
oath taken by a contemporary witness prior to testifying. Whereas the
modem oath is a promise to tell the facts fully and truthfully. swom as a

21 5. Hacking. J I I ~ I - n.
~ I 209. at 34.
2 16. Dan~elGarber & Sandy Zabell. 017rhe Einei-geirce o f Probobrlrn.. 21 Archive for Hist.
Exact Sciences 33 (1979): Mirjan DamaSka. Heorso?; iii Ci~icjr~ece~ito Iro/r. in S n ~ d iirr 011o1.edi
I/irroi-ioDe17ri vol. I . 63 n. 63 (Michele Faruffo ed.. CEDAM 1994): Mlrjan Damaika. OfHeursrr!.
n17d Its A~iolognes.76 Minn L. Rev. 425. 435 n. 24 (1992): and W. Ullmann. .Mediei~rr/Prri7ciple.s
ofE1~ide17ce. 62 L. Q. Rev. 77. 86-87 (1946).
21 7. \Vh~telock.srrpru n. 19. at 335. Similarly. see Holds\vorth. s~cpi-(I n. 16. at 300.
215. Green. s11p1-rrn. 24. at 87. They also rel~edon evidence In the form of \\r~ting.as In a
charter. Patrick Wormald. Chu~.rei-s.Lnir u17d the Serrlenle17io f Disptrres rii iiilglo-Su.uo17 E17glr11id.
In Tlie Sertlenier7i o f Drspr~tes117 Eu~-/i:.l.ledievnl Ellrope 149 (Wendy Davies 8: Paul Fouracre
eds.. Cambridge U . Press 1986).
2 19. Laughlin. strprrr n. 17. at 188.
220. I d . at 186-1 87.
221. For example. by Pollock & Maitland. sl~pran. 35. at 601.
294 JOURNAL OF LA W & RELIGION [Vol. X I X

prelude to testimony, the medieval oath was in and of itself a direct and
an unequivocal asseltion of the justice or injustice of the cause."' As
Thayer remarked: "There was no testing by cross examination: the
operative thing was the oath itself, and not the probative quality of what
was said. or its persuasion on a judge's m i n d . " " ~ h e r e a s testimony is
now weighed in large part by the coherence or rational weight of its
content, the power of medieval witness-proof laid in the witness's
standing as a direct source of knowledge. on his character and social
rank."\and on his having "invoked the Deity to the tlvth o f * his
assertions.'" This fits Hacking's suggestion that probability in the
medieval sense was more closely associated with personal approval and
authority than with evidential inferences and objective rea~oning."~

VI. ETHICAL
LEGITIMACY
Our discussion of the spiritual legitimacy of the modes of proof
focused on man's view of his relation with God. Supplementing the
religious significance of medieval trial procedure was an ethical
dimension pertaining to man's relation with his fellow man. Huizinga
argues that it "is not so much the abstract question of right and wrong
that occupies the archaic mind as the vely concrete question of winning
or losing." He took the ordeal as an example where 'Lb]ustice is made
subservient-and quite sincerely-to the rules of the gan~e."227But it
would be wrong to suggest that the underlying theory of justice is what
Rawls calls "pure procedural justi~e."~'' Such a system ofjustice can be
found, for example, in the coin tossing example given earlier or, more
generally, in a fair gamble: here

222 See Bigelow. sr1pi.n n. 15. at 308:

Trial by aitnesses to the fact was very common both In the pre-Nonnan and in the

Nomian periods. Unlike coinpurgators who smore to their pr~ncipal's credibility.

\~.itnessesto the fact swore to inatters de ~ ~ i \ r rer N I I ~ ~ They

~ I I differed.
. however.

essentially from the inquis~torsand recognitors of the time. and from modem witnesses.
They gave their testimony in ordinary cases in accordance with the narrow formula of
the medial judgment: they were not examined as to the facts.
223. Thayer. slrpro n. 15, at 17. See Holdsw,onh. slip/-an. 16. at 302.
224. See Laughlin, sr~pran. 17. at 297-298.
225. Id. at 188.
226. Or. to put it in another way. the m e d i e ~ a lidea of "probability" "suggests uppi-obrrrrori
\kith regard to the proposition accepted and p~-obitj,uith regard to the authorities who accept rt."
with llttle emphasis on "the arguments which are presented in fa\.or of the opinion in quest~on."
Edmund F. Byme; P/.obnbilirj. rirrtl Opi~iiori:A Srr~dj,iri rl7e Mediel~nlPi~esripposirio~is o f Post-
.\Iedie\~trl Tlleories ofProbnbrlitj 188 (Martinus Nijhoff 1968) (emphasis in orig~nal).
227. J. Huizinga. Honio Lrrderrs: A S / I / ~o f.r h e Plr/~-Eler1ie17tI I I Crilrro-e 79 (Beacon Press
1955).
228. As Yelle seems to think: srip~-rrn. 50. at 270.
2591 LEGITIMACY OF MEDIEVAL PROOF 295

there is no independent criterion for the right result: instead there

is a correct or fair procedure such that the outcome is likewise
correct or fair, whatever it is, provided that the procedure has been
properly followed.'"
This is not conceptually true of a medieval trial. The verdict is just not
merely because the "the rules of the game" have been followed but only
insofar as proper compliance with the required procedure does reveal the
divine
Equally, it must not be thought that the attention to procedure was
exclusively on its efficacy as a means of obtaining the judgment of God;
l-unning alongside this focus was a visible concern for fairness. Mingled
with the spiritual aspect of procedure as the n?eans of obtaining divine
justice was an ethical concern with justice (or fairness) in the procedure.
Such was the degree to which the ethical conceln was manifested that
one writer goes so far as to claim that medieval trials possessed all the
essential attributes of procedural fairness: "There was a definite and
known accuser who publicly confronted his antagonist, trials were open,
and judges acted as arbiters to enforce the rules of fairne~s."'~'
To a certain extent, there was a presumption of innocence. The
Magna Carta of 12 15 prohibited the bailiff from putting "anyone to trial
upon his own bare word, without reliable witnesses produced for this
purpose."2" The accused cannot be made to undergo an ordeal unless
the accuser and a sufficient number of supporters took the necessary
oaths, thus furnishing "a prima facie proof of guilt."233 The remark that
there was "a tendency to fly to the ordeal in any matter of doubt

229. Rawls. sttprcr n. 10. at 75.

230. For this reason. Bloch is only partly right in saying this of the trial by battle (Bloch. .si~/~rir
n. 26. at 5 1 ):
That which corresponds not to the facts but to the rules of procedure is just. and any
departure from the precepts belonging to the community constitutes an abrogation of
justice. Barring abrogation. there is. in effect. no way for the court to judge falsely and.
hence. no principle exterlor to itself by which it may judge truly. In this it is the opposite
of the modem court. for which the uniform application of objective standards and the
abstract principle of equity define the parameters ofjudicial truth.
23 1. David J . Bodenhamer. Frrir Tricri-Righis of the Ac.c~tsed irl .41?1ericnrlHisror:~. 1 1 - 12
(Oxford U. Press 1992). The p u b l ~ cnature of the entire proceedings is also highlighted by Thayer.
sllpra n. 15. at 8-9.
232. This is provided in ch. 35 of the charter. an English translation of \vh~chappears in Harry
Rothwell. Englisl~/ ~ I J I O I . Docttnle17rs
I(~I/ 1/89-1327. vol. 3. 316. 320 (Dawd C. Douglas gen. ed..
Oxford U . Press 1975). This clause "probably . . . applied both to ci\il and crim~nalcases. and
meant that no one could be made to pro\,e his innocence by any of the recogn~zedforms of proof
unless there was a sufficient p r m a facie case made out against him." Holdsworth. .rriprn n. 16. at
300.
233. Forsyth. .rlcpro n. 22. at 67.
296 JOURNAL OF LA W & RELIGION [Vol. XIX

what~oever"'~'has been thoroughly discredited: it is now clear that the

method of ordeal was not used when there was no case to begin with,
and was normally employed only where the evidence against the
accused was substantial."' In the bilateral ordeal of judicial duel,
fairness was expressed in the literal insistence of "equality of arms": the
law provided that swords236must be of equal length.237 An elaborate
effort to ensure a fair contest appears in an interesting account of a trial
by battle between a man and a woman: to redress the natural imbalance
of physical strength, the man was buried to his waist, had his left hand
tied behind his back and was armed only with a mace whereas his
opponent "had the free use of her limbs and was provided with a heavy
stone securely fastened in a piece of The principle of equal
treatment can be detected as well in the rule that equal numbers of the
parties of the accused and the accuser should be present at the ordeal.
Each side thus had the same number of representatives to ensure that the
procedure was properly followed, that there was no tampering with the
test or bias in the interpretation of the result.239
There was also some (albeit crude) sense of proportionality. "The
difficulty of the oath or of the ordeal would vary directly with the
gravity of the charge"'30 and with the credit-worthiness of the man who

234. Southern, .\i~prrrn. 31. at 96.

235 See James Franklin. Tire Sclerire o f Corijecnrre. Eilidet7ce ~ i i dProbohiliij. before Pascal
25-26 (Johns Hopkins U. Press 2001); and Holdsworth. s~rprun. 16. at 300.
236. Swords and lances were used in the Court of Chi\,alry. At trials in the ordinary courts of
law. spec~aland less deadly weapons "made of wood and horn. and look . . . like short pick-axes"
h e r e employed. H. Goitein, Prinliti\,e Ordetrl rri~dModeni Ltr14.65 (Turnbull & Spears 1923): and
Windeyer. Jrrprn n. 22. at 44.
237. This requirement is stated in the Frislan laws of the elelenth century. but Bloomtield
believes that the principle equality of ~veaponsis of even older origins. Bloomfield. ~ i r p ~n.a63.
at 551.
238. Lea. .\~rprtrn. 18. at 120.
239. .4n anony~nousAnglo-Saxon decree. d a t ~ n gprobably from the time of King Aethelstan
(925-940). states that "\+)hen the ordeal is ready two Inen shall go in from e~therparty. and they
shall be agreed that ~t I S as hot as" is requlred at law. Attenborough. ~irpr-(In. 41. at 171. See
Rollason. artpro n. 3 1 . at 16: In a water ordeal. equal representatives from both sides were asked to
witness the submersion. This was so that the judgment of whether the proband had sunk
sufficiently. a subjective matter, could be seen as 'ljust or at least fa~r."
240. Pollock &: Maitland. sirpr-a n. 35. at 603. See Whitelock. sripr-cr n. 19. at 336:
Just as the size of oath requlred for compurgatlon Increased in proportion to the
seriousness of the charge. so also the ordeal could be s ~ m p l eor threefold: in the latter
case. the hand must be plunged into the cauldron up to the elbow. instead of the ~vrist.in
the ordeal of hot ivater. ~vhilethe ~veightof iron was three pounds instead of one in the
ordeal of Iron.
Bigelon.. slrpi-(In. 15. at 326 ("if the party \\ere accused of an Inferior crime. he plunged his arm
into the \\atel as far as the wnst . . .: if he were accused of a great crime . . . [he had] to plunge
his arm into the water as far as his elbo\v"): Laughlin, s~cpi-crn. 17. at 303 ("Whether a single or a
threefold ordeal \\as taken depended on the gra\ity o f the offence"): and Moore. .slcprir n. 53. at 29
2591 LEGITIMA CY O FMEDIE TfAL PROOF 297

had to make or undergo it.241 Compurgation. a relatively (and only

relatively) easy mode of proof, was usually awarded to a defendant who
faced a weak accusation; if "a plaintiff had nothing more than his bare
word to support his action . . . the defendant's oath, backed by the oaths
of twelve other persons, was a sufficient defence."'" The required
number of oath-helpers varied according to the significance of what was
at stake2" and the severity of the alleged 0 f f e n ~ e . l ~According
~ to
Lea:'3'
the number diminishes in proportion to the gravity of the case, as
is well illustrated by the provisions for denying the infliction of a
bruise. If the mark remained until the ninth day, the accused could
deny it with "two persons of the same privilege as himself'; if it
remained until the eighteenth day, the oaths of three conjurators
were necessary; if till the twenty-seventh day, four I-aith-men were
required.
There was, thus, much in medieval trial procedures that expressed
recognizable principles of fairness. This suggests that those who
devised the rules were not solely preoccupied with establishing a
spiritual connection. The central aim, no doubt, was to seek the justice
of God; but in this pursuit, effort was taken to do justice between man
and man.

VII. CONCLUSION
While it is tempting to criticize the trial by ordeal, wager of law
and judicial combat for their apparent il-rationality and cruelty, these
institutions cannot be dismissed simply as the appalling products of
ignorant, superstitious and brutal societies. The legitimacy o f these
modes of proof stand scrutiny quite well on external examination of
various kinds: it is now recognized that they reflected the circumstances
faced by early medieval communities, and were valuable as socio-
political tools; and, further, their rationality as fact-finding or epistemic
devices has been defended on naturalistic grounds.

("For the mildest crlmes. three compurgators sufficed: for inore severe matters. six were required:
to the most atrocious charges. the defendant had to produce 11 compurgators. with his o\r3noath
making the t\\elftli.").
241 See Bartlett. slrprn n. 32. at 31: Hyams. siipin n. 3. at 107-10: and Moore. ~ l ~ p n.
r n53. at
29. 31.
242. Holds\\orth. s ~ ~ p r n. t r 16. at 307.

243 See Laughlin. silpl-n n. 15. at 298.

244 See Helmholz. srcpi-u n. 21. at 16-17.

245. Lea. s l ~ p r nn. 18. at 40. See id at 50.

298 JOURNAL OF LAW & RELIGION [Vol. X I X

Even though studies on those fi-onts are valuable, we cannot get a

full grasp of the modes of proof unless we seek to understand them fi-oin
within, through the eyes of the believing participants. We can see what
medieval Westei-n Europeans saw, however n~istakenly.as woi-thy and
good in those practices, especially of the trial by ordeal, only if we adopt
their religious outlook. The animating aim was not justice in the foimal
positive sense; facts were not found to which the law was precisely and
rigorously applied. Adjudication was approached holistically. Centi-a1
to the process was the seeking of divine justice, through faith and the
grace of God, and within which mercy and tivth had their intrinsic
places. Intertwined with this spiritual aspect was an ethical concern. as
displayed in the discernible effoi? to formulate fair pi-ocedure. Thus, the
medieval modes of proof were, to a degree, legitimate not only as
instruments to achieve justifiable socio-political ends or as methods of
fact-finding. More impoi-tantly, they were, in the eyes of the faithful, of
profound spiritual meaning, and reflected, in the effort to achieve
procedural fairness, a notable element of humanity.
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The Legitimacy of Medieval Proof
H. L. Ho
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Reason and Unreason in Early Medieval Law
Rebecca V. Colman
Journal of Interdisciplinary History, Vol. 4, No. 4. (Spring, 1974), pp. 571-591.
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6
Review: Trial by Ordeal
Reviewed Work(s):
Trial by Fire and Water: The Medieval Judicial Ordeal by Robert Bartlett
Robert C. Palmer
Michigan Law Review, Vol. 87, No. 6, 1989 Survey of Books Relating to the Law. (May, 1989), pp.
1547-1556.
Stable URL:
http://links.jstor.org/sici?sici=0026-2234%28198905%2987%3A6%3C1547%3ATBO%3E2.0.CO%3B2-U

13
Law and Fact in the Medieval Jury Trial: Out of Sight, Out of Mind
Morris S. Arnold
The American Journal of Legal History, Vol. 18, No. 4. (Oct., 1974), pp. 267-280.
Stable URL:
http://links.jstor.org/sici?sici=0002-9319%28197410%2918%3A4%3C267%3ALAFITM%3E2.0.CO%3B2-9

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Law and Fact in Legal Development
S. F. C. Milsom
The University of Toronto Law Journal, Vol. 17, No. 1. (1967), pp. 1-19.
Stable URL:
http://links.jstor.org/sici?sici=0042-0220%281967%2917%3A1%3C1%3ALAFILD%3E2.0.CO%3B2-N

56
Superstition to Science: Nature, Fortune, and the Passing of the Medieval Ordeal
Charles M. Radding
The American Historical Review, Vol. 84, No. 4. (Oct., 1979), pp. 945-969.
Stable URL:
http://links.jstor.org/sici?sici=0002-8762%28197910%2984%3A4%3C945%3ASTSNFA%3E2.0.CO%3B2-1

85
Oaths, Autonomic Ordeals, and Power
John M. Roberts
American Anthropologist, New Series, Vol. 67, No. 6, Part 2: The Ethnography of Law. (Dec.,
1965), pp. 186-212.
Stable URL:
http://links.jstor.org/sici?sici=0002-7294%28196512%292%3A67%3A6%3C186%3AOAOAP%3E2.0.CO%3B2-7

88
Cold Water and Hot Iron: Trial by Ordeal in England
Margaret H. Kerr; Richard D. Forsyth; Michael J. Plyley
Journal of Interdisciplinary History, Vol. 22, No. 4. (Spring, 1992), pp. 573-595.
Stable URL:
http://links.jstor.org/sici?sici=0022-1953%28199221%2922%3A4%3C573%3ACWAHIT%3E2.0.CO%3B2-Z

118
The Christian Middle Ages as an Historiographical Problem
John Van Engen
The American Historical Review, Vol. 91, No. 3. (Jun., 1986), pp. 519-552.
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119
The Specific Rationality of Medieval Magic
Richard Kieckhefer
The American Historical Review, Vol. 99, No. 3. (Jun., 1994), pp. 813-836.
Stable URL:
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120
Review: Missionaries and Magic in Dark-Age Europe
Reviewed Work(s):
The Rise of Magic in Early Medieval Europe by Valerie I. J. Flint
Alexander Murray
Past and Present, No. 136. (Aug., 1992), pp. 186-205.
Stable URL:
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141
Evolution of Medieval Mentalities: A Cognitive-Structural Approach
Charles M. Radding
The American Historical Review, Vol. 83, No. 3. (Jun., 1978), pp. 577-597.
Stable URL:
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143
Justice: Classical and Christian
Frederick G. Whelan
Political Theory, Vol. 10, No. 3. (Aug., 1982), pp. 435-460.
Stable URL:
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144
Seasoning Justice
Carla Johnson
Ethics, Vol. 99, No. 3. (Apr., 1989), pp. 553-562.
Stable URL:
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154
Review: Justice, Mercy, and Late Medieval Governance
Reviewed Work(s):
Kingship, Law, and Society: Criminal Justice in the Reign of Henry V by Edward Powell
Pat McCune
Michigan Law Review, Vol. 89, No. 6, 1991 Survey of Books Relating to the Law. (May, 1991), pp.
1661-1678.
Stable URL:
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