Just one long ordeal?
Once again I've been sort of asked to comment on a recent news story, though this one is rather less major than the previous one. A little while ago one Peter Leeson wrote a piece for the Boston Globe putting"the case that ‘trial by ordeal’ actually worked". You know, the whole business with plunging a champion's hand into a cauldron of boiling water, then binding it up and seeing how it was healing after three days? There were lots of variants of this used in the Middle Ages, submerging the whole person in cold water and seeing if they floated or not, having the person hold hot coals or a heated iron bar and then checking the burns later... many. The idea is always the same, though: to elicit the judgement of God on the guilt or innocence of the party who had got someone, sometimes themselves, to stand the ordeal. Leeson tries to explain how this is a rational approach, given a few basic assumptions. But unfortunately those assumptions are quite easily found false and so Leeson's whole thesis suffers from problems. There are better explanations of the ordeal. And Ralph, noting the sceptical opinion of another medievalist, asked why more of the cynical medieval blogs hadn't leapt on this. Well, I'm the resident medievalist cynic, right? So I said I'd have a go.
Leeson's basic argument is a game theory one. If you believe that the ordeal works, you'll only take it if you're innocent. Therefore proposing the ordeal was a way to distinguish the sheep from the goats, innocent from guilty, and given the universal religiosity of the Middle Ages this actually makes perfectly good sense as a judicial system! Plus it's cheaper and quicker than a full jury trial. Right? Well, in theory, apart from the 'cheaper and quicker' bit—there's an elaborate ritual involved and of course everyone has to come back again three days later to see the results. And the rest, actually, also rests on some pretty flimsy assumptions that Leeson himself undermines.
The crucial juxtaposition is this:
The only defendants who would have been willing to go through with the ordeal were therefore the innocent ones. Guilty defendants would have preferred to avoid the ordeal - by confessing their crimes, settling with their accusers, or fleeing the realm.and:
The next thing to understand is that clerics administrated ordeals and adjudged their outcomes - and did so under elaborate sets of rules that gave them wide latitude to manipulate the process. Priests knew that only innocent defendants would be willing to plunge their hands in boiling water. So priests could simply rig trials to exonerate defendants who were willing to go through with the ordeal. The rituals around the ordeals gave them plenty of cover to ensure the water wasn’t boiling, or the iron wasn’t burning, and so on. If rigging failed, a priest could interpret the ordeal’s outcome to exculpate the defendant nonetheless ('His arm is healing well!').
There is something in this, at least. There are a lot of cases preserved where the ordeal was preserved, and then someone ducked out of taking it and therefore lost by default.1 And there are a few that unroll as Leeson suggests, with the judgement given and the innocent excused. But there are also a good few that are the wrong way round for Leeson. You could rig innocence, for example, but you couldn't easily rig guilt: yet people did take the ordeal and fail it. And of course, if one was guilty, knew this, and knew that the trial would come to ordeal, and believed that one would fail, why would one ever have stood trial, or, standing it, not confess? The ordeal, as Leeson rightly says, was called on to decide difficult cases: but those cases were only difficult because someone was being obdurate. If the ordeal was a guaranteed resort, and the guilty thought as Leeson feels they would have thought, they must have known they would fail. Why go through with it at all? Why not settle out of court well before it got to that stage?
So it doesn't make enough sense. Leeson's theory presupposes that elusive creature, the rational economic actor, but it also needs that actor to be very stupid, because as you can see it only works if the people taking the ordeal haven't worked out that the clerics could rig it, and could never, ever, be complicit with them. It also needs him (women were rarely allowed a judicial voice in this era, and would have been represented both at court and in the ordeal by a man) to have been devoutly convinced of God's rôle in the process (or, as Leeson would have it, 'superstitious'). Otherwise, they must realise it's not necessarily God's judgement at all, which undermines the whole logic. Also, you have to assume that those clerics themselves did not believe that God would speak in the process; this seems to be rooted in an idea I've met have that the medieval clergy must all have been in on the Great Deception of Christianity, which is just kind of blinkered. For this to work consistently, Leeson needs all of medieval society to have been surpassingly credulous except the ministers of religion, who must universally have been cynical jades. I'm pretty sure it wasn't like that. There are, for a start, too many aggrieved records from monks about irreligious men stealing their stuff for it to hold water, cold or boiling...
So, let me borrow a section of a book by Jeffrey Bowman, and give a counter-example case.2
In March 988, a representative of the monastery of Sant Cugat accused a man named Sentemir of concealing his brother's testament. According [to] the monastery's witness, Sentemir had instructed his wife to burn the missing will, and she had complied. The monks of Sant Cugat were particularly concerned about this document because it had allegedly stipulated a generous bequest to the monastery....
In order to recover the bequest recorded in the destroyed document, Sant Cugat's representative, Pons, went before a court presided over by Bishop Gondemar of Barcelona, Abbot Odo of Sant Cugat, and judge Bonhom of Barcelona. Pons presented a witness, a priest named Ennego, who testified that he had seen the missing testament and was familiar with its contents.... Despite the priest's testimony and the judge's aggressive questioning, Sentemir refused to admit any wrongdoing. Finally, in order to clear himself, Sentemir offered to undergo the ordeal of boiling water: 'As he persisted thus in his iniquity, he sought the iudicium Dei by cauldron... claiming that he would maintain himself healthy in it by some curses and incantations which he knew'.... 'But his incantation availed him nothing, and his hand suddenly appeared burned up. Revealed thus in his falsehood, by the order of the judge he confirmed a confession of how he had lawlessly and unjustly ordered his wife to burn the will'.
Well, there you are, Leeson might say, it worked! Except that the guilty man volunteered, thinking he would rig the ordeal, and failed. And the actual ordeal didn't work: no three days' wait, it is written up as if God actually had intervened then and there. Me, I can't help wondering with what insulating liquid Sentemir might have covered his arm that might have caught fire... but there's really no seeing further into this text than: they tried everything else first and then the ordeal went awry.
But wait, keen readers of Bowman's book may say, the ordeal was vanishingly rare in his area anyway, because they had a far stronger public system of justice with written evidence there. And, OK, fair enough; the case has only got this far because the written evidence is gone, after all. But in so-called 'feudal' France, too, where that rigidity of public justice is missing, we can find cases where it goes wrong, and a lot of those losses by default turn out be by the people who'd actually proposed the ordeal in the first place. In fact, cases where the ordeal was proposed but avoided are in the majority over cases where it was actually carried out. Proposing the ordeal turns out to be a frequent tactic in a wider strategy of delay, intransigence and contumacy. And the article from which I draw these conclusions, Stephen White's"Proposing the Ordeal and Avoiding It", seems almost to have anticipated Leeson's argument (almost as if it weren't new—who'd a thunk?):
... even if everyone involved in the disputing process firmly believed that trial by ordeal was a potentially legitimate and effective means of ascertaining God's judgement, no experienced participant in a lawsuit could have disentangled the process of predicting the legal outcome of a lawsuit in which an ordeal might be held from the process of assessing the political climate in which it would be proposed and possibly held.... He would have known that a unilateral ordeal could be rigged; that because its physical outcome might be open to conflicting interpretations, friendly judges were preferable to hostile ones; ... and finally, that even if he himself were fully prepared to act on the unshakeable conviction that trial by ordeal would actually lead to a just outcome, others, including his own supporters, might view it differently.
Really I could just quote that entire article, it's so interesting,3 but instead perhaps it's time to stop the demolition and ask how, instead, I would suggest we view the ordeal. There are four crucial points, I think, and I already started on them somewhere else this story was noted, but I'll do it properly now.
Medieval justice was not always about the right outcome. It was about peace. Unless the judiciary, of whatever sort it was, was strong enough to enforce a verdict punitively, a definitive judgement of right or wrong probably wouldn't end a dispute. After all, the guilty party had already proved disrespectful of the norms by which that verdict would be reached. Why would he abide by it? So instead, these cases were aiming to achieve a consensus and an agreement by which the dispute might stop, which usually meant compromise, however unpleasant or even unfair that might be.
The ordeal was only resorted to, therefore, when the processes that would normally achieve a settlement had failed, because of the obduracy of one or other party. It was never the regular process itself: it was a tiebreaker. (This is not to ignore that, as White points out in detail, that it was sometimes called upon or proposed only as a threat or stratagem to bring about a compromise in one of these difficult situations.)
It is not something any litigant can have faced with equanimity, because no-one could have been certain how it would come out. They might be convinced that they were in the right (or that this special tar I've got will keep my arm from broiling haha, hey, crap, those flames are a bit high, oops! OW OW OW OW OKAY okay, I admit I burnt the bloody will can I get some help please?, or similar) but given that anyone might read the outcome differently and pressure others to do so, it would always be risky. Very many ordeal cases, like Sentemir's but also others, do not go as anyone planned.
Therefore, introducing a chancy element like this was either part of a wider strategy in which actually taking the ordeal wasn't part of the final plan, or else it was the resort, as White puts it, of the supremely over-confident, the incomprehensibly wily or the desperate. It tipped the balances, refocussed the question onto a single issue and made everyone reconsider what they were doing. But it didn't promise a just settlement.
What we nudge towards here, then, is a situation where Leeson is right, but for the wrong reasons: the ordeal did work to help bring about justice, or at least peace. But it very rarely did this by its actual outcome, and where it did, it was only one of a number of factors, all of which the medieval people concerned, like the supposed rational actors of today, were doing their best to game and win through, but without any certainty that they had the situation under control or even a full understanding of it. They schemed, plotted, grandstanded and pleaded, and quite often they judged wrong and lost. In this fallibility, I'd hazard, they resemble the supposed rational actors of today a lot more than Leeson's rigid belief systems and unconvincing anthropological parallels actually admit.
1. The standard work on the subject is Robert Bartlett, Trial by Fire and Water: the medieval judicial ordeal (Oxford 1986), which has received some criticism in subsequent years for over-systematising the resort to the ideal, and may well therefore be where Leeson has his ideas from, but it's still a comprehensive survey of the practice and its change over time.
2. Jeffrey Bowman, Shifting Landmarks: property, proof and dispute in Catalonia around the year 1000, Conjunctions of Religion & Power in the Medieval Past (Ithaca 2004), pp. 119-140, quotes from pp. 122-123.
3. Stephen D. White,"Proposing the Ordeal and Avoiding It: strategy and power in Western French litigation, 1050-1110" in Thomas N. Bisson (ed.), Cultures of Power: lordship, states and process in twelfth-century Europe (Philadelphia 1995), pp. 89-123, repr. in White, Feuding and Peace-Making in Eleventh Century France, Variorum Collected Studies 817 (Aldershot 2005), VII. White's article is in many places addressed to Bartlett and should be read as a counterbalance to his book if you get any further into this.