Honesty, Guilt, and Innocence

Tests of various sorts have always been used to help decide law cases, especially in the absence of more direct forms of evidence such as the testimony of unbiased eyewitnesses. Perhaps the simplest test in judicial procedures is the testimony of biased noneyewitnesses, or compurgation. Compurgators were character witnesses who swore not to the facts of the case but to the integrity of the person they supported, who was usually their kinsman.^[16] The number of supporters varied with the nature of the crime and the circumstances. In medieval Wales, a woman accused of infidelity could disprove the charge with seven compurgators, but fourteen were necessary to answer a second charge, and a third charge would be dismissed only on the oaths of fifty.^[17] To rebut a charge of murder by savage violence or poisoning, Welsh law demanded no less than 600 compurgators.^[18]

Compurgation qualifies as a test by our definition, in that it is an intentional and indirect effort by an organization (in this case, a court) to gain knowledge about an individual. It is not a very complex or instructive sort of test, however, because the gap between the information derived from the test and the target information is narrow indeed. For the Welshman accused of

murder by savage violence, for example, it is merely the difference between 600 of his relatives swearing that he would not do such a thing and the court's judgment that he did not do it. From our perspective, medieval legal tests become much more interesting when they move from seeking evidence from human witnesses to soliciting it from God. Divine judgment was sought primarily through trial by battle and by ordeal. As with compurgation—perhaps even more so—battle and ordeal were intended to be used only when more direct forms of evidence were lacking. In thirteenth-century Catalonia, for example, "if the accuser can prove his charge through authentic charters or through trustworthy witness, then that proof should be admitted and battle should not be adjudged . . . [for] men may have recourse to the judgment of God only when human proof fails."^[19] And the twelfth-century charter of Tournai specifies that an assault to which there are witnesses will be judged according to the accounts of the witnesses. If there are no witnesses and the assault occurred during the day, the accused may clear himself by a "sevenfold compurgation," but if it occurred at night without witnesses, the trial is to be by ordeal.^[20] As Bartlett explains, "In the case of an attack in the dark with no witnesses, there really might be the temptation to wonder who could know the truth of the matter. The ordeal offered a solution at just this point. God knew the truth—and could be asked."^[21] But since God could not be expected to answer in plain language, the question was posed by orchestrating a situation in which the either/or outcome could be read as a message from God.

Trial by Battle

Framing the test in the form of trial by battle (also known as the wager of battle) amounts to letting rival claimants fight, with the assumption that victory represents God's judgment in favor of the combatant who is in the right. The main biblical precedent is found in the story of David, the shepherd boy who challenged the huge, well-armed, and battle-experienced Philistine champion Goliath in full confidence that, with God's help, he would prevail.^[22]

Trial by battle was widespread in the early Christian era in Europe. In Ireland, "so general was it, indeed, that St. Patrick, in a council held in 456, was obliged to forbid his clergy from appealing to the sword, under a threat of expulsion from the church."^[23] "No legal procedure was more closely connected with feudalism, or embodied its spirit more thoroughly than the wager of battle."^[24] By the thirteenth century, however, French kings were attempting to abolish it as they strove to centralize power in their own hands and courts, while nobles clamored to retain it as a means of maintaining their privileges and independence vis-à-vis the crown.^[25] Eventually, the monarchy prevailed and the wager of battle dwindled, at different rates in different places, until by the fifteenth century, it was an oddity.^[26]

English law adopted trial by battle late (it was introduced by William the Conqueror) and was also late in abolishing it. One of the more common circumstances in which it might occur was in connection with the "appeal of death." This provision of English law held that within a year and a day after an individual had been acquitted of murder in a jury trial, the widow or next of kin of the deceased individual might demand a second trial. As a private suit, this second trial normally took the form of trial by battle. In 1774, an effort was made in the House of Commons to terminate the right of appeal of death in the colony of Massachusetts Bay (as part of a bill to punish rebellious colonists for the Boston Tea Party). This occasioned considerable protest that the erosion of fundamental rights, beginning in America, might soon come home to England itself, and the offending provision was struck before the bill could be passed. In 1818, more than two and a half centuries after trial by battle had ended in France, an Englishman named Thornton was acquitted of murdering a girl. Her brother claimed the appeal of death, and Thornton maintained his innocence and readiness to prove it by combat. The court certified the validity of the proceedings, and a trial by battle was scheduled. A crowd gathered, and the duel was precluded only by the failure of Thornton's challenger to show up. It was only the following year, 1819, that the right of appeal of death was finally abolished in England, and it may have been abolished as late as 1837 in South Carolina.^[27]

When in full flower, wager by battle spilled well beyond combat between the principals to a controversy. It was common for a suitor to accuse one of the witnesses against him of perjury and demand to have the truth of the matter revealed by battle between them. In thirteenth-century England, a litigant might even challenge his own witness to battle if the latter's testimony was not to his liking. And in both English and French courts of that time, the loser of the case might appeal the verdict by challenging the judge.^[28]

It was generally considered inappropriate for women, the physically disabled, and ecclesiastics to engage in combat personally, so they were usually represented in trial by battle by champions. For example,

When Gundeberga, the Frankish wife of the Lombard king Charoald (626–636), was accused of treason, a deputation from her relatives suggested, "Order the man who brought this charge to arm himself and let another man of Queen Gundeberga's party proceed to single combat with him. By the conflict of these two the judgement of God will be made known, whether Gundeberga is innocent or guilty of this charge."^[29]

Although in principle they should be represented by champions, in actuality, priests and monks were not always of pacific personality, and many accounts tell of churchmen avidly pursuing their interests by means of the wager of battle.^[30] Women too might occasionally represent themselves in combat. German law lay down certain procedures to be followed when a woman faced a male opponent:

The chances between such unequal adversaries were adjusted by burying the man to his waist, tying his left hand behind his back, and arming him only with a mace, while his fair opponent had the free use of her limbs and was provided with a heavy stone securely fastened in a piece of stuff.^[31]

One might puzzle over such niceties. After all, David's encounter with Goliath proved that the support of the Lord is sufficient to

overcome any disadvantage. Nevertheless, the men of the Middle Ages went to great lengths to ensure that when they placed their fate in God's hands, the odds as calculated in this world were not against them. Doubtless this was because the logic of trial by battle did not conform fully to the precedent of David and Goliath, where the human odds were so heavily on one side that divine intervention was credible only if it favored the other. One could scarcely attribute a victory by Goliath, that is to say, to an act of God. Trial by battle, however, aimed to create a circumstance rather like casting lots (a procedure that was also used in medieval trials and disputes), wherein the odds were so even that no human prediction of the outcome was possible. Then the result, regardless of the side it favored, could be attributed to God's intervention.^[32]

Thirteenth-century English law made fine distinctions as to what disabilities would excuse an individual from trial by battle. The loss of molar teeth was not adequate for disqualification but the lack of incisors was, for the latter were held to be important weapons.^[33] If the adversaries were unevenly matched, measures might be taken prior to the battle to equalize them. "Thus the knight who demanded that his antagonist should undergo the destruction of an eye to equalize the loss of his own . . . was strictly within the privileges accorded him by law."^[34]

These refinements make Welsh rules pertaining to twins appear all the more remarkable. Under Welsh law, twins were considered to be a single person; they received, for example, but a single share of the family inheritance. But the legal status that spelled disadvantage in one arena worked an advantage in another, for if a twin became involved in wager by battle, he and his brother would take the field as one man.^[35]

The scruples about equal odds operated only between social equals; when adversaries of different rank met in trial by battle, it was often a different story. If noble met commoner in judicial combat in France, the noble might enjoy the right of fighting on horseback with knightly weapons while the commoner would meet him on foot, armed with shield and staff. Such would be the case, at any rate, if the commoner had the audacity to be the challenger; if the noble condescended to challenge the commoner

they would meet on equal terms.^[36] While interclass duels did occur on occasion, for the most part, the wager of battle was very much the province of the aristocracy. In thirteenth-century Germany, a superior need not deign to fight anyone below his social station. A Jew could not decline the challenge of a Christian, but presumably the Christian was immune from challenge by a Jew.^[37] More fundamentally, in a sharply stratified social system consisting of an armed nobility and an unarmed peasantry, the lower stratum of society lacked the training and, it was doubtless thought, the fineness of mind and sense of honor to engage meaningfully in the wager of battle. Another sort of test was deemed to be more appropriate to judicial needs pertaining to the lower classes: the ordeal.^[38]

Trial by Ordeal

Ordeals of various forms are found all over the world. In medieval Europe, the three most popular were the ordeals of hot and cold water and of hot iron. The oldest of these—of Frankish origin and the only form to be mentioned from the earliest reference to trial by ordeal in about A.D. 500 until about 800—is hot water. The procedure required that the individual reach into a boiling caldron to retrieve some object, normally a ring or a stone.^[39] During the reign of Charlemagne, 768–814, several other forms of ordeal came into being, and for the next four centuries, ordeal was a major judicial instrument. The ordeal of cold water called for the individual to be cast into a stream or pond. The ordeal of hot iron initially required the person to walk over nine red-hot plowshares; somewhat later, carrying a red-hot iron for three paces increased in popularity.^[40]

As with trial by battle, the ordeal was a test that established conditions where, in the absence of witnesses or other sufficient human evidence, the decision of innocence or guilt was referred to God. In the case of cold water, God would signify his judgment by causing the innocent to sink and the guilty to float. This was thought to be so because water, a pure substance, rejects evil. Hincmar, Archbishop of Rheims (845–882) and major advocate for the ordeal, explained that the guilty party "is unable to sink into the waters over which the voice of the majesty of the Lord has

thundered, because the pure nature of water does not receive a human nature which has been cleansed of all deceit by the water of baptism but has subsequently been reinfected by lies."^[41] In the ordeals of hot water and hot iron, the innocent emerge unharmed, while the guilty suffer grievously. The rationale for this is, variously, that with the help of God, Shadrach, Meshach, and Abed'nego walked unscathed through Nebuchadnezzar's fiery furnace,^[42] that the burning bush through which God communicated with Moses was not consumed by the flames,^[43] that Lot was not harmed by the fire that destroyed Sodom,^[44] that the faithful will not be harmed by the flames on judgment day, and that fire seeks and burns out wickedness, to which it has a natural antipathy.^[45]

Precisely what qualified as not being harmed by the hot water or hot iron is not, however, entirely clear. The suspect's hand was bandaged after carrying the hot iron and was inspected three days later. Bartlett states that if the hand "was 'clean'—that is, healing without suppuration or discoloration—he was innocent or vindicated; if the wound was unclean, he was guilty."^[46] This is a clear indication that the innocent were anticipated to be burned. On the very next page, however, he refers to expectations that innocent suspects would not be burned at all by hot iron or hot water. Perhaps these matters varied with time and place and with the prejudices of those who officiated at the ordeal.

Most important, ordeals by their very design traded in miracles, and miracles tend to become increasingly miraculous with time and retelling. Hence the most memorable accounts of ordeals seldom concern themselves with nuances in how well a wound is healing. A favorite motif is the queen who, accused of adultery, vindicates herself by the ordeal. A prototype is the case of the barren Queen Teutberga of Lotharingia. In 858, King Lothar, her husband, wished to marry his mistress and legitimize their children in order to have an heir to his throne, so he accused Teutberga of a variety of sexual crimes. Her innocence was proven by the ordeal of hot water, undergone on her behalf, however, by one of her retainers.^[47] The embellishment of the theme is apparent in the

account of the ordeal undergone by Queen Emma, Edward the Confessor's mother, [which] is certainly fictional. . . . Emma was

accused by the villain of the piece, Robert of Jumieges, the Norman archbishop of Canterbury, of adultery with a bishop (a not uncommon conjunction). The queen offered to undergo the ordeal of hot iron; Robert of Jumieges unwillingly agreed, but only if he could specify particularly rigorous conditions: "let the illfamed woman walk nine paces, with bare feet, on nine red-hot ploughshares—four to clear herself, five to clear the bishop. If she falters, if she does not press one of the ploughshares fully with her feet, if she is harmed the one least bit, then let her be judged a fornicator." The queen, resting her hopes on her innocence and on the help of St Swithun, walked over the ploughshares "and did not see the fire nor feel the burning." In gratitude she gave to St Swithun nine manors, one for each ploughshare, and the bishop accused with her did likewise.^[48]

Events that brought down the guilty were no less miraculous than those that uplifted the innocent. Brother France Maria Guazzo recounts the sad tale of a man convicted of heresy by the ordeal of hot iron in Strasbourg. While he was being conveyed to the stake to be executed, he was exhorted to confess his sin and repent, so that he might not suffer the eternal fire of Gehenna. He did so, and immediately his hand was healed. When the judge presiding at the execution saw no trace of a burn on the hand, he concluded that the man must be innocent and released him. Then the complications began:

This man had a wife not far from the city, who had heard nothing of what we have just told. When he came to her rejoicing, and saying: "Blessed be God, who has today delivered me from the death of my body and my soul!" and told her how it had been, she answered: "What have you done, most unhappy one, what have you done? Have you recanted your true and holy faith because of a moment's pain? It would have been better for you if your body could have been burned a hundred times, than that you should once draw back from the true faith." Alas! who is not seduced by the voice of the serpent? Forgetting the great goodness of God to him, forgetting that undoubted miracle, he listened to his wife's advice and again embraced his former heresy. But God did not forget to avenge Himself for so great ingratitude, and wounded the hand of each of them. The burn re-appeared upon the heretic's

hand, and since his wife was the cause of his returning to his error she was made a partaker in the backslider's pain. The burn was so severe that it penetrated to the bones of their hands: and because they dared not in the town give vent to the cries which the pain wrung from them, they fled to a neighbouring wood where they howled like wolves. What need I say more? They were taken and led back to the city and together cast upon the fire which was not yet quite extinguished, and were burned to ashes. What, I ask, is the truth of the matter? Does the flame follow heresy, even as a shadow follows the body?^[49]

Although, in general, the ordeal was considered to be appropriate to lower classes while the nobility had more frequent recourse to compurgation and trial by battle, certain rank and other distinctions may also be drawn between types of ordeals. If a person of quality was to be tried by ordeal, hot iron was the means of choice, hot water and cold water being suitable for plebeians.^[50] Another distinction, this time between hot iron and cold water, had to do with speed of result. Trial by hot iron demanded a three-day waiting period before the verdict could be determined by the condition of the bandaged hand, while the result of the cold water ordeal was immediate: the individual either sank or floated. There was, therefore,

no neutral period of waiting in which crowds would disperse and emotions calm, and the cold water trial of heretics was thus particularly susceptible to crowd influence and mob justice. At Soissons in 1114, for instance, the condemned heretics were lynched by the crowd while the bishop's court was still discussing the sentence.^[51]

One might be tempted to imagine that trial by ordeal waned as the European mind lost its confidence in miracles in the face of advancing rationalism and naturalism. Such, however, was far from the case. The heyday of the ordeal came to a close in the twelfth century, long before such new modes of thinking had taken root.^[52] Ordeal was done in not by protoscientists who doubted miracles but by scholastic theologians who accepted them implicitly. Their main argument (which applied to trial by

battle as well as to trial by ordeal) was that these techniques tempted God. They set up situations that invited—even presumed to guarantee—a miracle to be performed by God in the interest of justice. But, the scholastics argued, a miracle is a free act of God; it may or may not occur for God's own good reasons. Therefore, ordeal and combat are unreliable as judicial tests, and those who promote them are impious in their belief that human connivances can force the hand of God. Such arguments had been advanced, even by popes, as early as the ninth century. However, they had effect only as the centralized church grew in power and influence. By the early thirteenth century, that process had reached the point that an official condemnation of trial by ordeal by the Lateran Council of 1215, under the papacy of Innocent III, was sufficient to bring the practice essentially to an end.^[53]

Tests of Witches

Well after its suppression in the thirteenth century, trial by ordeal reemerged in the great persecutions of witches in the fifteenth, sixteenth, and seventeenth centuries. In many ways, witchcraft was the ideal crime for detection by ordeal: its secrecy made more empirical forms of evidence hard to come by, while its alliance with the devil made it particularly loathsome to everything pure and to God, who might therefore be expected to be more than a little willing to signal the truth through the outcome of the ordeal. In 1594, Jacob Rickius, a judge from Bonn, addressed the problems of evidence in witchcraft trials and the importance of the ordeal. He wrote to the effect that

the offense is so difficult of proof that there is no other certain evidence than the ordeal; that without it we should be destitute of absolute proof, which would be an admission of the superiority of the Devil over God, and that anything would be preferable to such a conclusion.^[54]

The most popular ordeal for witches in this period was cold water, in the procedure known as "swimming a witch" (fig. 1). As the famous witch-hunter, Matthew Hopkins, practiced it in sev-

Figure 1.
The witch swims! Illustration from
Montague Summers's The Discovery
of Witches: A Study of Master Mat-
thew Hopkins. Commonly Call'd
Witch Finder Generall . Published
by Cayme Press, London, 1928.

enteenth-century England, the suspect would be tied, right thumb to left big toe and left thumb to right big toe, and then lowered into the water by means of a rope tied around the waist. The test was repeated three times, and if the individual floated, it was proof of witchcraft.^[55] Rationales offered for swimming witches in this period stressed the witch's satanic connections. For example,

In 1583, a certain Scribonius, on a visit to Lemgow [Lemgo, in northern Germany], saw three unfortunates burnt as witches, and three other women, the same day, exposed to the ordeal on the accusation of those executed. He describes them as stripped naked, hands and feet bound together, right to left, and then cast upon the river, where they floated like logs of wood. Profoundly impressed with the miracle, in a letter to the magistrates of Lemgow he ex-

presses his warm approbation of the proceeding, and endeavors to explain its rationale, and to defend it against unbelievers. Sorcerers, from their intercourse with Satan, partake of his nature; he resides within them, and their human attributes become altered to his; he is an imponderable spirit of air, and therefore they likewise become lighter than water.^[56]

Curiously, in southwest Germany of the 1640s, the contrary notion, that the innocent would float and the guilty sink, prevailed. Before using it in earnest, the Bavarian army resolved to test the test and so offered twelve thalers to any innocent citizen who would volunteer to undergo it. A man came forward and validated the test by floating on three trials. Then the army swam a number of suspected witches (soldiers' wives, for the most part) and executed several of those who sank.^[57]

Swimming witches in the sixteenth and seventeenth centuries never commanded the official legitimacy that the ordeal had enjoyed during the medieval period. It was done primarily by peasants and viewed scornfully by the educated elite.^[58] Even some of the most ardent witch-hunters viewed the ordeal with skepticism. Dominicans Kraemer and Sprenger, authors of the famous fifteenth-century manual on witchcraft, Malleus Maleficarum , surmised that witches might come through the ordeal of hot iron unscathed because the devil would intervene to protect them. They even opined that persons who offered to undergo trial by ordeal should for that very reason be suspected all the more of being witches.^[59]

Another test for witches was to search for certain telltale marks on their bodies, which might have been placed there by the devil during their initiation ceremony.^[60] They were often red or blue in color and might take the form of the footprint of a hare, toad, dog, spider, and so on. A distinctive feature of devil's marks was that they do not bleed and are impervious to pain. Witch-hunters would arm themselves with long needles for pricking suspicious marks to determine if they could draw forth blood or a reaction of pain.^[61]

Other bodily features such as warts, boils, and even hemorrhoids or the clitoris were sometimes identified as special marks

of the devil. These were taken to be teats at which the devil himself or imps would suck blood from the witch. (Imps were spirit familiars that the witch would send out to do mischief.) Such teats tended to be found on the eyelids, armpits, lips, shoulder, or posterior of men and on the breasts or genitals of women. The bodies of suspects were minutely examined for these unnatural teats, and candidate growths were probed and jabbed with needles to ascertain if they would bleed or produce pain.^[62] John Taylor reports how in colonial America the body of executed witch Goodwife Knapp was examined for devil's marks after it was taken down from the scaffold.^[63] An argument broke out among several women concerning whether certain appendages (of the genitals, certainly) were witches' teats. One of the women claimed that they were not, on the grounds that she had them herself. The other women rebuked her, and (perhaps realizing the possible consequences of what she had been saying) she finally yielded.^[64]

Goodwife Knapp was but one of many suspected witches subjected to postmortem examinations. Although this seems not to have been the case in the West, some cultures contain the belief that individuals might be witches without being aware of it. The sure test to identify them is autopsy. Among the Azande of the Sudan, after death, the intestines of a suspected witch would be removed and carefully examined for witchcraft substance: a blackish, oval swelling. If found, that constituted proof that the deceased was indeed a witch.^[65] The Kaluli of Papua New Guinea believe that virtually all deaths are caused by witchcraft. In vengeance, an individual suspected of being the witch responsible for a death might be killed in a surprise nocturnal raid on his longhouse. The body would be dragged outside, opened, and an individual holding a position neutral between the relatives of the suspected witch and his killers would examine the condition of the heart. If it was firm and dark in color, the individual was not a witch, but a yellowish heart soft in texture identified the person as a witch.^[66] These testing procedures by autopsy have a number of factors in common with trial by ordeal. They share the assumption that a determinate, either/or condition actually exists: the individual in question either is or is not a witch. In each case, the avowed purpose of the test is to ascertain the true answer to

that question. A test, with its indirect or representational mode of knowing, is necessary because direct knowledge of the matter is impossible. In the European case, this stems from the inability to look at the contents of people's hearts (figuratively speaking) and minds, while for the Kaluli, a test is required because one cannot look at the hearts (literally speaking) of the living. One procedural difference is whether the victim is killed before the test (as the Kaluli do) or after it (the European way).

Torture

After the suppression of trial by ordeal in the thirteenth century, torture became an important means of determining innocence or guilt in European courts.^[67] As with ordeal and combat, torture was used particularly for those "invisible" crimes for which witnesses or other tangible evidence tended to be lacking: adultery, heresy, witchcraft, and so on.^[68] Torture, however, relied for its result directly on the suspect rather than on asking God to produce a miracle. It was applied with great alacrity in the persecution of witches during the fifteenth, sixteenth, and seventeenth centuries. For one thing, it was believed that witches could be induced to remove their spells by beating or working other violence on them. It was necessary to pursue this tactic with diligence, however, because a witch would probably persist in the denial of being the author of the spell in question. If one hurt them badly enough, they would usually confess and undo their mischief.^[69]

Torture was also used as a means of releasing the witch from bondage to the devil. The limitations that normally constrained torture were often disregarded in the case of suspected witches because the devil was believed either to prevent the witch from feeling the pain or at least to encourage the witch to endure it. The ultimate breakdown and confession was conceived as the witch being finally wrenched from the power of the devil and liberated to speak the truth.^[70]

It was an impossible situation for the victim, who was considered either to be an unrepentant witch, in which case torture continued and intensified, or a penitent witch, in which case

execution followed shortly. Johannes Junius, burgomaster of Bamberg, was caught in this snare in 1628:

Junius had been accused of witchcraft and tortured until he confessed. His letter, written in a hand shaky from his sufferings, and smuggled from prison to his daughter, begins, "Many hundred thousand good nights, dearly beloved daughter Veronica. Innocent have I come into prison, innocent have I been tortured, innocent must I die. For whoever comes into the witch prison must become a witch or else be tortured until he invents something out of his head."^[71]

Many people of the time were blinded to such (to us) obvious injustice by the conviction that confession was a blessed victory for everyone concerned, including the witch, because the grip of the Evil One on a human soul had been broken. As Guazzo put it, rapturously,

The Divine Shepherd in His unspeakable mercy and loving kindness again and again recalls to the fold His sheep that have been carried away by the wolf and again He feeds them in the celestial pastures; and so when witches have been cast into prison and have confessed their sins, not grudgingly and under the stress of torture, but willingly and with penitential joy, it may well be said that they obtain the opportunity to avert so great and eternal a calamity from themselves at the small expense of their most wretched lives.^[72]

Torture differs from ordeal because, as a direct means of wringing confession out of a suffering prisoner, torture is not a test. Probably many pitiable souls, quailing before the impending agony of the boiling caldron or the hot iron, were also moved to confess. But such fear was in principle only a by-product of the ordeal; the expectation was that the possibility of pain should be a matter of no consequence to the faithful. The point of the ordeal was to read the ability of the suspect to go through with it, or the condition of wounds resulting from it, as a sign of something else: God's pronouncement of the individual's innocence or guilt. Ordeal was in that sense an indirect means of acquiring knowledge,

and thus it satisfies one of the defining features of a test. Torture, however, applied pain not as an appeal to God or in quest of a sign of anything. It was simply a technique of raising the stakes to the point that suspects—particularly slaves and lower-class people, whose word was not considered to be very reliable—would finally abandon their lies and reveal the truth. Therefore, torture is no test because, for all its paraphernalia and horror, it is merely a form of the direct means of gaining information by getting someone who knows to reveal it.