Medieval Justice: Cases and Laws in France, England, and Germany, 500-1500 PDF

# Medieval Justice ## Interesting...good reading...lively discussion" - *Mediaevistik* This book is a primer on medieval justice, focusing on France, Germany, and England. It covers the thousand years between the transformation of the Roman world in Western Europe, which took place around the 4th a...

# Medieval Justice ## Interesting...good reading...lively discussion" - *Mediaevistik* This book is a primer on medieval justice, focusing on France, Germany, and England. It covers the thousand years between the transformation of the Roman world in Western Europe, which took place around the 4th and 5th centuries, and the European Renaissance of the 14th and 15th centuries. The book highlights key elements in the intricate, overlapping legal systems of the Middle Ages and describes a wide range of contemporary laws and cases. This book also includes: - A discussion of the modern legacies of medieval law - A brief overview of the Inquisition - The 27 articles of Joan of Arc - Useful commentary on many other topics It features illustrations that range from the earliest known depictions of English courts to illuminations of torture and pictures of important sites, events, and instruments of punishment in medieval law. ## Hunt Janin Hunt Janin is an American writer living in rural southwestern France. He has written numerous nonfiction and scholarly books on a range of subjects, including medieval history and cross-cultural studies. ## Justice in the Early Middle Ages ### The Coming of the Barbarians The influx of German tribesmen into Western Europe used to be known as the barbarian invasions. The Romans used the term "barbarian" to mean someone who did not speak Latin. This process is now seen as a series of Germanic migrations, probably given impetus by the expansion of the Huns from their own homelands north of the Black Sea. The barbarians turned out to be a mixed blessing for the Romans. Rome often hired them as "federates" (auxiliary troops) to help preserve the integrity of the empire, but at other times, the Romans had to fight them. In these latter campaigns, Roman soldiers managed to win some considerable victories. But the Roman Empire itself was rotten to the core and in the long run it could not hold out against the barbarians. Thus it was that in 476, the barbarian Odoacer, who had risen to be the Roman army's _magister militum_ ("master of the soldiers," i.e., the senior officer of the imperial guard), deposed the 16-year-old Romulus Augustulus, the last Roman emperor, and had himself proclaimed king. ### Barbarian Law: The Role of Custom As they came to power the barbarians set up kingdoms of their own. The Visigoths controlled Gaul as far north as the Loire River. They ruled in Spain as well. Further north, the Alemanni and the Salian Franks held power. North Africa was in the hands of the Vandals. But barbarian rulers and their followers constituted only a small minority in the new kingdoms and retained their own tribal laws. The first compilation of these laws were the _Leges Barbarorum_ (Barbarian Laws), which were written in Latin and used some of the technical terms of Roman law. They date from the fifth to the ninth centuries. Barbarian law was based on very different legal premises from those used today. Among them were: - The veneration accorded to tribal customs - Reliance on "personal" law, which resulted in conflicting legal jurisdictions - _Wergeld_ (monetary payments to redress wrongs) - Certain unique ways of proving the guilt or innocence of an accused person. These methods of proof included: - _Compurgation_ (oath swearing) - _Ordeals_ ( by hot water, by hot iron, or by cold water) - _Trial by battle_ Barbarian law was usually not handed down from the king but arose from the customs of a given tribe. The _Leges Barbarorum_, for example, drew heavily on local customs. In about 630 this was underscored by Isidore of Seville, whose _Etymologies_ became one of the most-studied works of the Middle Ages. "The legal system," he wrote, "is based on law and on custom. The difference between them is that the law is written. Custom, on the contrary, is legitimized by its antiquity. It is an unwritten law." The importance of the oral transmission of the law in the early Middle Ages can hardly be overemphasized. To use an apt phrase coined by modern French scholars, the written word was then only "an islet lost in a sea of orality." ### The Survival of Roman Law Even after the disappearance of Roman political authority in the west, however, there was no decline and fall of Roman law itself. Instead, there was a gradual process of integration and adaptation of this law throughout the Middle Ages. Thus Roman law never vanished entirely. The _Codex Theodosianus_ (Theodosian Code), for example, had been compiled in Latin in 438. Abridgements were made of it in the early Middle Ages, e.g., the _Lex Romana Visigothorum_ (Roman Law of the Visigoths) of 506 and the _Brevarium_ (Breviary) of Visigothic King Alaric II of 507. Through these versions, Roman law remained in use in Western Europe until the eleventh century. ### Personal Law and Conflicting Legal Jurisdictions The barbarians permitted their subjects to continue to live under Roman law. So, even though these two groups might live cheek by jowl in the same region, they were subject to different laws. The barbarians had tribal law; their subjects had Roman law. This unusual situation came about because customary barbarian law was personal law, that is, it was conceived of as residing in the individual, not in the territory where he or she happened to live. The Germanic conquerors themselves could therefore "profess" Gothic, Frankish, Lombard or some other kind of barbarian law, according to their tribal affiliations. Their subjects and the clergy, on the other hand, could profess Roman law, albeit in a "vulgar" (simplified) form. ## Wergeld Under barbarian law, criminal offenses were seen as wrongs against individuals and their families, not as wrongs against society as a whole. As a result, amends could be made in cash or in goods. Each man or woman had his or her own monetary value, known as _wergeld_ ("man-price" in Old English). Payments reflected the magnitude of a crime. Minor offenses could be rectified by a small payment. If a man were murdered, however, the murderer and his kin had to pay a high price to the family of the victim-200 solidi in the case of a free Anglo-Saxon or a free Frank. Such payments, however, may have been intended merely as starting points in negotiations, rather than as the amounts which actually had to be paid. There were other fines as well. The _bot_ was compensation for damages done to, and allowances for the repair of, a house or tools. The _wite_ was a fine paid to the king by a criminal, to atone for his act. The kin-group was responsible for bringing to justice anyone who had wronged a member of the kin. In extreme cases this could result in a "blood feud," i.e., a continuing state of conflict marked by killings and counterkillings. During such a feud, the kin-group could legally kill anyone who murdered one of its members. Though rare, this practice was accepted by Anglo-Saxon society because without such a lethal threat there was no other way to force a guilty person to submit to the legal process. Social rank, gender and whether a person was free or not free were extremely important in determining wergeld. A lord's wergeld was much higher than that of a common man. Clergy had their own rate of wergeld, which was a function of the social class into which they had been born. Royal directives governing wergeld were firm and very specific. ## The Ordeals: Proving Innocence or Guilt The Roman form of legal proceedings, known as the _cognitio extraordinaria_ ("extraordinary jurisdiction"), had relied on both oral and written testimony. It required stringent rules of evidence and proof. It gave significant investigative or "inquisitorial" powers to the judge. Under Roman law, the burden of proof was usually on the accuser. As the emperor Justinian's legal code put it in 533, "the burden of proof is upon the party affirming, not on the party denying." It was thus up to the accuser to find credible witnesses who would support his allegations. With the eclipse of Roman power in the West, the _cognitio extraordinaria_ was abandoned. The Germanic tribes preferred their own traditional methods of proof. Under barbarian law, the accuser had to provide some kind of initial proof of the validity of his charges but, ultimately, the burden of proof could fall heavily on the defendant, who might have to submit to an ordeal to establish his innocence or his guilt. Ordeals are now referred to as "irrational proofs" because their verdicts were believed to reflect the will of God, not rational compliance with man-made norms. The ordeal was based entirely on theology. According to the thinking of the times, men did not judge other men by means of the ordeal: they simply relied on the will of God as revealed through it. By invoking divine blessings on the ordeal before it began, priests played a critically important role. When, therefore, in 1215 the Fourth Lateran Council, which will be discussed later, banned priests from participating in the ordeal, this removed its religious foundations and legally brought it to an end. By the ninth century, much of Western Europe was divided into _pagi_ (the pagus was a small administrative unit about the size of an English county), each governed by a count. As the king's representative, the count presided over the local court, which adjudicated disputes between freemen. It was the men who "owed suit" or "performed suit"- -that is, the men who had a duty of regular attendance at the court - who determined which procedure the court should follow and what kind of proof it should demand. ### Compurgation This was the most common method of proof in the early Middle Ages. The parties involved had to swear on oath - several times - and deny that the charges which had been brought had any validity. The defendants swore: "By the Lord, I am guiltless both of deed and instigation of the crime with which [the plaintiff] charges me." In addition, they or the court itself would enlist a number of _compurgators_ (oath helpers) who would take oaths, too, to demonstrate that they believed these denials. Their oath was: "By the Lord, the oath is pure and not false that [the defendant] swore." ### Ordeals as a Last Resort As a general rule, the ordeals themselves were used only when there seemed to be no other way of determining a person's innocence or guilt. Thought to originally have been a custom of the Franks, they were widely used by other continental Germanic peoples after the year 500. They were invariably a means of last resort and were never called upon lightly or at random. A legal maxim in twelfth-century England held that "the ordeal of hot iron is not to be permitted except where the naked truth cannot otherwise be explored." A similar principle existed in thirteenth-century Germany: "It is not right to use the ordeal in any case, unless the truth may be known in no other way." #### Ordeal by Hot Water This proof was endorsed by, among other notables, archbishop Hincmar of Reims (806-882), one of the great canon lawyers, theologians and political experts of Carolingian times. He was a political consultant to both the Frankish kings Louis I the Pious and Charles the Bald. For Hincmar, the ordeal by hot water had two important qualities. Water represented the great flood of the Old Testament, which spared only the virtuous. The flames used to heat the water brought to his mind the Last Judgment, when the wicked would be condemned to the fires of hell. An early example of this ordeal was the state trial of Queen Teutberga of Lotharingia in 858, which involved both sex and politics in equal measure. The queen was barren. Her husband, King Lothar, wanted to get rid of her, marry his mistress, and legitimize the children he had by her. He therefore accused his wife of sexual misbehavior. She retaliated by ordering one of her retainers to undergo the ordeal by hot water on her behalf. This courageous, loyal individual passed the order successfully; the queen was declared innocent. As a result, Lothar's children remained illegitimate and could not inherit the throne upon his death. This is how the ordeal by hot water was conducted. On the day of the ordeal, a mass was celebrated. At the communion, the priest prayed that "this body and blood of Our Lord Jesus Christ to be to thee [the accused] this day a manifestation of guilt or innocence." Then a fire was kindled, and water - it was holy water now, because it had been blessed by the priest - was heated in a cauldron. For minor offenses, the "single" ordeal would suffice. This required the accused to thrust his hand into the water up to his wrist. He was then free to jerk it out again. Alternatively, he might be made to retrieve a ring or a stone from the bottom of the cauldron, an enterprise which took more time. Serious offenses called for the "triple" ordeal, which required the whole forearm to be plunged into the water up to the elbow. The hand and, if necessary, the forearm, too, would then be bandaged and sealed. If an inspection three days later showed that the injuries were healing well, the accused was pronounced innocent. If they were not, he was held to be guilty. Here is what the Anglo-Saxon king Athelstan (924-939) had to say about the ordeal by hot water: "And concerning the ordeal we enjoin by command of God, and of the archbishop and of all the bishops: let [the water] be heated till it low to boiling. And be the kettle of iron or brass, of lead or of clay. And if it be a single accusation, let the hand dive after the stone [to retrieve it] up to the wrist; and if it be threefold, up to the elbow..." #### Ordeal by Hot Iron This proof involved the same preparations and the same procedures as the ordeal by hot water: prayer and fasting, a mass, blessing, bandaging the injuries and, finally, inspecting them three days later. To quote Athelstan again: "Let the iron lie upon the hot embers till [the end of the Mass]; after that let it be laid upon the stapela [stake].... And let him [the accused] go thereto; and let his hand be enveloped, and be [opening it] postponed till after the third day, whether it be foul or clean within the envelope...." In other ordeals by hot iron, sometimes the accused was blindfolded and forced to walk over a path studded with six, nine or twelve red-hot plowshares. At other times, without a blindfold, a man or a woman (when her chastity was at issue) had to hold a red-hot iron, or carry it for a given distance, usually nine feet. In Anglo-Saxon England the "simple" ordeal by fire called for a one-pound chunk of iron. However, "three-fold" (serious) charges, such as plotting against the king's life, counterfeiting, murder, robbery, arson or felonies, were judged by use of a three-pound piece. #### Ordeal by Cold Water The theology behind this ordeal was that water was a pure element which, when blessed and therefore made holy, would refuse to accept a guilty person. In one version of this mode of proof, the accused was bound hand and foot and was then thrown into a body of water - often contained in a large pit dug expressly for this purpose - which had been duly blessed by a priest. If the water accepted the accused, i.e., if he sank, he was innocent. If the water rejected him, that is, if he floated, he was of course guilty. In another version of this ordeal, the accused, having been bound and foot, was slowly lowered into the water by means of a rope tied around the middle of his body. There was a knot in the rope, either tied close to his body ("a long hair's breadth" away) or some distance from it (about half a yard away). If he sank and pulled the knot down with him until it broke the surface of the water, he was innocent. If both he and the knot floated, however, this proved his guilt. ### Short-Circuiting the Ordeals Despite the severity of these ordeals, they were conducted in such a structured, methodical manner that there was plenty of time for second thoughts and out-of-court settlements. Many people in the pagus were related; all of them had friends or relatives who were interested in a given case. Some of these men and women must have put themselves forward as peacemakers. Clerics were involved, too: witness the exploits of St. Gregory, discussed at some length below. The ordeal came at the end of a legal process. Immediately before the ordeal itself, the accused had to spend three days in prayer and fasting, presumably getting in the process no end of well-meaning advice from other members of the pagus. Subjective factors played a large role. Even after the ordeal itself was over, there was still room for human intervention in what was in theory a direct, infallible appeal to the will of God. Take the ordeal by hot water, for example. As soon as the accused yanked his scalded hand or forearm out of the hot water, his injuries were bandaged with a cloth, which was then sealed with a judge's signet. Three days later, the cloth was removed. If the wound was found to be "clean," that is, healing well, the man was proclaimed innocent. If it was "unclean," i.e., discolored or suppurating, he was pronounced guilty. There were, however, no objective medical standards for what constituted healing or infection. A typical directive from the Middle Ages simply states that "if festering blood be found in the track of the iron, he shall be found guilty. But if, however, he shall go forth uninjured, praise shall be rendered to God." Another contemporary source claims that a blister "as large as half a walnut" was a fatal sign. It is thus a reasonable guess that the verdict of guilt or innocence was in large part subjective. Extraneous factors, such as politics or compassion, almost certainly played a role in the final judgment. A king, for example, could assure for political reasons that the outcome of an ordeal would be to his liking. In the thirteenth-century Saga of Saint Olaf, for example, a ship captain, Sigurth Thorlakson, is falsely accused by the king of a murder. The king orders Sigurth to undergo the ordeal of hot iron. Just before the trial, however, Sigurth tells his men, "This king is crafty and deceitful.... It will be very easy for him to falsify this ordeal. I would consider it dangerous to risk that with him." Deciding that prudence was the better part of valor, Sigurth and his men took advantage of a fair wind and set sail for the open sea. There may have been compassionate outcomes, too, although they have not been recorded because the purpose of the ordeal was to obtain God's judgment, not man's sympathy. It is easy to imagine, though, that if a sympathetic judge thought the accused was an honorable man who had already suffered enough during the ordeal, he might be set free. On the other hand, a man who already had a reputation in the pagus as a bad character might fare less well. As the eminent English jurist and legal historian Frederic William Maitland put it, "How these tests worked in practice we do not know. We seldom get stories about them save when, as now and again will happen, the local saint interferes and performs a miracle. We cannot but guess that it was well to be good friends with the priest when one went to the ordeal." ### Trial by Battle Also known as the judicial duel, this appeal to the will of God was a familiar custom to the continental Germanic peoples from about the year 500. Because physical strength, training and good luck played decisive roles here, this method of proof could not be short-circuited. A judicial battle could be fought between men on horseback or on foot, armed with either lethal or non-lethal weapons. Not everyone was permitted to engage in trial by combat. In 1140, Pope Innocent II ordered that ecclesiastics should not take part in such a duel. Serfs could not challenge freemen. The sick, e.g., lepers, could not challenge the healthy. Bastards could not challenge those who were legitimately born. Children were not allowed to fight. Women were normally excluded from trial by combat. Very rarely, however, a wife might be allowed to fight her husband, with rigorous conditions being imposed to make the duel a fair one. In 1228, a woman fought a man at Berne, Switzerland, and soundly defeated him. German law provided that in such a case the man should be armed with three wooden clubs. He was to put be up to his waist in a three-foot-wide hole dug in the ground, with one hand tied behind his back. The woman was to be armed with three rocks, each weighing between one and five pounds, and each one wrapped in cloth. The man could not leave his hole but the woman was free to run around the edge of the pit. If the man touched the edge of the pit with either his hand or his arm, he had to surrender one of his clubs to the judges. If the woman hit him with a rock while he was doing so, she forfeited one of her stones. Bizarre as it may seem to us today, this marital duel was very far from play-acting. For both parties, the penalty for defeat was death. If the woman won, the man was executed; if the man won, the woman was buried alive. Trial by battle was occasionally used even by monasteries to settle their differences. In 1287 the monks of Bury St. Edmund in England were embroiled in a dispute over the ownership of two manors in Suffolk. The monks came to the conclusion that they had such a weak case that trial by combat would be better than a jury trial. "After discussion of the case," they wrote, "since we were doubtful about the countryside, as friendly with and akin to our enemies, we decided that our right was to be defended by the duel." The outcome of this duel, if it ever took place, has not been recorded. ### Champions What happened when a person was challenged to trial by combat but was formally barred from accepting the challenge? In this case, a champion could be hired to do the fighting. In England, parties in non-criminal cases were not allowed to fight in person and were required to use champions. The plaintiff's champion was, ideally, a witness to the possession of the property under dispute, on which the plaintiff based his claim. For this reason, he could not be the plaintiff himself. The defendant's champion was by definition someone who believed that the plaintiff's accusations constituted perjury. Champions were often family members or freeman retainers, but gradually a class of professional "hired guns" came into being. These freelance champions sold their skills to the highest bidder. In 1017, for example, when the Holy Roman emperor Henry II wanted to find out which of two robbers who were awaiting trial in different German cities was guilty, he hired champions to fight judicial duels with them. If a champion was defeated in a trial by combat, he might be punished by the amputation of a hand or a foot, or even by hanging. Needless to say, this line of work did not attract the best and the brightest. Champions were not held in high esteem. In thirteenth-century France, they were ranked with prostitutes and petty criminals. Germany lumped them together with actors, jugglers and bastards as undesirables who were "unlaw-worthy" and who were not permitted to give evidence or inherit property. Italy suspected them of being ex-convicts or men of unsavory reputations. England even had a special category of champions known as "approvers." These were career criminals who had turned crown witness (state's evidence) in the hope of lessening their sentences. Seeking a full pardon, they had also agreed to challenge, for a relatively brief period of time, other felons to trial by battle. A contemporary case records that one Robert, son of Patrick, "was captured at Kidderminster fleeing in company with thieves he confessed that he is a thief... and he turns an approver to fight five battles." This procedure may have been an easy way to get rid of convicted criminals: Robert himself might have been killed in combat or he might have managed to kill some or all of the other felons. ### Failures to End the Judicial Duel Despite its apparent advantages, doubts persisted about the legitimacy of trial by battle. Liudprand, king of the Lombards from 713-744, wrote: "We are unsure about the judgment of God and have heard of many men who have lost their cause unjustly through trial by combat. Clerics were even more outspoken. Archbishop Agobard of Lyon was quoted earlier. He had something to say on this subject, too, being convinced that "the duel was opposed to Christian charity, to reason and to experience, which teaches us that the outcome of duels is often unjust and wrong, and which is confirmed by many examples from Holy Scripture showing that even the just man can be defeated in battle; finally, the duel was opposed to the nature of judgment, which consists in wise investigations, not brutal power." These early misgivings, however, failed to end the judicial duel. It continued to be used frequently throughout the thirteenth century to settle disputes. Medieval law books in England, France and Germany accepted it as a normal part of the legal process. It was used in Italy, Spain and Eastern Europe as well. During the fourteenth and fifteenth centuries, though, it fell out of favor. In 1455, Philip the Good, duke of Burgundy, went to watch a trial by battle in Valenciennes, attracted to the spectacle only because "such things do not happen often." The last judicial duel held in England occurred in 1492, at the end of the Middle Ages. Remarkably, trial by battle was not formally abolished in England until more than 300 years later-in 1819. ### Illustrative Cases and Laws #### A Werewolf Clause (C. 500) In European folklore, a werewolf was a man who turned into a wolf at night and ate animals, people or corpses, resuming his human form just before dawn. (Even in the sixteenth century, there were still executions in rural France of men convicted as being loups-garous, i.e., werewolves.) In the early sixth century, "werewolf" was used as a synonym for a thief in criminal law. The following excerpt comes from the Burgundian law code, compiled in about 500 and known as the _Lex Gundobada_. "If any man shall have been proved guilty of a murder and, after trial, shall be proved to have been a wolf...that is, he shall have killed an animal, or carried off a garment from a gallows or a man's body, or if he shall have slain a human being in the guise of a wolf...that is, he shall have been found guilty of murder in the guise of a wolf...he shall be punished by death." Although, as we mentioned earlier, men could not be tried by combat, there was one exception: a duel could be fought by two men who were both accused of murder in the guise of a wolf. The winner was considered innocent; the loser was executed. Trial by combat as a means of proving one's innocence or guilt eventually disappeared from Europe as trial by jury came into being. The transition was not easy, however. As late as the second half of the 1300s, the king of Scotland would sometimes offer suspects a choice: trial by combat on a field in front of the Court or trial by jury (an "assize"). Suspects usually preferred trial by jury. The French, however, stuck to the judicial duel for a longer period of time: it was not formally forbidden in France until the 18th century.