Oath Helpers

 People in the Middle Ages totally believed in the rule of law.  They were not always sure what the law was, and often they seemed to be making it up as they went along, but they believed at least as much as do modern people in doing things in a lawful manner.  Even though modern laws in the West grew directly out of medieval legal practice, there are plenty of differences.

One of the best examples of this is oath helpers.  Most discussions of guilt and innocence, of who did what to whom, turned as they did today on witness testimony and physical evidence.  But how to tell if someone was actually telling the truth?

As I have discussed previously, someone's truthfulness might be tested by ordeal, that is that they would swear to something and grasp a red-hot iron as proof of their veracity.  If the burn healed up as it should, they were indeed telling the truth.  Understandably, most people would prefer to be proven to be truthful by less extreme means.  Indeed, more people threatened to undertake trial by ordeal than actually went through with it.  (In some ways it was a bluff, saying "I'm so certain I'm innocent that I'll accept a horrible burn to prove it," forcing the other side to start to doubt their accusations.)

An alternate method was to gather oath helpers.  These fidejussores as they were known in medieval Latin would swear to the truthfulness of someone else's oath.  They were not witnesses, as they need not have any insights into what had happened, and they were not even character witnesses, as they were not expected to say (for example) that the accused was an affectionate husband and father who wouldn't hurt a fly.  Instead they swore oaths that someone else's oath was true.

So someone accused of (say) murder would swear on holy relics that they had never touched the victim.  Everyone would watch to see if he started frothing at the mouth and falling down.  If he didn't, he would provide oath helpers who would similarly swear.  Six or twelve men (or some different number, it wasn't absolute) would swear that this oath was true.  If any of them gasped and choked and fell down while trying to swear falsely, guilt would be pretty well established (pending of course further discussion, medieval judgments always required a big discussion).

But even if the accused managed to get all his oath helpers to swear to his own oath's veracity, he was not necessarily found "not guilty."  Part of any trial was "what everyone knew."  If the accused was, in everyone's mind, clearly the murderer (in this example), then they'd keep going.  They might require an ordeal, with further oaths from the fidejussores.  They might have a combat or dunk the accused in water.  Best of all, they might find that the knife stuck in the victim's throat was the accused's own distinctive knife.

When someone ultimately found guilty was to be punished,  all his oath helpers were also punished.  In the stories they were sometimes hung, although that was probably an extremely rare outcome.  But being an oath helper was a serious business, as the fidejussor knew that if the person whose oath he was helping actually was guilty, he himself would be punished, by the court or by God.

(In the "Court Scar" series I've written with my husband, we include several examples of legal judgments that carry the plot along, based on real medieval events.)

© C. Dale Brittain 2024

For more on medieval law, see my new ebook, Positively Medieval: Life and Society in the Middle Ages.  Also available in paperback.

Trial by ordeal

Medieval people totally believed in rule of law.  They were often making up the law as they went, but they really did believe that following the law was very important.  Trials were part of this.

Although modern society has (understandably) a rather negative view of trial by ordeal, it was based on the idea (that made perfect sense in the Middle Ages) that God knew who was innocent and who guilty, so they just had to get God to reveal His judgment.

Most obviously, in a trial by combat, the accused and the accuser would each have a champion who would fight for them.  The winner clearly was meant to win.  In trial by water, the accused would be dunked in a big tub.  If they floated, it meant they were guilty, because the water rejected them.  If they sank, they were innocent and had to be pulled out fast.  In a trial by fire, one would be burned (either by taking hold of a hot iron or by actually running through fire).  The burn, cleaned and bandaged, would be examined in a week to see if it was healing nicely, in which case the accused was innocent, or getting all infected, in which case he was guilty.

Medieval people certainly recognized the ambiguities possible in all this.  Everyone knew or had heard of cases where the obviously guilty party got off because he had a better champion to fight for him.  How nicely a wound was healing was certainly a matter of discussion.  Because of this, trials by ordeal were actually fairly rare.  Judges, who could be the local landlord, the local count, the sheriff in England, even the king, would hear witnesses and examine evidence.  But their principal role was not to rule definitively on guilt or innocence but rather to get the disputing parties to come to an agreement.  A major part of all medieval legal cases was having a big discussion.  The only sure way to get a definitive judgment was for one of the parties not to show up.

Curiously from a modern point of view, often an accused person would request trial by ordeal.  However, trials by ordeal were actually carried out far less frequently than they were proposed.  The accusers seem to have often worried that, if someone was willing to suffer a major burn (the most common kind of trial by ordeal) to demonstrate innocence, he might really be innocent.  More discussions would follow.

Not only people were tested by fire--so were relics.  If one had acquired a bone and were unsure whether it was a saint's or some old pig bone, one threw it into the fire (after a suitably reverent ritual).  If it hopped out, it was a saint's.  It all made sense.

To do any of this, of course, one needed to be sure that God was going to be passing the real judgment.  Thus one needed priests and blessings and oaths.  However, in 1215, eight hundred years ago this year, the church officially got out of the ordeal business.  Church lawyers felt that trials by ordeal "tested" God, forcing Him to reveal His judgment, which is actually against the Bible.  Without priests, it was a lot harder to do a decent ordeal.

More discretion thus went to the judges and, in England, juries.  Originally "juries" had not been those who decided guilt or innocence but rather witnesses.  The word comes from the Latin iurati, those who have sworn to tell the truth.  In fact, originally "trial by jury" was a form of ordeal, getting a dozen friends to all swear on holy relics that you were innocent.  If you weren't, usually about halfway through someone would break and blurt out the truth rather than perjure himself.

In late medieval England, jury trials started taking on the form they have now in England and the US, local people assembled to help the judge make decisions based on evidence and witnesses.  The main difference is that now we want the jurors to know nothing about the case ahead of time; then, the jurors came in extremely well-informed already.  (By the way, jury trials have nothing to do with Magna Carta, which does not mention them.  I'll discuss Magna Carta another day.)

Trials by ordeal continued at a low level, as long as one could find a cooperative priest, which became harder and harder.  In late medieval England, some people tried to get out of their obvious guilt by insisting on a trial by ordeal, knowing that that could mean no trial at all.  In response, judges took to making them lie down, putting a board on top of them, and starting to pile on stones, while asking if they had reconsidered what kind of trial they wanted.  At this point, most suddenly wanted a trial by jury.

© C. Dale Brittain 2015

For more on medieval trials and law, plus so much more, see my ebook, Positively Medieval:  Life and Society in the Middle Ages, available from Amazon and other on-line bookstores.