"Accordingly, in the earlier epochs of almost all races, a belief in a Divine Being is accompanied with the expectation that special manifestations of power will be made on all occasions, and that the interposition of Providence may be had for the asking, whenever man, in the pride of his littleness, condescends to waive his own judgment, and undertakes to test the inscrutable ways of his Creator by the touchstone of his own limited reason. Thus miracles come to be expected as matters of every-day occurrences, and the laws of nature are to be suspended whenever man chooses to tempt his God with the promise of right and the threat of injustice to be committed in His name.1"
William Edward Hartpole Lecky, History of Rise and Influence of the Spirit of Rationalism in Europe, [1879], pp. 89-91
Philosophy of Medieval Law
Medieval Law was derived from three sources: Roman law, ecclesiastical law, and common law, each with its own presuppositions and goals. Even more than today, the law varied from place to place since the central governments which would try to make the laws fairly uniform throughout the realm did not yet exist. The theory of mediaeval law assumed that the criminal was responsible to the aggrieved party, not to the state. Unlike today, the burden of proof was on the accused to prove his innocence.2 The role of the courts, such as they were, was to provide a location for and a mechanism by which the parties could peaceably resolve their differences. The offender could not refuse to resolve a dispute peaceably, he was required to appear in court if summoned and must pay whatever fine was levied. A system of wehr-gild assigned a price to each type of crime. If the accuser was not satisfied with the outcome of court trial, the aggrieved party, along with his family and friends, always had recourse to sword and axe.3
The family was seen as a unit. All members of an extended family worked, and often lived, together to ensure the success of the entire family. If a man died, not only his wife and children suffered the loss of his services, but his parents, his siblings, and his nieces and nephews also incurred a real loss. On the other hand, each individual had obligations to his family and it was other members of the family who saw to it that each member of the family fulfilled his obligations to it. So it was natural that the family (sometimes to the fifth degree of relationship) paid or received whatever fine was assessed to be shared among the kinship network in proportion to the closeness of kinship to the person involved in the court action4.
As in earlier times when it was the family who fought on the field of battle when one of their members was accused of a crime, it was the family who stood with each of their members in the courts of law when they were accused of a crime. Gradually the system of the family defending the accused on the battlefield was replaced by a system where the family assisted the accused in the courtroom by testifying to the rightness of the espoused cause in a complex system of compurgation. The family was still responsible as a unit for whatever penalty exacted. The number of required compurgators, whose ". . . oath was an unqualified assertion of the justice of the side espoused,"5 varied depending on locality and crime.6 Heavy penalties were levied against compurgators for perjury. The number of required compurgators and witnesses varied depending on relationship of compurgator to the accused, the status of the accused, the accused crime, and the locality.
For example, under Charlemagne while clergy could still be prosecuted in secular courts, "for the conviction of a bishop the testimony of seventy-two witnesses was requisite, while forty-four were necessary in the case of a priest, thirty-seven in that of a cardinal deacon, and seven for a sub-deacon -- all to be heads of families and professing Christians.7"
As time went on, the unscrupulous developed various stratagems to keep compurgators from being convicted of perjury even if they swore falsely, like swearing on an empty reliquary (because it was empty, there was no perjury), causing the entire system of compurgators to fall into disrepute. So the notion of trial by ordeal arose. In theory, since God involves himself in the most petty aspects of human existence and since God would not let an innocent person suffer, God would ensure that the innocent passed the ordeal. The same logic would be used to underpin the legal trial by combat.
The theory behind trial by combat [wager of battle] went something like this: Nothing happened in this world without the God's knowledge; everything that happened in this world happened because it was God's will. God wanted justice and right to prevail. Hence, God would involve Godself in the judicial combat to ensure that the victory went to the person who was right.8
Because the burden of proof was on the accused to prove his innocence, a man could easily make a false accusation against his neighbor. Under Roman law, lex talionis, the law whereby if the accuser looses, the accuser suffers the same penalty as the accused would have suffered if he had been found guilty, was a useful check on frivolous and untrue accusations against another person. Lex talionis was generally not a part of medieval law, weakening the protections of the accused against an untrue charge.
The study of Roman law revived in about the 12th century9. Roman law placed the burden of proof on the accuser and the accused was innocent until proven guilty, again strengthening the accused against an unjust accusation.
Secular rulers tried to replace trial by wager (ordeal, combat) in the early 13th century. Emperor Frederic II in his Neapolitan code of 1231 was the first ruler to take efficient steps towards its abolition10. Trial by wager began to fall into disuse, although it was still an active legal principle in 13th and14th centuries11. Trial by wager was not formally abrogated (removed from law codes) until much later. Indeed, in England "it was not until 1833 that the wager of law [use of compurgators] was formally abrogated by 3 and 4 William IV, c. 42, s. 13.12"
Under Roman law torture had a place, but it was severely restricted. For example, a slave could not be tortured into testifying against his master. The law of lex talionis13 together with the assumption of the innocence of the accused served as an efficient deterrent to an unjust accusation which might result in the use of torture. Eventually, torture was restricted only to cases involving crimes against the state (for example, plotting to assassinate the emperor). European common law also had no place whatsoever for torture. Torture was introduced into European law by the Church as a consequence of the Church's routine use of torture during the Inquisition and remained in the European law codes for hundreds of years.
Torture was removed from the law code in Saxony between 1770 and 1783. Switzerland and Austria removed torture from their law codes about the same time. In 1762, Empress Catherine removed torture from the jurisdiction of the lower courts and in 1767 restricted the cases in which it could be used and then only with the special permission of the governor of the province. Napoleon removed torture from the law codes of many states in Europe when he conquered them. To their eternal shame, some states readopted torture when Napoleon was driven from their land. Torture continued to disgrace the jurisprudence of Wirtemberg and Bavaria until 1806 and 1807, Hanover (which was ruled by the English king) until 1819, and Baden until 1831.14"
End Notes
References
Henry Charles Lea, Studies in Church History: The Rise of the Temporal Power, Benefit of Clergy, Excommunication, The Early Church and Slavery (1869) [Philadelphia: Henry C. Lea's Sons & Co., 1883].
Henry Charles Lea, Torture, Ordeal, and Trial by Combat in Medieval Law, (1870) [New York: Barnes and Noble, 1996]
William Edward Hartpole Lecky, History of Rise and Influence of the Spirit of Rationalism in Europe, 1879