The Catholic deacon resigned from the ordeal, presumably with heartfelt relief. But the Arian was not off the hook. Another Catholic priest had stepped out of the crowd, insistent on taking the disgraced deacon’s place. The Arian’s back was against the wall. To refuse the new challenge, he would have to concede the issues of faith that had begun the fracas. Reluctantly, he examined the priest’s arm and, finding nothing to complain about, signaled him to proceed. The priest plunged his arm into the cauldron.
According to legend, the Catholic kept his arm submerged in the vigorously boiling water for two hours as he grasped for the ring. At last, he snatched it, raised it high above his head, and announced to onlookers that the water felt cold at the bottom and comfortably warm at the top. His hand and arm were miraculously uninjured. Emboldened by his adversary’s success, the Arian brazenly tossed the ring back into the water and thrust his own arm in after it. Within a moment, his flesh was boiled off the bone to his elbow. God apparently sided with the Catholic.
This kind of “non-rational evidence,” as historians would call it, settled every kind of community squabble in the Germanic tribes that overran Europe at that time. Even the fate of criminal suspects was at the mercy of the “trial by ordeal” in the Dark Ages. This judicial use of the ordeal was the great-grandfather of modern criminal proceedings. It was the first chapter in the history of the law of evidence, which would lead, more than a millennium later, to the use of fingerprints. But for now the law had no use for earthly clues. God knew who stole or killed, so gathering facts was irrelevant. Conjuring God’s judgment was the trial’s only goal.
In Saxon England, a frightened suspect often desperately tried to avoid the trial by ordeal by recruiting community members to swear to his good character, in the hope of convincing a judge to let the suspect off the hook. But since fire and brimstone would rain on compurgators who swore falsely, even the slightest scent of doubt in a suspect’s innocence meant his friends and acquaintances turned their backs on him. He’d have to admit guilt or submit to the ordeal, turning his fate over to what was, in essence, an elaborate coin toss.
The ordeal required prolonged contact of the accused criminal’s bare flesh with either boiling water or, just as commonly, a lump of red-hot iron. The worse the alleged crime, the deeper the judges made him plunge his hand into the boiling water, or the heavier the lump of red-hot iron they made him carry. The singed flesh was then sealed away in bandages. Three days later, judges examined the wounds and divined the evidence of God’s judgment. Healing meant innocence, release, and not so much as a muttered apology for the now crippled limb. The stench of infection indicated guilt and execution.
The ordeal was cruel and arbitrary, but it was better than the mass bloodshed that came with its alternative, vigilante justice. Then, a theft might lead to a fight, which ended in a killing, which was in turn avenged by a murder, which then sparked a clan war. The ordeal, at least, had the virtue of resolving conflict, in a procedure agreed by the community, before it devolved into blood feud. One innocent life might be sacrificed, but tens or hundreds were saved.
But ordeals and their ruthlessness long outlived the dangerous Dark Ages clan wars they were designed to prevent. One form of ordeal, the wager of battle, in which the accused and accuser, or their champions, pummeled each other with wooden staffs, remained common in England into the fifteenth century. If a defendant kept up the good fight from sunrise to sunset, he was innocent. Defeat once again fated him to the hanging tree. Even after this judicial jousting faded from practice, it lingered in the law books until it was resurrected for the last time, amazingly, in 1817.
On the morning of May 27 of that year, in Tyburn, near Birmingham, the dead body of a young woman named Mary Ashford was found at the bottom of a pit near her home. Abraham Thornton, a bricklayer and the son of a respectable builder, was arrested and tried for the murder. The jury found him not guilty. An archaic British law, however, allowed the appeal of a not guilty verdict in cases of murder, and Mary Ashford’s brother, wracked with grief over the death of his sister, instituted such an appeal. Thornton was again arrested.
If Mary Ashford’s brother could cite archaic law to bring this frivolous second trial against Thornton, his lawyers reasoned, then they could also invoke an obsolete statute. In court, they insisted that Abraham Thornton, a large and strong man, be allowed to answer the charges against him in a duel against his less physically robust accuser. The wager of battle, they maintained, had never been expunged from British law. After much quibbling between the lawyers, the judges came down on the side of Thornton. They ruled that if the trial were to continue, the brother would have to fight. Scared for his life, the brother withdrew his appeal, Thornton got his freedom, and both appeal of murder and wager of battle were struck, finally, from the English law books.
While the administration of justice relied on divining verdicts from God, methods as sophisticated as fingerprinting, and indeed any form of factual evidence, were a long way off. Developments were slow in coming. The old Saxon judicial system remained in use until in 1215 when Pope Innocent III forbade the clergy from participating in ordeals. Walking out on the procedure, the clergy effectively took God with them. And an ordeal without God was like a courtroom with no judge.
So-called investigating juries filled the judicial void. The juries were community recruits—mayors, sheriffs, and tradesmen—who lacked any notion of legal objectivity. Their investigations often amounted to nothing more than knocking on doors to gather local gossip. Suspects were allowed only to listen mutely, unable to say a single word in their own defense, as the juries recounted their hodgepodge of hearsay before a judge, so an indictment, even if it was based on rumor, was a fast track to the gallows. The fact that evidence still was not examined directly in the courtroom tipped the scales of justice heavily toward the prosecution.
Not until 1504 did English legislation call for witnesses to present their own evidence before a judge, the way they would today. An Act of Henry VII, the first to use the word “evidence,” urged anyone who witnessed the crossbow shooting of a king’s deer to testify openly at court. The Act’s promise of a ten-shilling reward blurred the line between a witness’s imagination and his memory, but the Act still led the march toward judicial examination of evidence, and a number of other acts calling for eyewitness testimony soon followed.
There were back steps, however, and a new injustice sneaked into the courtroom on the heels of the new evidence: Only the prosecution could call for testimony. Though the defendant could question witnesses rallied against him, he couldn’t call his own witnesses or speak in his own behalf. The accused, if he were allowed on the stand, the rationale went, would lie to save his skin. He would then be condemned to hell for breaking the oath of the witness. Refusing the defendant his day in court, therefore, was a supposedly compassionate means of saving his soul.
With no way to answer charges, the accused was left vulnerable to exaggeration and outright lies. As a safeguard, in serious cases like treason or murder, a judge could not consider the yammerings of a prosecution witness unless another witness confirmed them—if only one witness for the prosecution came forward, then the defendant went free. The bad news for the person in the dock was that if the prosecution could find two witnesses telling the same story, his conviction was automatic, regardless of the judge’s personal opinion.
Since incredible weight rested on a witness’s testimony, the penalties for perjury were steep—if a liar got caught. But the defendant’s only protection from the clever perjurer was the oath of the witness. Breaking it condemned the witness’s soul to hell-fire. A sixteenth-century English legal handbook, The Country Justice, advised judges that the way to squeeze the truth out of witnesses was to frighten them with threats of damnation.
But fear of damnation had no power over some witnesses, particularly if, for example, they were religious zealots championing their faith. After Henry VIII separated the English church from Rome, the struggle between the Catholic and Protestant powers often erupted in plots and scandals that ended in the courtroom. Witnesses in this struggle didn’t give a second thought to their oath to tell the truth. In their religious fervor, some, such as the Anglican priest Titus Oates, didn’t even mind if their outlandish courtroom lies ended with the death