by Michael Pye
Women usually had to carry hot iron because the ordeal by water was not modest enough; there was criticism of ‘priests who peer eagerly with shameless eyes at the women who have been stripped before they enter the water’.35 Even so, women might choose ordeals to prove their virtue; a woman charged with adultery had no other way to establish her innocence. It might be hard to find two credible eye-witnesses to an affair and a carefully closed door or a muffling curtain could spoil the whole case, but that would not save a woman’s honour. When the legendary Isolde was accused of adultery with Tristan, her husband, the king, made her prove her innocence with hot iron.36 She carried the glowing metal, had her hands bound up and sealed with holy wax, and after three days the bandages were opened to see if the wound had healed the way an innocent person’s should.37 Gudrun in the story of Siegfried and Brunhilde proves she is not an adulterer with the ‘sacred boiling pot’, ‘plunging her bright hand down to the bottom’ and snatching at the precious stones lying there; the servant who falsely accused her also faced the ordeal and was scalded badly. She was taken off to be properly suppressed in a peatbog, alive for a while under a mesh of wattle.38
Virtue meant much more than an absence of sin. A cleric called Poppo, at the court of the Saxon king, Harold, around 963, kept arguing out loud at public banquets that there was only one God, and finally the king told him to prove it. The priest was arrested overnight and the next morning was shown the glowing piece of iron ‘of huge weight’ which he was to carry for the sake of the faith. He did so, without hesitation according to his biographers, ‘and carried it for as long as the king himself determined. He showed his unharmed hand to all; he made the faith credible to everyone.’39
The ordeal also stopped trouble by making a decision Godly and therefore final; or so even emperors hoped. When Charlemagne divided up his kingdom in his will, he specified that ‘if there is any dispute over the limits and boundaries of the kingdom that the testimony of men cannot clarify or resolve, then we want the question put to the judgement of the Cross’. That meant his rival heirs standing in church during Mass, arms stretched out like crucified men, until one collapsed and the other won. The Emperor was trying to keep the peace in territory with enemies all around; he wanted a verdict everyone could accept so that at least within the empire there should be ‘no combat of any kind’.40
All this depended on a holy process that took its slow, deliberate time right up to the moment when the body hit the water or the hand closed on the hot iron. When the ordeal was just putting holy bread in a man’s mouth to see if he choked, the bread had to be properly consecrated. When there was fire involved, there was time for the priest to warn any guilty man to stay away from the altar, to insist he remove every charm and talisman he might be carrying: to make sure he put away ‘the workings of foul spirits, no hurtful sacrileges, no magic acts’.41 The hand that was to be plunged into boiling water had to be washed carefully first, with soap.42 The water itself was exorcized so it could ‘judge the living, judge the dead, judge the human race’. The ground at the church entrance was sprinkled with holy water before the fire was lit; the men who lowered the accused into the water had to take the time to kiss the Gospel reverently;43 the men who lined the church for an ordeal by fire had to go without food and sex, to be clean enough to taste holy water.44
There was none of the law’s impersonal, almost mechanical process. The ordeal was full of time for accuser or accused to think again.
The Church could not approve. Ordeals were local and variable; the Church wanted universal and written laws. They could find no commandments in custom.
Besides, ordeals were Germanic and faintly pagan, and quite un-Roman, which caused great offence to those legal scholars who were putting together ancient Roman texts about law and trying to make them fit their very different modern world.45 A sixth-century manuscript turned up in Pisa, a kind of legal scrapbook of the writings of the great Roman jurists: Justinian’s Digest. Chapters and fragments of the same collection turned up in Bologna, where the law school fell upon them eagerly. By the last quarter of the eleventh century there was the start of a legal textbook, used first for Church and canonical law, but also for the lay courts.46 Priests had Scripture, lawyers had Justinian, and the church courts had the Decretum of Gratian, a twelfth-century Bolognese teacher whose anthology included anything that could affect a decision in canon law, from papal letters to the writings of the Church fathers to scraps of actual Roman law; quite a number of the canons were even genuine. Gratian’s book was copied again and again; it has been called ‘one of the most widely read books in Western history’.47
Gratian defined custom as ‘the kind of law established by usages and recognized as an ordinance when an ordinance is lacking’. Without a written ordinance, a case had to be judged by the law of the litigants’ region, so even a papal judge delegate like Vacarius had to learn the customs in each place as he went from Canterbury to York to teaching law in Lincolnshire and finally ending as a prebendary in Yorkshire.48 Law was still often a matter of local habit, of local knowledge.
Without strong states to enforce a universal law, it was likely to stay that way. The long struggle between popes and emperors was a problem, since the secular had no strong reason to help the spread of what was originally Church law. The Emperor knew his own power rested on custom, and on peoples who valued those customs and whose support he needed. Popes might lay down the law in Rome, the law school at Bologna might put the rules in order and teach them, but on the edge of the world the ius commune, the ‘common law’, had to argue its way, negotiate and compromise, take second place especially when Pope and Emperor were at loggerheads. Written rules were trimmed and qualified, sometimes until they were barely recognizable. Law was several rival works in progress for centuries, Church law, canon law, private law, public law, and the memory of what your grandfather always did.
Then, in 1215, the Fourth Lateran Council decided to condemn the settlement of disputes by duelling; priests should not be involved in a legal event which always ended with spilled blood. The Council also forbade priests to bless or consecrate any of the elements which went into a trial by fire or water. In 1222, Pope Honorius III went even further: he banned ordeals from secular law. The ordeal was stripped of its holiness and its logic went away, and law had the advantage. True, the Church had to keep on banning and banning because ordeals continued – witches were still being thrown into ponds in the seventeenth century – but anyone going to trial by ordeal had been warned that God was not coming with him.
This was an old argument. Popes from the ninth century denounced the very idea of ordeals; Agobard of Lyons said they were wrong because ‘God’s judgements are secret and impenetrable.’49 God was not to be bullied into telling what He knew. Church lawyers from the start of the twelfth century, like Ivo of Chartres, approved of ordeals only when all normal means of proof had been exhausted; although he did for some reason approve of using the hot iron when a man was accused of bedding his mother-in-law. Snobbery crept into the arguments, a kind still familiar any time an English judge has to sentence a middle-class professional: since ordeals were supposed to deter the very worst crimes, so Stephen of Tournai argued, they should be used only on the lower classes, whose morals were less secure.50 The middle classes never do think they need as much punishing.
Peter the Chanter, who taught theology at Paris and was the cantor at Notre-Dame, had a personal interest in the matter of ordeals.51 He’d once been consulted by a man wrongly accused of murder who had been given a chance to clear himself through the ordeal of cold water. Peter talked all the right theology and told him it would be a sin to submit to the ordeal. The man refused, and he was hanged.
Peter still thought ordeals were sin, because they were a way to tempt God to intervene in human affairs. He wondered why, when the ordeal was a duel of champions, each side worked hard to find the best fighter he could; nobody seemed to trust God’s judgement. He worried how holy a champion
could be when his clear, sometimes paid intention was to kill another man. He was also suspicious of the way ordeals were conducted; a guilty man could learn to blow out all the air in his lungs and sink in cold water as though he was innocent, and when three men were made to carry the same hot iron, the last one had a clear, unfair advantage as it cooled.
He collected stories of ordeals that went wrong. A man was accused of stealing from the Pope, failed the ordeal of hot iron and paid his dues; but then the stolen goods turned up in someone else’s hands. Two pilgrims took the Jerusalem road, but one of them was late returning, and the other was accused of his murder. The man underwent the ordeal of cold water, proved too buoyant for his own good, and was hanged. Very soon after that, his ‘victim’ arrived home, having made a brief sidetrip to the shrine of St James of Compostela.
Even so, it was not injustice that turned the Church against ordeals; it was the notion that a priest was a special kind of man, apart from others. He was forbidden now to marry, and encouraged to be chaste. He had professed his faith; he was a professional. There were many other literate men to run the bureaucracy of the new kinds of state, so priests were not obliged to take on that duty. They could stay apart from the ordinary world. If they were going to keep that separation, they could hardly continue with the ordinary and secular business of the ordeal; and since ordeals depended on their blessing, their absence changed the ritual for ever.
The lawyers were ready. Around 1150 there were scholars of law teaching classes in a few places, and some of them worked the church courts, but there was nothing you could call a legal profession in most of Europe. There were men called advocati, but it was a slippery word, sometimes meaning just a witness, sometimes the patron of a church or the champion in a jousting duel, sometimes an adviser to a judge and just occasionally what we would mean: the one who argues someone’s case in court.
That had all changed by 1230: a profession had formed. Lawyers were trained formally at the newly founded universities, which started with clusters of canon lawyers at Paris and at Oxford, a town one scholar monk said was filled with lawyers. They were making a living and quite often they were claiming the same kind of professio, the solemn statement of intention, that a monk or a priest would make. Judges would hear only proper, qualified lawyers, which meant that lawyers could close off their profession. They were reviving a Roman tradition, but carefully; they refused the tradition mocked by the poets Martial and Juvenal, which was the underpaying of advocates with, say, a sack of beans, a mouldy ham, old onions, ordinary wine or just a handful of spices.52
Sometimes these men were true scholars of the law; sometimes, ‘after having heard barely half of one lawbook they arrogate to themselves the task of pleading publicly’, as a thirteenth-century Archbishop of Canterbury complained. The awful standards of the worst ones made it even more important to restrict the courts to men who had studied seriously, three years at least. They were the aristocracy, they thought, of a business in which proctors did property deals, pulled strings and found things out, while notaries acted as though they were much more than simple scribes and charged accordingly. In the church courts lawyers reckoned they were much like priests. They also wanted at least the social standing of knights, although they much preferred to be considered noble.
This was not everyone’s opinion. The woman-hating poet Matthieu of Boulogne very rarely puts women above men, but he said lawyers were even worse than whores, because whores sold only their arses while lawyers sold a nobler organ, the tongue.53 They certainly wanted to be paid for their experience and their expertise, not just their time. In Piers Plowman, the author William Langland has a vision of barristers-at-law who ‘wouldn’t open their lips once for pure charity’s sake. You’d have more chance of measuring the mist upon the Malvern Hills than of getting so much as a “Hmm-er” out of them, without first putting down cash for it.’54 Priests in England had a list of questions to ask lawyers in the confessional, just in case they had forgotten any sins such as helping a client perjure himself, or using abusive language to cover ignorance, or overcharging a client; and they include a sin they considered just as grave: ‘were you ever content with a paltry salary, say four or six pence, while acting … in a large case …?’55
Being professional proved a most powerful idea. It depended on the schools and the teachers that banded together in the newly founded universities, in Oxford and in Paris in the North, and the idea of a qualification: a degree. Judges would hear only the qualified. That invented a class of lawyers who were licensed to talk in courts as well as read the books, which invented the very idea of a professional class, which in turn became the basis of the idea of a middle class – people with power based on their expertise, neither knights nor peasants but able from the middle to tell both what to do.
Doctors of medicine watched the lawyers devise all this: the university training, the special knowledge, the honorific degree, the social climbing and the income. Doctors wanted to be professionals, too.
The textbook law of Gratian and the lawyers was new in the North, but it was needed: there was such dizzying change in the new merchant towns round the North Sea, such unsettling of classes and movement of persons and a constant flow of foreigners and foreign ideas that citizens needed some constant way to sort life out. Where riches used to belong to nobles or the Church, now they were shared by new classes of merchant and dealer doing business for themselves; the women and men who had once been firmly attached to someone else’s land could come to the cities and make new lives.56 All this change was here and now, so logically the place to find stability was in the distant past.
The law of the Roman Empire was a powerful memory in Italy, the mould for local customs. When it became the basis of the Church’s laws, and the civil law that was modelled on them, it was a good fit. Contrariwise, north and west of Italy, over the Alps and down the Rhine and across the North Sea, this kind of law had travelled only erratically and piecemeal. Some territories had never known the old imperial rule of Rome and were not enthusiastic about the new kind. Some had preserved their own laws and customs even under an emperor as ambitious as Charlemagne. There was a long history either of resistance or of downright indifference to grandiose ideas of a common, universal law: the ius commune.
Inevitably, though, under pressure from the new men who wanted to buy their position in the world, the old customs had to change.
Towns and cities were filling with classes of newly rich people, who did not have any strong connection to some rural base. The reason they wanted land was the reason land was not so easily for sale: property was a family’s whole identity as well as their wealth, their name and history as well as future income in a most uncertain world and the prospect of money to buy care and attention in old age. Land stayed mostly in the family line; it could hardly ever be legally sold, transferred or given away.
Family quarrels were mostly about which heirs or relatives had the right to dispose of land, and if those disputes could not be resolved the way people liked, then they started wrangling about anything growing on land or stored in a house, down to the provisions left in the pantry and cellar. Anything that belonged to the house was passed on with the house: in England, that included the hounds of the house, along with the mangers, doves, ovens, shutters and anvils. If it was moveable, then it could be divided and sold off. There were court cases in Ghent over trees, since wood was scarce and valuable as fuel and building material, and forests were a noble asset; but apple trees were reckoned moveable and saleable because you pick the fruit, as were willow trees because you cut the new gold branches in spring to make ties and to weave seats and fences. Houses, too, were considered moveable, which makes some sense when you remember that any house owner might want to divide up or rebuild or let out her or his house without worrying about handing on to the heirs exactly the house he inherited; moveable really meant changeable. It also meant saleable. The new Roman laws allowed that, custom was in the way, and the two were at
perpetual war over who got to inherit what, and how.57
The law was needed, too, in the risky business being done even by the holiest of men. Some abbots had a head for business, but not all. Cistercian monks came to the Yorkshire dales to run flocks of sheep on wasteland, and live from the sale of wool. They sometimes needed cash and borrowed it, and sometimes acted as middlemen between the small farmers and the cloth merchants, offering credit to both. They paid out cash to the farmers for wool to be supplied in the future, and since it would be immoral to charge interest, they set a delivery date that everyone knew was impossible; then when that date passed, they collected a ‘fine’ for the sheer inconvenience of having to make a second visit to collect the goods. They also advanced cash to landowners in trouble with moneylenders, and so their estates grew and grew. Bishops and royals left money with them, a kind of current account on which cheques, or at least mandates, could be drawn. The monasteries of their austere order accidentally became banks: strongrooms for kings, merchants and popes, sources of credit for farmers. What they lacked was capital; they were not thinking in those terms. If things went wrong, then the money they owed, the money they had at risk, could be a disaster, as it proved when the king shut down the Jewish moneylenders and became the monks’ main creditor. Their resources were not exactly liquid; they were churches, cloisters, dormitories. Without the resources, the ideas or the cash to save themselves, the monks made mistakes and then they crashed. Eighteen of their houses, and Fountains Abbey itself, were mortgaged and foreclosed at one time or another.58
If simple shepherd monks could fall into this range of legal and financial trouble, imagine what could happen to the unholy. A man claims he has been let down – by a horse dealer, a doctor, an innkeeper with thieving servants or a courier who fails to deliver – and he goes to court. If he does not have a specialty, a document written under seal to prove his arrangement with the dealer, doctor, innkeeper or courier, then he can be answered by the ‘wager of law’, in which the defendant and eleven of his friends simply stand up in court and deny any liability on oath. An old custom trumped new-fangled law, unless you understood the magic of writing things down. Even judges could find this unreasonable; in 1374 Justice Cavendish ruled that such a case could proceed even without any document ‘because for such a small matter a man cannot always have a clerk to make a specialty’.