Mythcarriage of justice?

In one trial by ordeal, people were found innocent if they sank in water. But were they in fact fished out before they died?

I served as a potential juror yesterday (and will do so again today because I wasn’t empaneled for a trial—if that happens again today, I’m off the hook). While cooling our heels we were shown what I thought would be the usual cheesy video about how jury service is our civic duty. While I agree it’s a civic duty, such videos—of which I’ve now seen many versions in three states—usually don’t convey much beyond that one-sentence sentiment.

But this video did something quirkier. To emphasize why jury service was important, it opened by dramatizing alternative, historically popular ways of separating the innocent from the guilty. More specifically, its first scene portrayed a medieval trial by ordeal. The accused was tightly bound and thrown into a lake: if he sank, he would be found innocent; if he floated, guilty.
That particular trial by ordeal is, as we all know, a hoary metaphor for perfect perversity. All trials by ordeal are absurd and arbitrary, but this version seems to guarantee not just that the innocent will be drowned (by the way, is that where Yeats got the line in “The Second Coming”?) but that those adjudged innocent by the trial procedure itself will be drowned. It’s always been hard for me to even imagine that people at the time could have thought this made sense.

Well, if the makers of this video got it right, these Middle Agers were smarter than we thought. As shown here, the judge waited about ten or fifteen seconds after the accused was thrown in. When he failed to float, the judge nodded to the spectators so that the guy’s friends and relatives could fish him out and revive him, sputtering but unharmed, while everyone cheered.

Two questions. First, for those with knowledge of legal history, is this right? Were those judged innocent in these trials quickly rescued? If so, the method was still ridiculous but for the opposite reason from what one would have thought: it guaranteed not that all innocent defendants, as well as the guilty, would die, but that almost all guilty defendants (except those with lots of air pockets in their clothes) would go free. Second, for everyone: am I right that almost everyone assumes the innocent who faced this kind of trial in fact drowned, or was it just me who thought that?

 

Author: Andrew Sabl

I'm a political theorist and Visiting Professor (through 2017) in the Program on Ethics, Politics and Economics at Yale. My interests include the history of political thought, toleration, democratic theory, political ethics, problems of coordination and convention, the realist movement in political theory, and the thought of David Hume. My first book, Ruling Passions: Political Offices and Democratic Ethics (Princeton, 2002) covered many of these topics, with a special focus on the varieties of democratic politics and the disparate qualities of mind and character appropriate to those who practice each of them. My second book Hume's Politics: Coordination and Crisis in the History of England was published in 2012; I am currently finishing a book on toleration, with the working title The Virtues of Hypocrisy, under contract with Harvard University Press. A Los Angeles native, I got my B.A. and Ph.D. from Harvard. Before coming to Yale I taught at Vanderbilt and at UCLA, where I was an Assistant, Associate, and Full Professor; and held visiting positions at Williams, Harvard, and Princeton. I am married to Miriam Laugesen, who teaches health policy and the politics of health care at the Mailman School of public health at Columbia, and we have a twelve-year-old son.

36 thoughts on “Mythcarriage of justice?”

  1. Honestly, the whole thing sounds apocryphal, like prima noctis. Are there any first hand accounts of it happening?

  2. I thought these kinds of trials were more for testing to see whether or not the accused was a witch, not whether you stole my ham. And if you’re going to accuse someone of crazy shit like being a witch well then trial by ordeal seems like a pretty good fit to me.

  3. I believe the thinking is that administrators of justice had a lot of ways to rig these things. Popular ordeals included suffering an injury (by plunging a hand into boiling water, for example), then waiting to see if the wound was healing or not after a few days. Pretty subjective call, really. And the exact circumstances of the ordeal could be tweaked to make it easier or harder, like literacy tests in the American South. Ordeals were theatrical occasions, with plenty of stage management. Suppose you’re running an old-timey village that uses trial by water. If you think the accused is probably guilty, you can take him aside and say, “Look–you might be vindicated by the water, but you’ll also be dead. Or you can cop a plea now. Your choice.” If you think the accused is innocent, you sew rocks in his cloak and end the ordeal five seconds after his head goes under.

    1. Craig: And the exact circumstances of the ordeal could be tweaked to make it easier or harder, like literacy tests in the American South.

      Rosanell Eaton, 92, remembers the humiliation for blacks who sought to cast ballots in North Carolina before the Voting Rights Act. In 1939, she said, she hitched a mule to a wagon and rode to the courthouse in Franklin County, N.C., to register. Three white men, probably illiterate, demanded that she recite the preamble to the U.S. Constitution. Eaton, the valedictorian at her rural high school, recited the preamble word for word. “They were so ignorant they didn’t know if I said it right or not — but they registered me,” she said.

      http://www.latimes.com/news/nationworld/nation/la-na-voting-rights-20130630,0,211700.story

  4. Basically what Craig said.

    The real purpose of trial by ordeal was that the penalty for being “judged” as guilty was more severe than “plea bargaining” prior to it, with the added bonus of the pain or trouble of having to go through the ordeal itself. If the society believed that guilt and innocence could be determined in that way, and the judges (priests usually) could rig it to suit their purposes, then guilty people would tend to either flee or take a deal by confessing their guilt. Innocent people meanwhile believed they would be saved (by god) and vindicated, and the judges did quite a lot to help them along. It’s actually not that different from our system of jury trials in that respect. Most accused persons do not actually go to trial to have their guilt and innocence determined, in fact very few do. There’s just a little more evidence based law and investigation involved today rather than divine intervention based law.

    The other difference is that an enormous quantity of people in ordeal trials were judged to be innocent. And no, it wasn’t just you that thought they were actually drowned. That’s a very popular misconception.

  5. Steve:

    May (or may not) be a popular misconception. It would be useful if you could provide some sources for your claim that it was all really just about plea bargaining.

    Wikipedia (Trial by Ordeal) says, in part:

    Gregory of Tours recorded in the sixth century the common expectation that with a millstone round the neck, the guilty would sink: “The cruel pagans cast him [Quirinus, bishop of the church of Sissek] into a river with a millstone tied to his neck, and when he had fallen into the waters he was long supported on the surface by a divine miracle, and the waters did not suck him down since the weight of crime did not press upon him.”[5]

    Apparently the old traditional millstone around the neck had a negative effect on floatation.

  6. Hi,

    A couple of notes (this is England, primarily, as I’m an English professor who does literary history and practices a contextualizing type of scholarship):

    Trial by ordeal did exist, and it was stopped in 1215 by a ruling of the Fourth Lateran Council. Before 1166 (again, in England) it was generally done only if the person involved was particularly untrustworthy or if there was some reason not to trust that the preferred method, a swearing of an oath by the accused and twelve men of good reputation as to the accused’s innocence, would not count. It was also possible that this could happen if the accused was a foreigner and had no friends to swear an oath with. The fact that these other guys were swearing the oath too was a big deal because if they lied and failed to keep their oath, they were all punished for purjury. Both William Rufus and Henry II didn’t trust the ordeal as an accurate way of judging guilt, so it was rare that it happened.

    Usually well-informed jurors passed judgement on cases and there was no need for trial by ordeal. Reasonable doubt also meant that the trial by ordeal didn’t usually happen. So usually people who underwent trial were already thought to be guilty.

    That said, the punishment for the types of crimes that the ordeal was considered for was death or mutilation. So the trial could be seen as a form of mercy — a final check in cases where the guilt of the proband was already assumed.

    Since the records show that in many of these cases people who succeded in the trial were asked to abjure the realm and those who failed were hanged, the idea that the trial by cold water resulted in drowning is a myth.

  7. I think it’s important to think about the _system_ of law and its results. I don’t know anything about whether or not the “innocent” were aided in escaping the waters of guilt or not. It just makes me curious about who was aided and who wasn’t, even in the face of the results of what was presumed to be a “fair” trial on charges we would find ridiculous today. Surely such justice wasn’t handed out even-handedly…

    And in that, such medieval justice likely resembled the results of our “justice” system, where huge racial disparities persist in spite of evidence indicating there is no more drug-lawbreaking among, say, African American males than among whites, yet it’s black kids who fill our jails.

    Yep, American’s “justice” can brag about results at least as trustworthy as rough medieval justice. That’s progress in the eyes of some and I’m sure politicians will trumpet it from the rooftops as they run for re-election. Will citizens continue to give their silent consent to such cruel and inhumane practices? Sad to say, probably yes, although the growing movement to legalize marijuana gives me hope that maybe we’re waking up to that fact that our law enforcement today is more closely tied to our brutal, Puritanical past than we should be comfortable with.

    1. Oh no, today we are much more advanced. For we let people sink in *poverty,* which is not only the proof that they are unworthy but also their punishment! Very convenient, but highly rational as well, for all good Republicans know that people get exactly what they deserve, since ours is a meritocracy, and after all, this is a just world.

  8. This is actually true and is well documented in a paper title Ordeals by Peter T. Leeson who was at the University of Chicago Booth School of Business when he wrote it. It’s available online at: http://www.peterleeson.com/Ordeals.pdf. The paper is well researched and describes how trials by ordeal were in reality much less perverse than their simple description leads us to believe.

  9. Thanks, everyone!

    By the way, I did not mean in any way to deny that our current justice system has huge problems. Probably the part I could have participated in (but didn’t, in the end), a jury trial, is not where the biggest problems lie. But I’m aware that most criminal accusations never see a jury.

    1. I’d say the biggest problem with our current ‘justice’ system is that the right to trial by jury has become something of a fiction, in that by over-charging and offering plea bargains down, the system manages to discourage almost everybody from exercising this right. The legal system would instantly collapse if everyone simply asserted their right to an actual jury trial, because it totally lacks the resources to afford jury trials to all the people being processed through the system.

      Frankly, it’s sufficiently unjust that it ought to collapse.

      1. wow, a rare area of agreement with mr. bellmore. the universilazation of plea bargains over the years has added to the pressures involved in making someone falsely confess to a crime they had not committed and made public defenders a party to those pressures. it should be changed but that would require having more prosecutors and public defenders in the budget. i don’t know about other states but here in texas our legislatures (republican dominated) like their criminal justice system to be inexpensive.

          1. crime rates are about as low as they’ve been during my lifespan so you’re already getting part of your wish. still, i think incarcerating innocent people while the real criminals go free is not getting us to the goal you would prefer. funding the justice system to the extent of making jury trials prevail over plea bargains would be one way to reduce both the crime rate and the rate of wrongful convictions.

          2. The best way to reduce crime—perhaps what Brett meant—is to get rid of the laws that make so many things unnecessarily illegal. You can’t get out of bed anymore without committing a felony.

  10. 1. Years ago in Manhattan, I was going to ignore the video, but the narrator was Jane Alexander, who appeared on camera at the beginning, so I wound up listening to the whole thing.

    2. Literacy tests – does anyone know the exact punchline in Yiddish to the joke about the African American in Alabama? [My yiddish here is mostly guesswork and Google translate, and I have great confidence in neither.]
    The Whites at the polling place hand him a newspaper to read, but it’s the Forvertz.
    “I can’t read the smaller print,” says the man, “but I can read the headline.”
    “Yeah?” challenges the poll watcher, “What’s it say?”
    “Schvartzim shtimen nicht in Alabama doz yor.”

  11. I have long thought that the modern-day version of trial by ordeal are the anti-abortion laws that allow for abortion only if the woman’s life is at risk. How does a woman, or her doctor, prove that the abortion is sought to save her life, and not for some other reason? Only by undergoing the ordeal of suffering through the complications of the pregnancy, and sometimes dying from those complications. The death of the woman is the only true proof of the innocence of her reason for seeking the abortion.

    1. “How does a woman, or her doctor, prove that the abortion is sought to save her life, and not for some other reason?”

      How about, by presenting the medical evidence that caused her and her doctor to arrive at that conclusion in the first place? Assuming that she didn’t decide the pregnancy endangered her live by consulting a Magic 8 ball…

        1. Yes, you do seem to be missing the point. If she can’t prove medical necessity, it’s only because she had no real basis for claiming medical necessity in the first place.

          I realize you don’t LIKE a woman having to prove medical necessity to have a late term abortion. You want her to be able to have a late term abortion for any reason that strikes her fancy. Live with the fact that, on that score, you’re very much in the minority.

          1. here are some resources that might clarify some of the issues you reference above–

            restrictions by state–

            http://www.guttmacher.org/statecenter/spibs/spib_PLTA.pdf

            reported reasons for abortions–

            http://www.holysmoke.org/fem/fem0543.htm

            information about late-term abortions–

            http://www.livescience.com/17529-trimester-abortions.html

            i realize you don’t LIKE a woman having the right to an abortion. you want her to be as traumatized as possible by the restrictions placed on that right if it can’t be completely eliminated.

          2. “You want her to be able to have a late term abortion for any reason that strikes her fancy.”

            No one has an abortion “to strike her fancy.” Especially, no one has a late term abortion to “strike her fancy.” I ascribe such notions to another sort of “mythcarriage of justice” where men fancy themselves in a woman’s boots, while retaining their white make privilege. It’s an ugly sight and those who tart themselves up by amking such irrational statements well deserve being raked over the coals.

          3. “No one has an abortion “to strike her fancy.”

            Always it’s “diversity” this, and “diversity” that, but the moment it serves liberals’ purposes, it’s “nobody would ever chose a late term abortion for anything less than the most serious reasons.” BS. There are women who give birth on toilets and then strangle their young, recruiting an abortionist to do it a little earlier is scarcely any kind of stretch.

          4. Brett,
            If you are truly worried about minimizing the chances any individual woman might take such desperate measures, then you would support making safe abortion widely available, instead of it being a right under attack in some states.

            Besides that, late term abortion is a tiny percentage of all abortions, less than 1%.
            http://rhrealitycheck.org/article/2009/06/02/lateterm-abortions-facts-stories-and-ways-help/
            So the situation you use for an example is a tiny percentage of that 1%.

            The reason women usually initiate a late term abortion, which is subject to a number of legal restrictions permitted by SCOTUS in many states (so even now access to it is not based on on a woman’s whim as you allege) is due to a health issue for either mother or fetus.

            Moreover, your use of an extreme and rare example as a way to call for terminating all rights to an abortion for every woman does remind me of another argument those on the right have that is legitimate. Why take away the constitutional rights of all citizens because a tiny percentage misuse that right? You want to do that to women, but I’m sure you’d be singing a different tune here if we were discussing gun control. Yes, a few people can abuse their right to own a gun. Does that mean we take away that right from everyone? Do we do that on the basis of a tiny fraction of 1% abusing that right?

            In any case, banning safe, legal abortion will only result of in more women doing the very rare sort of thing you condemn. Making abortion, late term or otherwise, illegal has about the same chances of success as making marijuana illegal.

          5. Mike, I am personally ok with early abortion being freely available. (Which is rather different, of course, from “available free”, in case it has to be said.) But I’m at a loss as to why this particular medical procedure has to be free from being subject to regulation by the same state that’s forcing me to show my driver’s license before I can get a decongestant that works. It’s funny how the party of regulation becomes so laisser-faire when this ONE category of medical procedure is involved, to the point where, if I had a 13 year old daughter, she could now get plan B on her own say-so.

            But by the time we’re out to 20 weeks, all the excuses for making abortion easy to get have evaporated. Virtually nobody is surprised to find, at 20 weeks, that they’re pregnant. At 20 weeks, it’s no longer a form of expedient birth control, covering for condom failures. At 20 weeks, you’d better have a damned good reason for aborting a fetus approaching viability, after having had months to have made the decision when “mass of cells” might actually have been a reasonable description of what’s being killed.

            At 20 weeks, insisting that it be possible to swiftly transfer the woman to a real hospital if things go bad isn’t a bad idea, either. So it’s not even an unreasonable regulation.

            As for a tiny percentage, right, I believe the Kermit Gosnells of the world are diligent about reporting statistics, and the clinics that gave him all those referrals would never shade a date.

          6. If you look at the article Navarro linked to, a huge number of women did not realize they were pregnant and that was a primary reason they sought a late abortionThe female repro system is more erratic and complex than men typically admit when talking about abortion. Many things can hide a pregnancy from the woman experiencing it — continued periods, prior lack of periods, perimenopause, misdiagnosis, lack of change, weight gain/loss for other reasons, and on and on.

            As for being in the minority, I realize that “20weeks is the new consensus about abortion” is the new right-wing talking point this week, all too obvious I’m afraid.

            Finally, with the shutdown of ealryabortiins through Republican “safety regs”, many many more women will be forced by biology into later and later windows for the procedure. When the number of clinics In a state goes from 16 to 1 because of this regulation whcih you would like to have imposed, Brett, you are not “personally ok with early abortion being freely available” as you claim.

          7. Can we just compromise, and adopt Sweden’s abortion laws? Sweden being a liberal welfare state, after all.

            This Texas law is so oppressive, supposedly, and it scarcely approaches the level of abortion regulation in most of Europe. I don’t think abortion advocates want to admit the extent to which judicial protection of abortion has made the US an abortion outlier, and NOT on the restrictive end of the spectrum. Liberal Europe is aghast at our permissive stance regarding late term abortions.

          8. More data on this subject.

            Really, the more you look into this, the more striking it becomes just how permissive by European standards the laws liberals object to in the US really are. It’s amazing what having the Supreme court impose by fiat your maximal position does to your negotiating goals.

          9. Brett,
            Shouldn’t Americans have greater freedom of choice than Europeans? I suspect that’s the argument you’d otherwise make if it was virtually any other topic. For some reason, the desire to control women’s bodies is causing you to disregard principles you otherwise hold dear.

            And your position is stubbornly wedded to the current fad among those who oppose choice by seeking to persuade the Roberts court to chip away at 1973’s SCOTUS decision setting 24 weeks as the appropriate point where the state could step in with restrictions. I’m sure that conservatives are eager to declare “victory” over some hypothetical like that, because I don’t see the court doing so (while admitting the disturbing possibility it might revisit settled case law on the matter), but I don’t see any specific argument that applies and could serve as justification for a number like 20 weeks.

            I also suspect that any differences with the Europeans on abortion restrictions has at its root something other than the obsessive and often otherwise shallow religious convictions that drive opposition to abortion in the US. For instance, given that health care is considered a universal right by most states in that zone, it may have been a determination that allocated resources to the problem of extremely premature births and carefully watched the mother in cases of a threat to her health.

            There is no such safety net in the US for all practical purposes anymore. Should a mother without healthcare and the possibility of financial and other support consider the full range of consequences if she birthed a baby that was understood to be profoundly challenged? The outcome of that evaluation is best left to a woman and her doctor IMO, but it also points out how the conservative concern for the “pre-born” generally ends at birth.

            If you’re really worried about supporting mothers and encouraging them to choose to add to their family, then conservatives need to change their tune on some basic elements of family policy in our starkly unequal society. That would do more good than all the fables told about abortion. But they resist doing so for fear of being seen as “soft” on issues like “personal responsibility,” as if punishing kids for the sins of their fathers and mothers is good public policy.

          10. It’s not the desire to control women’s bodies, it’s the desire to prohibit infanticide. Which is why I don’t give a fart about early abortions, but am outraged by the late. I think the “pro-choice” movement is entirely too supportive of what amounts to infanticide. Sometimes openly, usually just by obstructing anything that would get in the way of it.

            And, yes, 20 weeks is arbitrary. Fetal development is a continuous process, ANY point chosen would be arbitrary.

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