Europe's inner demons

The intention behind the talion was simply to discourage malicious or frivolous accusations, but the effect was far more sweeping. How was the law to distinguish between a mere mistake and deliberate calumny? In practice it seldom distinguished; everyone knew that an unsuccessful complainant would almost certainly be penalized, whatever his motives. In England, under Edward I, it was decreed that an accuser who failed to make out his case should be imprisoned for a year as well as pay compensation for the imprisonment and infamy he had brought upon the accused; and this provision was altogether in keeping with a tradition which went back to Anglo-Saxon times.⁽⁵⁸⁾

Everything possible was done to impress the would-be accuser with the risks involved. When notifying the judge of the proposed action, the accuser had to give a written undertaking to provide proof and, if the proof were found inadequate, to submit to the penalty of the talion as a calumniator. This inscription was an indispensable preliminary; no criminal case could proceed without it. And that was not all: once the inscription had been accepted by the judge, the accuser could not withdraw without incurring the penalty of the talion. Indeed, even while the action was in progress the accuser might, in effect, be penalized: in those cases where the accused was imprisoned pending trial, the judge commonly ordered the accuser to be imprisoned likewise, to preserve equality between the two parties.⁽⁵⁹⁾

In order to condemn the accused outright, the judge required either a spontaneous confession from him or else an array of proofs which should be “clearer than the noonday light”. Failing these, he would order the accused to submit to an ordeal. The ordeal, which originated not in Roman but in early Germanic law, could take various forms. The accused might be thrown into the water, bound in a certain way. If he or she floated it meant that the water, that symbol of purity, was rejecting a criminal; sinking was therefore taken as proof of innocence. Or the accused might be required to hold a red-hot iron, or plunge an arm into boiling water, for a given time. The injured limb was then bound up for a few days; if, when the bandage was removed, no scar was found, that too was proof of innocence. These ordeals were applied chiefly to members of the lower orders. Amongst the aristocracy the matter was more likely to be submitted to the test of single combat, either between the accuser and the accused or between champions representing them. All these various ordeals were regarded as appeals to God: where the human judge was uncertain, the decision was left to divine justice. But by the thirteenth century these ancient forms of ordeal were being replaced by another device, canonical purgation: the accused was required to swear before God that he was innocent, while a specified number of compurgators, or oath-helpers, swore that his oath was to be trusted.

An ordeal successfully endured, a canonical purgation successfully discharged, would bring acquittal; and in that case the accuser was required to prove that his accusation had been due to an honest mistake. If he was unable to carry out this almost impossible task, nothing could save him from the talion. The results of the system were what one would expect: nobody would become an accuser unless impelled by the most powerful motives. Only the most imperious considerations of self-interest or the most obsessive passion would induce anyone to face a long-drawn-out and highly uncertain action, which while it was in progress might involve his own imprisonment and which might end in his ruin. This was the case even when the offence in question was an ordinary felony: historians of medieval law tend to think that, so long as the accusatory procedure remained in force, only a tiny proportion of common criminals were ever brought to trial. But the inhibiting factors must have been vastly more powerful still when the offence was maleficium, whether real or imagined.