Adam Benforado - Unfair: The New Science of Criminal Injustice

The water in the vat was untroubled and deep.

It had been prepared earlier for the brothers, Clement and Evrard. But they were still in the church, standing in front of the assembly, waiting like stalks for a breeze.

It was the winter of the year 1114. The days were getting shorter; the rain was coming to northern France. Clement and Evrard, who were peasants, lived in the small village of Bucy, a few miles east of Soissons.

The charge was heresy. That is why they now shifted barefoot before Bishop Lisiard, Abbot Guibert, and all the rest. But the brothers were not the type of heretics who openly defended their false faithwho, though poison-tongued and cancerous, wore their treachery on their faces. No, they were emissaries of the evil that spreads secretly, the evil that was condemned to everlasting whispersa snake slipping through cracks in the community wall, striking feeble and unwary minds. Into idle ears these heretics spewed their wickedness: Jesus birth was not divine at all, marriage was a farce, baptisms of young children were void. And in the shadows, with their bodies, they breached the laws of God and man.

As Abbot Guibert recorded, they did not set apart their cemeteries as sacred ground, refused to eat food produced by sexual generation, practiced homosexuality, and engaged in perverse rituals. Indeed, rumor had it that their religious meetings were held in underground vaults or secret cobwebby places where wild orgies took place and where any child conceived in the chaos was then made into bread and eaten as a sacrament.

Such were the men brought before Bishop Lisiard to answer for their crimes.

The brothers had been betrayed by their neighbors: a woman Clement had purportedly been brainwashing for months, driving her mad, and a deacon who had heard Clement make statements against the Church.

But these accusers now failed to appear. And when questioned by the lord bishop and Abbot Guibert, the men gave most Christian answers and denied the charges against them, which presented a problem endemic to all systems of justice: a strong suspicion of guilt without solid evidence.

In twelfth-century France, however, there was a ready solution.

Following the celebration of Mass, the lord bishop and Archdeacon Pierre led Clement and Evrard to the vat. As they appeared before the water, the lord bishop spoke out the litany and delivered the exorcism. Tears rolled down his face. And Clement and Evrard, seemingly moved, gave an oath that they were not heretics and had never followed, nor taught, gospel contrary to the faith.

It was at this moment that Clement was thrown into the water.

This was not some ritual cleansing. This was the critical moment in the adjudicatory proceedings and the most important moment in Clements life. This was the trialthe ordeal of exorcised waterand it all came down to buoyancy. Would Clement bob on the surface, or would he sink like a sack of stones?

As the ninth-century theologian Hincmar of Rheims explained, the man who seeks to hide the truth by a lie, cannot be submerged in the waters above which the voice of the Lord God has thundered. Baptismal water was pure and would naturally reject the bodies of those who were infected by falsehood. Murders, adulterers, and heretics would float; innocents would be enveloped.

An accused person like Clement would generally have been stripped of his clothes and bound with cords before being pushed into the pool. According to Hincmar, the reason was twofold: first, to prevent the guilty man from cheating justice by placing weights in his clothes or pulling himself under, and, second, to allow the innocent man to be quickly drawn up before he drowned. In some versions of the trial, the accused needed to sink to a certain distanceto the length of the hair on his head, for examplewith a knot tied in the rope to assist with measuring.

In Clements case, though, no knot was needed. All could see. He floated like a stick.

To the men, women, and children who gathered at Soissons, this ordeal was no travesty: this was true, fair justice. Here were the most esteemed and respected members of societycornerstones of the religious hierarchypresiding over the ordeal as part of the official sacred Mass. And here was a neutral process that seemed to avoid the biases that came from other potential means of deciding cases. Witnesses could lie and judges could bow to political pressures, but Gods judgment was true and incorruptible. In an era in which the divine permeated every aspect of life, the various hot and cold ordealsfishing a ring out of a boiling cauldron, carrying an iron straight from the fire, or being plunged into a vat of waterwould have seemed quite rational and quite fair.

To achieve the proper result, all-seeing God, who controlled the natural elements, would direct those elements to behave in an unusual manner: hot iron would fail to burn the innocent hand; cold water would prevent the guilty from sinking. So, if you did sink, that was an answer the community could accept. With no dominant governmental authority to manage the conflicts of the scattered small communities of Europe through much of the Middle Ages, the legitimacy of human action in matters of law was always contestable. But godly action was not.

Moreover, with an ordeal like Clements, the righteousness of the judgment was available for all to see and immediately understandable to a largely illiterate society. For people seeking orderand consensusin a disordered world, and justice in an unjust time, the ordeal would have seemed a blessing: not only acceptable but the best possible way to settle disputes and clear up mysteries. How else might a community assess concealed guilt when hard proofconcrete evidence, reliable witnesseswas lacking? There was no apparent alternative.