Late Roman Military Justice and the Birth of Ordeal

What is it about?

During the first centuries of the Roman Empire, the army recruited mostly citizens, even if newly-branded ones. The conflicts between soldiers and citizens were judged according to the rules of the ius militare. But in the 4th century, the barbarians formed the main part of the crack-troops, the palatini. Cases involving a barbarian soldier and a Roman civilian were harder to judge. Apart from military discipline and public order, the dediticii had their own custom, and such a litigation did not deserve much attention by the high command, and even less by the imperial scrinia. The litigation thus escaped archives and conservation, it was a matter of day-to-day practice. We have to cope with popular sources in order to grasp what it was, for example the curse-tablets of Trier. One of them deals with a charge of lèse-Majesté raised against a barbarian soldier, an Irishman, by a so-called Eusebius. Both parties may have sworn the iuramentum calumniae. In a civil case, the judge would test the truth of the defendant’s oath by the usual proof, confessio after torture; if the defendant stayed firm, the judge would then test the accusing party. But to torture soldiers was not a good thing to do for a military judge. At the end of the 4th century, the high command, likely that of the pagan Arbogast, decided the revival of an ancient Celtic proof by divine intervention, mixed with torture since the soldier’s body, if the man was lying, or supposed to, would endure the immediate wrath of the god. The medieval ordeal was a creation of the « barbarians » of the Roman empire.

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