Late Roman Military Justice and the Birth of Ordeal

Soazick Kerneis

Abstract

Iustitia est constans et perpetua voluntas ius suum cuique tribuendi. Justice at Rome must guarantee citizen’s freedom. However the situation is quite different in the military area and some popular sources enlighten the judicial proceedings applied to soldiers. At the end of the 1st century, the tablets of Vindolanda point out the severity of the discipline allowing corporal punishments. In the late Empire, the libertas of the citizen gives way to the majesty of the judge and the tribunal tends to become a place of torture. Because the judgment is supposed to say the truth, the judge tries to get the confession and the question becomes general. If no dignity spares anymore the civilian litigant, soldiers are by contrast still exempted of the torture. A set of curse tablets found in Trier and dating back to the end of the 4th century show that military judicial practice has circumvented this obstacle by setting up an original application of torture. Since the military judge is still supposed to say the truth, the technic of investigation takes a particular form. While the civilian litigant endures the torture of the nails, the barbarian one has to cope with the test of the cauldron. This is the very first application of the ordeal in the ancient Europe and it is an invention of the Roman army. (Agosto 2023) 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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Chapter 16 Late Roman Military Justice and the Birth of Ordeal

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The Civilian Legacy of the Roman Army

Military Models in the Post-Roman World

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Chapter 16 Late Roman Military Justice and the Birth of Ordeal

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The Civilian Legacy of the Roman Army

Military Models in the Post-Roman World

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