THE ORDEAL OF COLD WATER.
The cold-water ordeal (_judicium aquæ frigidæ_) differed from most of
its congeners in requiring a miracle to convict the accused, as in
the natural order of things he escaped. The preliminary solemnities,
fasting, prayer, and religious rites, were similar to those already
described; holy water sometimes was given to the accused to drink;
the reservoir of water, or pond, was then exorcised with formulas
exhibiting the same combination of faith and impiety, and the accused,
bound with cords, was slowly lowered into it with a rope, to prevent
fraud if guilty, and to save him from drowning if innocent.[1000]
According to Anglo-Saxon rule, the length of rope allowed under water
was an ell and a half;[1001] in one ritual it is directed that a
knot be made in the rope at a distance of a long hair from the body
of the accused, and if he sinks so as to bring the knot down to the
surface of the water, he is cleared;[1002] but in process of time nice
questions arose as to the precise amount of submergence requisite
for acquittal. Towards the close of the twelfth century we find that
some learned doctors insisted that sinking to the very bottom of the
water was indispensable; others decided that if the whole person were
submerged it was sufficient; while others again reasoned that as the
hair was an accident or excrement of the body, it had the privilege
of floating without convicting its owner, if the rest of the body was
satisfactorily covered.[1003]
The basis of this ordeal was the belief, handed down from the primitive
Aryans, that the pure element would not receive into its bosom any one
stained with the crime of a false oath, another form of which is seen
in the ancient superstition that the earth would eject the corpse of a
criminal, and not allow it to remain quietly interred. The manner in
which the church reconciled it to orthodoxy is clearly set forth by
Hincmar: “He who seeks to conceal the truth by a lie will not sink in
the waters over which the voice of the Lord hath thundered; for the
pure nature of water recognizes as impure, and rejects as incompatible,
human nature which, released from falsehood by the waters of baptism,
becomes again infected with untruth.”[1004] The baptism in the Jordan,
the passage of the Red Sea, and the crowning judgment of the Deluge,
were freely adduced in support of this theory, though these latter
were in direct contradiction to it; and the most figurative language
was boldly employed to give some show of probability to the results
expected. Thus, in the elaborate formula which passes under the name
of St. Dunstan, the prayer offered over the water metaphorically
adjures the Supreme Being—“Let not the water receive the body of him
who, released from the weight of goodness, is upborne by the wind of
iniquity!”[1005]
In India the ordeal of cold water became simply one of endurance. The
stream or pond was exorcised with the customary Mantras:—
“Thou O water dwellest in the interior of all things like a witness. O
water thou knowest what mortals do not comprehend.
“This man being arraigned in a cause desires to be cleared from guilt.
Therefore mayest thou deliver him lawfully from this perplexity.”
The patient stood in water up to his middle, facing the East, caught
hold of the thighs of a man “free from friendship or hatred” and dived
under, while simultaneously an arrow of reed without a head was shot
from a bow, 106 fingers’ breadth in length, and if he could remain
under water until the arrow was picked up and brought back, he gained
his cause, but if any portion of him could be seen above the surface
he was condemned. Yajnavalkya says this form of ordeal was only used
on the Sudras, or lowest caste, while the Ayeen Akbery speaks of it
as confined to the Vaisyas, or caste of husbandmen and merchants.
According to the Institutes of Vishnu, it was not to be administered to
the timid or those affected with lung diseases, nor to those who gained
their living by the water, such as fishermen or boatmen, nor was it
allowed during the winter.[1006]
Although, as we have seen (p. 268), the original cold-water ordeal in
India, as described by Manu, was precisely similar to the European
form, inasmuch as the guilty were expected to float and the innocent
to sink, and although in this shape it prevailed everywhere throughout
Europe, and its tenacity of existence rendered it the last to disappear
in the progress of civilization, yet it does not make its appearance in
any of the earlier codes of the Barbarians. The first allusions to it
occur in the ninth century, and it was then so generally regarded as
a novelty that documents almost contemporaneous ascribe its invention
to the popes of that period. One story is that when Leo III. fled in
799 from his rebellious subjects to Charlemagne, and returned to Rome
under the latter’s protection, the cold-water ordeal was introduced
for the purpose of trying the rebels or recovering a treasure which
they had stolen.[1007] Another version asserts that Eugenius II., who
occupied the pontifical throne from 824 to 827, invented it at the
request of Louis le Débonnaire, for the purpose of repressing the
prevalent sin of perjury.[1008] It is further worthy of note that St.
Agobard, Archbishop of Lyons, in his treatises against the judgments
of God, written a few years before the accession of Eugenius, while
enumerating and describing the various methods in use at that time,
says nothing about that of cold water.[1009] But for the evidence of
its pre-existence in the East, we therefore should be justified in
assuming that it was an innovation invented by the Church of the ninth
century. That it was a novelty is proved by the necessity felt to
adduce authority for its use.[1010]
At first, its revival promised to be but temporary. Only a few years
after its introduction it was condemned by Louis le Débonnaire at the
Council of Worms, in 829; its use was strictly prohibited, and the
_missi dominici_ were instructed to see that the order was carried into
effect, regulations which were repeated by the Emperor Lothair, son of
Louis.[1011] These interdictions were of little avail. The ordeal found
favor with popular superstition, and Hincmar contents himself with
remarking that the imperial prohibition was not confirmed by the canons
of authoritative councils.[1012] The trial by cold water spread rapidly
throughout Europe, and by all the continental races it was placed on an
equal footing with the other forms of ordeal. Among the Anglo-Saxons,
indeed, its employment has been called in question by some modern
writers; but the Dooms of Ethelstan sufficiently manifest its existence
in England before the Conquest, while as late as the close of the
twelfth century its use would seem to have been almost universal. The
assizes of Clarendon in 1166, confirmed at Northampton in 1176, direct
an inquest to be held in each shire, and all who are indicted for
murder, robbery, harboring of malefactors, and other felonies are to
be at once, without further trial, passed through the water ordeal to
determine their guilt or innocence.[1013]
As we have seen in the case of the iron ordeal, those of water, both
cold and hot, were variously described as patrician or plebeian in
different times and places. Thus Hincmar, in the ninth century,
alludes to the water ordeals as applicable to persons of servile
condition;[1014] a constitution of the Emperor St. Henry II., about
A. D. 1000, in the Lombard law, has a similar bearing;[1015] in the
eleventh century an Alsatian document,[1016] in the twelfth Glanville’s
treatise on the laws of England,[1017] and in the thirteenth the laws
of Scotland[1018] all assume the same position. This, however, was an
innovation; for in the earliest codes there was no such distinction,
a provision in the Salic law prescribing the _æneum_, or hot-water
ordeal, even for the Antrustions, who constituted the most favored
class in the state.[1019] Nor even in later times was the rule by any
means absolute. In the tenth century, Sanche, Duke of Gascony, desirous
of founding the monastery of Saint Sever, claimed some land which
was necessary for the purpose, and being resisted by the possessor,
the title was decided by reference to the cold-water ordeal.[1020]
In 1027, Welf II., Count of Altorf, ancestor of the great houses of
Guelf in Italy and England, having taken part in the revolt of Conrad
the Younger and Ernest of Suabia, was forced by the Emperor Conrad
the Salic to prove his innocence in this manner.[1021] About the same
period Othlonus relates an incident in which a man of noble birth
accused of theft submitted himself to the cold-water ordeal as a matter
of course;[1022] while in 1068, at the Council of Vich, in Catalonia,
held for the purpose of enforcing the Truce of God, all persons
accused of being directly concerned in its violation are directed to
be tried by the cold-water ordeal in the Church of San Pedro, without
distinction of rank.[1023] Nearly two centuries later, indeed, when
all the vulgar ordeals were falling into disuse, the water ordeal
was established among the nobles of Southern Germany, as the mode of
deciding doubtful claims on fiefs, and in Northern Germany, for the
settlement of conflicting titles to land.[1024]
In 1083, during the deadly struggle between the Empire and the Papacy,
as personified in Henry IV. and Hildebrand, the imperialists related
with great delight that some of the leading prelates of the papal court
submitted the cause of their chief to this ordeal. After a three days’
fast, and proper benediction of the water, they placed in it a boy to
represent the emperor, when to their horror he sank like a stone. On
referring the result to Hildebrand, he ordered a repetition of the
experiment, which was attended with the same result. Then, throwing him
in as a representative of the pope, he obstinately floated during two
trials, in spite of all efforts to force him under the surface, and an
oath was exacted from all concerned to maintain inviolable secrecy as
to the unexpected result.[1025]
Perhaps the most extensive instance of the application of this form of
ordeal was that proposed when the sacred vessels were stolen from the
cathedral church of Laon, as related by a contemporary. At a council
convened on the subject, Master Anselm, the most learned doctor of the
diocese, suggested that, in imitation of the plan adopted by Joshua
at Jericho, a young child should be taken from each parish of the
town and be tried by immersion in consecrated water. From each house
of the parish which should be found guilty, another child should be
chosen to undergo the same process. When the house of the criminal
should thus be discovered, all its inmates should be submitted to the
ordeal, and the author of the sacrilege would thus be revealed. This
plan would have been adopted had not the frightened inhabitants rushed
to the bishop and insisted that the experiment should commence with
those whose access to the church gave them the best opportunity to
perpetrate the theft. Six of these latter were accordingly selected,
among whom was Anselm himself. While in prison awaiting his trial,
he caused himself to be bound hand and foot and placed in a tub full
of water, in which he sank satisfactorily to the bottom, and assured
himself that he should escape. On the day of trial, in the presence of
an immense crowd, in the cathedral which was chosen as the place of
judgment, the first prisoner sank, the second floated, the third sank,
the fourth floated, the fifth sank, and Anselm, who was the sixth,
notwithstanding his previous experiment, obstinately floated, and was
condemned with his accomplices, in spite of his earnest protestations
of innocence.[1026]
Although the cold-water ordeal disappears from the statute-book in
civil and in ordinary criminal actions together with its kindred modes
of purgation, there was one class of cases in which it maintained
its hold upon the popular faith to a much later period. These were
the accusations of sorcery and witchcraft which form so strange a
feature of mediæval and modern society; and its use for this purpose
may apparently be traced to various causes. For such crimes, drowning
was the punishment inflicted by the customs of the Franks, as soon
as they had lost the respect for individual liberty of action which
excluded personal punishments from their original code;[1027] and
in addition to the general belief that the pure element refused to
receive those who were tainted with crime, there was in this special
class of cases a widely spread superstition that adepts in sorcery
and magic lost their specific gravity. Pliny mentions a race of
enchanters on the Euxine who were lighter than water—“eosdem præterea
non posse mergi ne veste quidam degravatos;”[1028] and Stephanus
Byzantinus describes the inhabitants of Thebe as magicians who could
kill with their breath, and floated when thrown into the sea.[1029] To
the concurrence of these notions we may attribute the fact that when
the cold-water ordeal was abandoned, in the thirteenth century, as a
judicial practice in ordinary cases, it still maintained its place as a
special mode of trying those unfortunate persons whom their own folly,
or the malice and fears of their neighbors, pointed out as witches
and sorcerers.[1030] No less than a hundred years after the efforts
of Innocent III. had virtually put an end to all the other forms of
vulgar ordeals, we find Louis Hutin ordering its employment in these
cases.[1031] At length, however, it fell into desuetude, until the
superstitious panic of witchcraft which took possession of the popular
mind caused its revival in the second half of the sixteenth century.
In 1487, Sprenger, while treating of every possible detail concerning
witchcraft and its prosecution, and alluding to the red-hot iron
ordeal, makes no reference whatever to cold water or to the faculty
of floating possessed by witches, thus showing that it had passed
completely out of remembrance as a test in these cases, both popularly
and judicially.[1032] In 1564, Wier discusses it as though it were in
ordinary use in Western Germany, and mentions a recent case wherein
a young girl falsely accused was tested in this manner and floated,
after which she was tortured until the executioner himself wondered at
her power of endurance. As no confession could be extracted, she was
discharged, which shows how little real confidence was reposed in the
ordeal.[1033] Twenty years later, Scribonius, writing in 1583, speaks
of it as a novelty, but Neuwald assures us that for eighteen years
previous it had been generally employed throughout Westphalia,[1034]
and in 1579 Bodin alludes to it as a German fashion which, though he
believes in its efficacy, he yet condemns as savoring of magic.[1035]
The crime was one so difficult to prove judicially, and the ordeal
offered so ready and so satisfactory a solution to the doubts of timid
and conscientious judges, that its resuscitation is not to be wondered
at. The professed demonographers, Bodin, Binsfeld, Godelmann, and
others, opposed its revival for various reasons, but still it did not
lack defenders. In 1583, Scribonius, on a visit to Lemgow, saw three
unfortunates burnt as witches, and three other women, the same day,
exposed to the ordeal on the accusation of those executed. He describes
them as stripped naked, hands and feet bound together, right to left,
and then cast upon the river, where they floated like logs of wood.
Profoundly impressed with the miracle, in a letter to the magistrates
of Lemgow he expresses his warm approbation of the proceeding,
and endeavors to explain its rationale, and to defend it against
unbelievers. Sorcerers, from their intercourse with Satan, partake of
his nature; he resides within them, and their human attributes become
altered to his; he is an imponderable spirit of air, and therefore they
likewise become lighter than water. Two years later, Hermann Neuwald
published a tract in answer to this, gravely confuting the arguments
advanced by Scribonius, who, in 1588, returned to the attack with a
larger and more elaborate treatise in favor of the ordeal. Shortly
after this, Bishop Binsfeld, in his exhaustive work on witchcraft,
states that the process was one in common use throughout Westphalia,
and occasionally employed in the Rhinelands. He condemns it, however,
on the score of superstition, and the prohibition of all ordeals by
the popes, and concludes that any judge making use of it, or any one
believing in it, is guilty of mortal sin. Rejecting the explanation
of Scribonius, he argues that the floating of the witch is caused
by the direct interposition of the Devil himself, who is willing to
sacrifice a follower occasionally in order to damn the souls of those
who participate in a practice condemned by the Church.[1036] Wier,
who denied witchcraft, while believing in the active interposition
of the Devil, argues likewise that those who float are borne up by
demons, but he attributes it to their desire to confirm the popular
illusions concerning witchcraft.[1037] Another demonographer of the
period, Godelmann, does not hesitate to say that any judge resorting
to this mode of proof rendered himself liable to a retaliatory action;
and he substantiates his opinion as to the worthlessness of the trial
by a case within his own experience. In 1588 he was travelling from
Prussia to Livonia, when at the castle of a great potentate his host
happened to mention that he had condemned a most wicked witch to be
burnt the next day. Godelmann, desirous to know whether the proof
could be relied on, asked whether the water ordeal had been tried,
and on being answered in the negative, urged the experiment. His
request was granted, and the witch sank like a stone. Subsequently the
noble wrote to him that he had tried it with six other indubitable
witches, and that it had failed with all, showing that it was a false
indication, which might deceive incautious judges.[1038] Oldenkop, on
the other hand, relates that he was present when some suspected women
were tried in this manner, who all floated, after which one of the
spectators, wholly innocent of the crime, to satisfy the curiosity of
some nobles who were present, allowed himself for hire to be tied and
thrown in, when he likewise floated and could not be made to sink by
all the efforts of the officiating executioner.[1039] In 1594, a more
authoritative combatant entered the arena—Jacob Rickius, a learned
jurisconsult of Cologne, who, as judge in the court of Bonn, had ample
opportunity of considering the question and of putting his convictions
into practice. He describes vividly the perplexities of the judges
hesitating between the enormity of the crime and the worthlessness of
the evidence, and his elaborate discussions of all the arguments in
favor of the ordeal may be condensed into this: that the offence is
so difficult of proof that there is no other certain evidence than
the ordeal; that without it we should be destitute of absolute proof,
which would be an admission of the superiority of the Devil over
God, and that anything would be preferable to such a conclusion. He
states that he never administered it when the evidence without it was
sufficient for conviction, nor when there was not enough other proof to
justify the use of torture; and that in all cases it was employed as a
prelude to torture—“præparandum et muniendum torturæ viam”—the latter
being frequently powerless in consequence of diabolical influences.
The deplorable examples which he details with much complacency as
irrefragable proofs of his positions show how frequent and how
murderous were the cases of its employment, but would occupy too much
space for recapitulation here; while the learning displayed in his
constant citations from the Scriptures, the Fathers, the Roman and the
Canon Law, is in curious contrast with the fatuous cruelty of his acts
and doctrines.
In France, the central power had to be invoked to put an end to the
atrocity of such proceedings. In 1588, an appeal was taken to the
supreme tribunal from a sentence pronounced by a Champenois court,
ordering a prisoner to undergo the experiment, and the Parlement, in
December, 1601, registered a formal decree against the practice; an
order which it found necessary to repeat, August 10, 1641.[1040] That
this latter was not uncalled for, we may assume from the testimony of
Jerôme Bignon, who, writing nearly at the same time, says that, to
his own knowledge, within a few years, judges were in the habit of
elucidating doubtful cases in this manner.[1041] In England, James I.
gratified at once his conceit and his superstition by eulogizing the
ordeal as an infallible proof in such cases. His argument was the old
one, which pronounced that the pure element would not receive those who
had renounced the privileges of the water of baptism,[1042] and his
authority no doubt gave encouragement to innumerable judicial murders.
In Scotland, indeed, the indecency of stripping women naked for the
immersion was avoided by wrapping them up in a sheet before binding
the thumbs and toes together, but a portion of the Bay of St. Andrews
is still called the “Witch Pool,” from its use in the trial of these
unfortunates.[1043]
How slowly the belief was eradicated from the minds of even the
educated and enlightened may be seen in a learned inaugural thesis
presented by J. P. Lang, in 1661, for the Licentiate of Laws in the
University of Bâle, in which, discussing incidentally the question
of the cold-water ordeal for witches, he concludes that perhaps
it is better to abstain from it, though he cannot question its
efficaciousness as a means of investigation.[1044] In 1662, N. Brant,
in a similar thesis, offered at Giessen, speaks of it as used in some
places, chiefly in Westphalia, and argues against it on the ground
of its uncertainty.[1045] P. Burgmeister, in a thesis presented at
Ulm in 1680, speaks of the practice as still continued in Westphalia,
and that it was defended by many learned men, from whose opinions he
dissents; among them was Hermann Conring, one of the most distinguished
scholars of the time, who argued that if prayers and oaths could obtain
the divine interposition, it could reasonably be expected in judicial
cases of importance.[1046] Towards the close of the century it was
frequently practised in Burgundy, not as a judicial process, but when
persons popularly reputed as sorcerers desired to free themselves from
the damaging imputation. In these cases they are frequently reported
as floating in spite of repeated efforts to submerge them, and though
this evidence of guilt did not lead to a formal trial they would have
to abandon the neighborhood. A notarial act of June 5, 1696, records
such a trial at Montigny-le-Roi, when six persons offered themselves
to the ordeal in the River Senin; two sank and four floated for
about half an hour, with hands and feet tied.[1047] F. M. Brahm, in
1701, alludes to the ordeal as no longer in use;[1048] but in 1714,
J. C. Nehring describes it as nearly, though not quite obsolete, and
considers it worthy of an elaborate discussion. He disapproves of it,
though he records a case which occurred a few years previously, in
which a woman accused of witchcraft managed to escape from her chains,
and went into the water to try herself, and could not be submerged.
Notwithstanding this he declares that even when a prisoner demands the
ordeal, the judge who grants it is guilty of mortal sin, for the Devil
often promises witches to save them in this manner, and, though he very
rarely keeps his promise, still he thus succeeds in retaining men in
superstitious observances. The success of the ordeal thus is uncertain,
and his conclusion is that laws must be made for the generality of
cases, and not for exceptional ones.[1049] In 1730 thirteen persons
were exposed to the cold-water ordeal at Szegedin, in Hungary, and
though their guilt was proved by it, any remaining doubts were settled
by submitting them to the balance;[1050] and five years later Ephraim
Gerhardt alludes to it as everywhere in daily use in such cases.[1051]
Even in the middle of the century, the learned and pious Muratori
affirms his reverent belief in the miraculous convictions recorded by
the mediæval writers as wrought in this manner by the judgment of God;
and he further informs us that it was common in his time throughout
Transylvania, where witches were very numerous;[1052] while in West
Prussia, as late as 1745, the Synod of Culm describes it as a popular
abuse in frequent use, and stringently forbids it for the future.[1053]
Although, within the last hundred years, the cold-water ordeal has
disappeared from the authorized legal procedures of Europe, still the
popular mind has not as yet altogether overcome the superstitions and
prejudices of so many ages, and occasionally in some benighted spot
a case occurs to show us that mediæval ignorance and brutality still
linger amid the triumphs of modern civilization. In 1815 and 1816,
Belgium was disgraced by trials of the kind performed on unfortunates
suspected of witchcraft;[1054] and in 1836, the populace of Hela,
near Dantzic, twice plunged into the sea an old woman reputed to be a
sorceress, and as the miserable creature persisted in rising to the
surface, she was pronounced guilty, and was beaten to death.[1055] Even
in England it is not many years since a party of credulous people were
prosecuted for employing the water ordeal in the trial of a woman whom
they believed to be a witch.[1056]
In Montenegro and Herzegovina the practice continued till the middle of
the present century. Any unusual mortality of children was attributed
to sorcery by women: in such cases the head of a village assembled
all the men and exhorted them to bring next morning their wives and
mothers to the nearest water—a lake or a river, or if necessary a well.
The women were then examined one by one, by passing a rope under the
arms and tossing them in, without divesting them of their clothes.
Those who were so ill-advised as not to sink were pronounced guilty,
and were liable to lapidation if they would not swear to abandon their
evil practices. The belief even extended to the dominant Turks who, in
1857 at Trebinje, compelled the Christians to bring all their women to
the river and cast them in. Buoyed up by their garments seven floated,
and these were only saved from stoning by the archimandrite Eustache,
who administered to them a solemn oath of abstinence from witchcraft.
Austrian domination has rendered all such proceedings unlawful of
late years, but in the remoter districts they are said to be still
occasionally practised.[1057]
Perhaps we may class as a remnant of this superstition a custom
described by a modern traveller as universal in Southern Russia. When
a theft is committed in a household, the servants are assembled, and
a sorceress, or _vorogeia_, is sent for. Dread of what is to follow
generally extorts a confession from the guilty party without further
proceedings, but if not, the _vorogeia_ places on the table a vase of
water and rolls up as many little balls of bread as there are suspected
persons present. Then, taking one of the balls, she addresses the
nearest servant—“If you have committed the theft, this ball will sink
to the bottom of the vase, as will your soul in Hell; but if you are
innocent, it will float on the water.” The truth or falsehood of this
assertion is never tested, for the criminal invariably confesses before
his turn arrives to undergo the ordeal.[1058]