CONDITIONS OF THE ORDEAL.
The ordeal was thoroughly and completely a judicial process, ordained
by the law for certain cases, and carried out by the tribunals as
a regular form of ordinary procedure. From the earliest times, the
accused who was ordered to undergo the trial was compelled to submit to
it, as to any other decree of court. Thus, by the Salic law, a recusant
was summoned to the royal court; and if still contumacious, he was
outlawed and his property confiscated, as was customary in all cases
of contempt.[1208] The directions of the codes, as we have seen, are
generally precise, and admit of no alternative.[1209] Occasionally,
however, a privilege of selection was afforded between this and
other modes of compurgation, and also between the various forms of
ordeal.[1210]
There was, however, a remarkable exception to this enforcement of the
ordeal in a provision existing in some codes by which a man condemned
to it could buy himself off by compounding with his adversary. This
mode of adjustment was not extensively introduced, but it nevertheless
existed among the Anglo-Saxons,[1211] while among the Franks it was a
settled custom, permitted by all the texts of the Salic law, from the
earliest to the latest.[1212] By this a person condemned by the court
to undergo the ordeal could, by a transaction with the aggrieved party,
purchase the privilege of clearing himself by canonical purgation,
and thus escape the severer trial. He was bound to pay his accuser
only a portion of the fine which he would incur if proved guilty—a
portion varying with different offences from one-fourth to one-sixth
of the _wer-gild_. The interests of the tribunal were guarded by a
clause which compelled him to pay to the _grafio_, or judge, the full
_fredum_, or public fine, if his conscience impelled him to submit
to an arrangement for more than the legal percentage. Even as late
as 1229, by the Bohemian laws of Ottokar Premislas the accused could
escape the ordeal by paying seven deniers to the seigneur.[1213]
The circumstances under which its employment was ordered varied
considerably with the varying legislations of races and epochs; and to
enter minutely into the question of the power of the court to decree
it, or the right to demand it by the appellant or the defendant, would
require too much space, especially as this has already been discussed
at some length with regard to one of its forms, the wager of battle.
In India, the accused was required to undergo the risk of a fine if
he desired to force his adversary to the ordeal; but either party
could voluntarily undertake it, in which case the other was subject to
a mulct if defeated.[1214] The character of the defendant, however,
had an important bearing upon its employment. If he had already been
convicted of a crime or of perjury he was subject to it in all cases,
however trifling; if, on the other hand, he was a man of unblemished
reputation, he was not to be exposed to it, however important was the
case.[1215] In civil cases, however, it apparently was only employed
to supplement deficient evidence.—“Evidence consists of writings,
possession, and witnesses. If one of these is wanting, then one of the
ordeals is valid.”[1216]
In Europe there appears at times to have been a custom under which,
when the accused had escaped in the ordeal, the accuser was obliged to
undergo it. Thus in the Frisian law, when a man accused of theft proved
his innocence by the ordeal, the accuser was then obliged to clear
himself of the charge of perjury by a similar trial,[1217] but the
law fails to define what are their respective positions if the second
ordeal proves likewise innocuous. In the case of bier-right quoted
above from Scott’s Border Minstrelsy, this secondary ordeal seems to
have been to prove whether the accuser herself was not the guilty
person. In the heroic poems of the Elder Edda a similar trial appears
to be resorted to, as in the Frisian laws, only for the purpose of
showing the false witness borne by the accuser. When Gudrun the wife of
Atli is defamed as an adulteress by the concubine Herkia, and is forced
to the ordeal—
She to the bottom plunged
Her snow-white hand,
And up she drew
The precious stones.
“See now, ye men,
I am proved guiltless
In holy wise,
Boil the vessel as it may.”
Laughed then Atli’s
Heart within his breast
When he unscathed beheld
The hand of Gudrun.
“Now must Herkia
To the cauldron go,
She who Gudrun
Had hoped to injure.”
No one has misery seen
Who saw not that,
How the hand there
Of Herkia was hurt.
They then the woman led
To a foul slough.
So were Gudrun’s
Wrongs avenged.[1218]
Churchmen held that if the accused escaped in the ordeal the accuser
was guilty of perjury and homicide and must atone for it by public
penitence.[1219]
The absence of satisfactory testimony, rendering the case one not to
be solved by human means alone is frequently, as in India, alluded to
as a necessary element;[1220] and indeed we may almost assert that
this was so, even when not specifically mentioned, as far as regards
the discretion of the tribunal to order an appeal to the judgment of
God. Yet there were some exceptions to this, as in the early Russian
legislation, where the ordeal is prescribed for the accused in all
cases in which the accusation is substantiated by testimony;[1221]
and a law of King Ethelred seems to indicate that the plaintiff might
require his adversary to submit to it,[1222] while numerous examples
among those cited above authorize the conclusion that an offer on
the part of the accused was rarely refused, even when there was
strong evidence against him,[1223] though this laxity of practice was
occasionally objected to stoutly.[1224] When the custom was declining,
indeed, a disposition existed to require the assent of both parties
before the tribunal would allow a case to be thus decided.[1225] In
civil cases, we may assume that absence of testimony, or the consent of
both parties, was requisite to its employment.[1226]
The comfort which the system must have afforded to indolent judges
in doubtful cases is well exhibited by a rule in various ancient
codes, by which a man suspected of crime, even though no accuser came
forward, was thrown into prison and kept there until he could prove
his innocence by the ordeal of water.[1227] No testimony was required
save that of evil repute. Thus in Hungary, in the eleventh century, a
man who was regarded as a thief by the whole village was subjected to
the ordeal: if he was cleared, he paid the fee to the priest; if he
was convicted, all his property was confiscated.[1228] This, in fact,
was virtually the process adopted and systematized in England by the
Assizes of Clarendon in 1166. The grand jury was directed to present
all persons suspected of robbery, murder, theft, etc., when they were
promptly sent to the water ordeal to prove their innocence.[1229] Thus
it afforded an unfailing solution to all doubts and simplified greatly
the administration of criminal law, for it was equally applicable
to cases of individual prosecutions. In 1201, for instance, a widow
accuses a man of the murder of her husband and the court rejects her
appeal because it does not state that she saw the deed, but as the
jurors when interrogated say that the accused is suspected of the
crime, he is ordered at once to the ordeal.[1230]
We have seen above occasional instances in which the accuser or
plaintiff offered to substantiate his veracity by an appeal to the
ordeal. This was an established rule with regard to the wager of
battle, but not as respects the other forms of the judgment of God,
which were regarded rather as means of defence than of attack. Still
there are occasional instances of instructions for their employment by
the accusing party. In the primitive laws of Russia, an accuser who
could not substantiate his case with witnesses was obliged to undergo
the ordeal of red-hot iron.[1231] In England it seems to have been
within the discretion of the court to order it for either the accuser
or the accused. A very singular case is recorded in 1202, in which
Astin of Wispington accused Simon of Edlington of assaulting him and
putting out an eye, when the court adjudged the red-hot iron ordeal and
gave to the defendant the option whether he or the prosecutor should
undergo it; Simon naturally preferred that his antagonist should try
the dangerous experiment, and the result was that the case was settled
without it.[1232] We have already seen (p. 385) that in some places
where the accused succeeded in clearing himself by the ordeal the
accuser was obliged to undergo it in order to determine the question of
his perjury.
Sometimes the ordeal was employed in connection with compurgation,
both for prosecution and defence, to supplement the notorious
imperfections of that procedure. Thus Archbishop Hincmar directs
that cases of complaint against priests for dissolute life shall be
supported by seven witnesses, of whom one must submit to the ordeal
to prove the truth of his companions’ oaths, as a wholesome check
upon perjury and subornation.[1233] With a similar object, the same
prelate likewise enjoins it on compurgators chosen by the accused, on
his failing to obtain the support of those who had been selected for
him by his judge.[1234] Allied to this was a rule for its employment
which was extensively adopted, allowing the accused the privilege
of compurgation with conjurators in certain cases, only requiring
him to submit to the ordeal on his failing to procure the requisite
number of sponsors. Thus, in 794, a certain Bishop Peter, who was
condemned by the Synod of Frankfort to clear himself, with two or
three conjurators, of the suspicion of complicity in a conspiracy
against Charlemagne, being unable to obtain them, one of his vassals
offered to pass through the ordeal in his behalf, and on his success
the bishop was reinstated.[1235] That this was strictly in accordance
with usage is shown by a very early text of the Salic Law,[1236] as
well as by a similar provision in the Ripuarian code.[1237] Among
the Anglo-Saxons it likewise obtained, from the time of the earliest
allusion to the ordeal occurring in their jurisprudence, down to
the period of the Conquest.[1238] Somewhat similar in tendency was
a regulation of Frederic Barbarossa, by which a slave suspected of
theft was exposed to the red-hot iron unless his master would release
him by an oath.[1239] Occasionally it was also resorted to when the
accused was outsworn after having endeavored to defend himself by his
oath or by conjurators. Thus a canon of the Council of Tribur in 895
declares that if a man is so generally suspected that he is outsworn
in compurgation, he must either confess or submit to the hot-iron
ordeal.[1240] Popular belief evidently might give to the accuser a
larger number of men willing to associate themselves in the oath of
accusation than the defendant could find to join him in rebutting it,
and yet his guilt might not as yet be clear. In such cases, the ordeal
was a most convenient resort.
These regulations give to the ordeal decidedly the aspect of
punishment, as it was thus inflicted on those whose guilt was so
generally credited that they could not find comrades to stand up with
them at the altar as partakers in their oath of denial; and this is not
the only circumstance which leads us to believe that it was frequently
so regarded. This notion is visible in the ancient Indian law, where,
as we have seen, certain of the ordeals—those of red-hot iron, poison,
and the balance—could not be employed unless the matter at stake were
equivalent to the value of a thousand pieces of silver, or involved
an offence against the king;[1241] and it reappears in Europe in the
graduated scale of single and triple ordeals for offences of different
magnitudes. Such a scheme is so totally at variance with the theory of
miraculous interposition to protect innocence and punish guilt, that
we can only look upon it as a mode of inflicting graduated punishments
in doubtful cases, thus holding up a certain penalty _in terrorem_
over those who would otherwise hope to escape by the secrecy of their
crime—no doubt with a comforting conviction, like that of Legate
Arnaud at the sack of Béziers, that God would know his own. This same
principle is visible in a provision of the charter of Loudun, granted
by Louis le Gros in 1128, by which an assault committed outside of the
liberties of the commune could be disproved by a simple sacramental
oath; but if within the limits of the commune, the accused was obliged
to undergo the ordeal.[1242] In another shape we see it in the customs
of Tournay, granted by Philip Augustus in 1187, where a person accused
of assault with sharpened weapons, if there were no witnesses, was
allowed to purge himself with six conjurators if the affair occurred
in the daytime, but if at night, was obliged to undergo the water
ordeal.[1243] Further illustration is afforded by the principle,
interwoven in various codes, by which a first crime was defensible by
conjurators, or other means, while the _tiht-bysig_ man, the _homo
infamatus_, one of evil repute, whose character had been previously
compromised, was denied this privilege, and was forced at once to the
hot iron or the water. Thus, among the Anglo-Saxons, in the earliest
allusion to the ordeal, by Edward the Elder, it is provided that
perjured persons, or those who had once been convicted, should not be
deemed thereafter oath-worthy, but should be hurried to the ordeal; a
regulation repeated with some variations in the laws of Ethelred, Cnut,
and Henry I.[1244] The Carlovingian legislation establishes a similar
principle,[1245] while the canons of Burckhardt show it to be still in
force in the eleventh century.[1246] A hundred and fifty years later,
the legislation of Flanders manifests the same tendency, the code
granted to Bruges in 1190 providing that a first accusation of theft
should be decided by witnesses, while a second was to be met by the
cold-water ordeal.[1247] In the German municipal law of the thirteenth
century, the same principle is observable. A man who had forfeited
his legal privileges by conviction for theft or similar crimes was
no longer admitted to the oath, but on subsequent accusations was
compelled to choose between the hot iron, the cauldron, and a combat
with a champion; and similarly an officer of the mint issuing false
money was permitted the first time to swear to his ignorance, but on a
second offence he had to submit to the ordeal. In the codes in force
throughout Germany, indeed, previous suspicion was sufficient to send
the accused to the ordeal in place of the oath.[1248] The contemporary
jurisprudence of Spain has a somewhat similar provision, by which a
woman accused of homicide could not be exposed to the ordeal unless
she could be proved utterly abandoned, for which a curious standard
was requisite;[1249] while for more serious crimes, such as sorcery
or killing her husband, she was forced at once to the red-hot iron to
prove her innocence. In the legislation of Charlemagne there is an
elaborate provision, by which a man convicted seven times of theft was
no longer allowed to escape on payment of a fine, but was required to
undergo the ordeal of fire. If he succumbed, he was put to death; if
he escaped unhurt, he was not discharged as innocent, but his lord was
allowed to enter bail for his future good behavior[1250]—a mode at once
of administering punishment and of ascertaining whether his death would
be agreeable to Heaven. When we thus regard it as a penalty on those
who by misconduct had forfeited the confidence of their fellow-men, the
system loses part of its absurdity, in proportion as it departs from
the principle under which it was established.
There is also another aspect in which it is probable that the ordeal
was viewed by those whose common sense must have shrunk from it as a
simple appeal to the judgment of God. There can be little doubt that
it was frequently found of material use in extorting confession or
unwilling testimony. By the early codes, as in the primitive Greek and
Roman law, torture could be applied only to slaves, and the ordeal was
a legalized torture, applied under circumstances peculiarly provocative
of truth, and as such we occasionally find regulations which enable
the freeman to escape by compurgation, while the slave is required to
undergo the ordeal.[1251] The elaborate nature of the ritual employed,
with its impressive adjurations and exorcisms, was well fitted to
excite the imagination and alarm the conscience; sometimes, indeed,
to render it more effective, the mass celebrated was a mortuary one,
which when sung for a living man was popularly believed to possess
deadly powers of peculiar efficacy.[1252] In those ages of faith,
the professing Christian, conscious of guilt, must indeed have been
hardened who could undergo these awful rites, pledging his salvation
on his innocence, and knowing under such circumstances that the direct
intervention of Heaven could alone save him from having his hand boiled
to rags,[1253] after which he was to meet the full punishment of his
crime, and perhaps in addition lose a member for the perjury committed.
With such a prospect, all motives would conspire to lead him to a
prompt and frank acknowledgment in the early stages of the proceedings
against him. These views are strengthened by the fact that when, in
the thirteenth century, the judicial use of torture, as a means of
obtaining testimony and confession, was becoming systematized and
generally employed, the ordeal was falling into desuetude and rapidly
disappearing. The latter had fulfilled its mission, and the former was
a substitute better fitted for an age which reasoned more, believed
less, and at the same time was quite as arbitrary and cruel as its
predecessor. A further confirmation of this supposition is afforded by
the coincidence that the only primitive jurisprudence which excluded
the ordeal—that of the Wisigoths—was likewise the only one which
habitually permitted the use of torture,[1254] the only reference to
the ordeal in their code being a provision which directs its employment
as a preliminary to the more regular forms of torture.
In fact, the ordeal was practically looked upon as a torture by those
whose enlightenment led them to regard as a superstition the faith
popularly reposed in it. An epistle which is attributed both to Stephen
V. and Sylvester II. condemns the whole system on the ground that the
canons forbid the extortion of confessions by heated irons and boiling
water; and that a credulous belief could not be allowed to sanction
that which was not permitted by the fathers.[1255] When, therefore,
at the Council of St. Baseul, a priest named Adalger, in confessing
the assistance he had rendered to Arnoul of Reims during Charles of
Lorraine’s resistance to the usurpation of Hugh Capet, offered to
substantiate his testimony by undergoing the ordeal, he did it in terms
which show that he expected it to be regarded as a torture giving
additional weight to evidence—“If any of you doubt this and deem me
unworthy of belief, let him believe the fire, the boiling water, the
glowing iron. Let these tortures convince those who disbelieve my
words.”[1256] It is observable that he omits the cold-water as not
being a torture, just as in the ancient Indian law the limitation
referred to above as applicable to the red-hot iron, the poison, and
the balance, did not apply to the cold-water ordeal, or to that in
which was administered the water in which an idol had been dipped.[1257]
In the same way, some among the European ordeals, such as that of the
Eucharist, of bread and cheese, and bier-right, do not come within the
class of tortures, but they addressed themselves powerfully to the
conscience and imagination of the accused, whose callous fortitude no
doubt often gave way under the trial. In our own country, and almost
within our own time, the latter ordeal was revived in one instance
with this object, and the result did not disappoint the expectations
of those who undertook it. In the case of People _vs._ Johnson, tried
in New York in 1824, the suspected murderer was led from his cell to
the hospital where lay the body of the victim, which he was required
to touch. Dissimulation which had been before unshaken failed him at
the awful moment; his overstrung nerves gave way, and a confession was
faltered forth. The proceeding was sustained by court, and a subsequent
attempt at retraction was overruled.[1258] The powerful influence of
such feelings is shown in a custom which, as recently as 1815, was
still employed at Mandeure, near Mont-belliard, and which is said to
be even yet in use in some of the remoter districts of the Ardennes.
When a theft has been committed, the inhabitants are summoned to
assemble after vespers on Sunday at the place of judgment. There the
mayor calls upon the guilty person to make restitution and live in
isolation for six months. If this appeal prove fruitless, recourse is
had to the trial of the staff, in which two magistrates hold aloft a
piece of wood, under which every one is bound to pass. No instance, it
is said, is on record in which the culprit dares to do this, and he is
always left alone.[1259] Very similar to this is the use made of the
Clog Oir or golden bell of St. Senan, the founder of the monastery of
Inniscattery, at the mouth of the river Shannon, which was supposed
to have peculiar virtue in revealing culprits. A case occurred as
late as 1834, when a farmer, who had lost a sum of twenty pounds by a
burglary, had the bell brought to his house with much ceremony, and
the following Sunday was appointed for the whole parish to appear and
clear themselves upon it. On Saturday night, however, the stolen bank
notes were thrown through a window of his house.[1260] The method
described above (p. 334), as practised in Southern Russia to detect
household thieves, affords another example of the power exercised
over a guilty conscience. It is easy thus to imagine how the other
forms of ordeal may have conduced to the discovery of crime in ages
of lively superstition. A case occurring about the commencement of
the twelfth century is a fair illustration of the manner in which it
frequently worked on the imagination of those whose lives or fortunes
were at stake. André de Trahent, a vassal of the convent of St. Mary
of Saintes, claimed certain property belonging to the convent. On the
final hearing it was decreed that he must abandon his claim unless
he could prove it by oath and ordeal. This he agreed to do, and on
the appointed day he appeared with his men ready to undergo the
trial. As there were two pieces of property in question, two ordeals
were required. The caldrons of water were duly heated and André’s
men were prepared for the attempt, when his courage gave way; he
abruptly abandoned his claim and submitted himself to the mercy of the
abbess.[1261]
This case illustrates the fact that in the vulgar ordeals as well as in
the duel champions were sometimes allowed. To how great an extent this
was permitted it would now be difficult to assert. It is not specially
alluded to in any body of laws, but numerous examples of it have been
incidentally given above, and in some of the _ordines_ it is assumed as
a matter of course. In one for the cold-water ordeal the substitutes
are described as children who are made to fast for forty days in
advance, and carefully watched and washed to prevent any illusions
of the devil.[1262] In the ordeal of the cross, however, it was a
recognized privilege of the old or infirm to put forward a substitute,
and when communities or churches were pleaders a champion was of course
a necessity. A still greater relaxation, occasionally permitted but
not approved by the Church, was the practice of writing the name of
the accused on paper or some other substance and submitting this to
the ordeal in place of the individual himself.[1263] Perhaps the most
illogical use of a champion in an ordeal is one suggested by Hincmar of
Reims in 860, that a satisfactory person should undergo it in order to
determine whether the secret motive alleged by another person for not
living with his wife were true or not.[1264]