CHAPTER V.

TRIAL BY ORDEAL.

Trial by ordeal was the method used to ascertain the guilt or innocence of a person accused of crime, according to his ability to perform certain acts, or accomplish results which would, in the ordinary course of events, be hurtful to him.[1]

If the suspected criminal was injured or killed in the performance of the act required of him, he was adjudged guilty, but if he performed the part assigned to him without injury, he was declared innocent. The tests that the suspected person was subjected to were called ordeals,[2] or judgments of God.

The custom of referring disputed questions such as the guilt or innocence of a person accused of crime, to the judgment of God, to be determined either by lot, or the success of certain dangerous experiments, has existed, from the earliest times, among various widely separated nations and peoples.[3]

We find that according to the “law of jealousies,” laid down in the Mosaic code Fifteen hundred years before Christ, the guilt of a woman, accused of infidelity, by her husband, was determined according to this trial of ordeal, for it is recorded:

“And the spirit of jealousy come upon him, and he be jealous of his wife, and she be defiled; or if the spirit of jealousy come upon him and he be jealous of his wife, and she be not defiled; then shall the man bring his wife unto the priest....

And the priest shall charge her by an oath, and say unto the woman, If no man have lain with thee, and if thou hast not gone aside to uncleanness; with another, instead of thy husband, be thou free from this bitter water, that causeth the curse: ...

And he shall cause the woman to drink the bitter water that causeth the curse; and the water that causeth the curse shall enter into her, and become bitter....

And when he hath made her to drink the water, then it shall come to pass that, if she be defiled, and have done trespass against her husband, that the water that causeth the curse shall enter into her and become bitter, and her belly shall swell and her thigh shall rot; and the woman shall be a curse among her people.

And if the woman be not defiled, but be clean, then shall she be free, and shall conceive seed.”[4]

Compurgation of accused persons, by fire, existed among the ancient Greeks,[5] and the Hindus practiced ordeal in nine different ways,—by the balance, by fire, by water, by poison, by the _cosha_, or drinking water, in which the images of the sun and other deities had been washed, by chewing rice, by hot oil, by red hot iron, and by drawing two images out of a jar, into which they had been thrown.[6]

The most generally used ordeals throughout ancient Europe were: Trial by battle, in which the vanquished one was adjudged guilty; trial by the ordeal of fire; trial by water; trial by the corsned; the trial of the eucharist; the trial by the cross and the test by judgment of the bier.

In trial by battle, the accuser and accused fought in mortal combat to determine the guilt or innocence of the suspected person.[7] In the trial by fire, the accused walked bare-footed, over red hot plow-shares, or coals of fire,[8] carried a red hot iron in his hand, or walked through flames, clad in a suit of wax, spread over woolen cloth, known as the “trial of the waxen shirt,” because if he was unhurt by the fire and the wax was unmelted, he was considered innocent, but otherwise was adjudged guilty.[9]

The trial by water was either by cold or boiling water. If the former, which was the test usually applied to witches, the guilt was determined by the ability of the accused to float or sink, when cast into the water.[10] Where the ordeal by boiling water was used, the accused had to take a stone out of boiling water, by inserting his hand into a caldron, containing boiling water, as deep as his wrist, and if the triple ordeal was used, the boiling water was deepened so that he had to insert his arm as far as the elbow to get the stone.[11]

In the _offa execrata_, or corsned ordeal, a priest put the corsned or hallowed cheese and bread, in the mouth of the accused, with various chants and imprecations and if he swallowed it, he was freed from the judgment, but if it stuck in his throat, he was held to be proven guilty of the offense with which he was charged.[12]

The test of the eucharist was chiefly applied among the monks and clergy, for it was believed that when they took the test, God would smite the guilty, with sickness or death.[13]

In the ordeal of the cross, the accuser and accused were placed under the cross, with their arms extended, and the one whose hands moved first was adjudged to be the guilty one and the other the innocent. A trial by lot, similar to this latter ordeal, occurred when the accused was placed before certain relics with two dice before him, one of which was marked with a cross. If the cross was selected, at hazard, he was acquitted, but otherwise was adjudged guilty.[14]

And finally, the ordeal known as the judgment of the bier was used to determine the guilt of the accused, under a charge of murder. The deceased, supposed to have been murdered, was placed upon a bier, and the accused was made to touch his body. If blood flowed, or foam appeared in the mouth of the murdered person, or the body changed position, the accused was adjudged guilty of the murder, but if none of these signs appeared, he was acquitted.[15]

According to the Institute of Narada,[16] the ordeal was used four or five centuries before Christ, in India, for we find that the balance, fire, water, poison and the sacred libation, were considered the five divine tests, for determining the guilt or innocence of suspected persons.

From the formulas given in the Institute of Narada, the most solemn ceremonies accompanied the application of the tests used in the trials by ordeal, in India, in ancient days. In describing the different tests, it is said:

“Having adjured the balance by imprecation, the judge should cause the accused to be placed in the balance again. ‘O balance, thou only knowest what mortals do not comprehend. This man, being arraigned in a cause, is weighed upon thee. Therefore mayst thou deliver him lawfully from his perplexity.’ ... If the individual increased in weight, he was adjudged guilty; if he was found to be lighter or equal in weight, his innocence was established.

In the ordeal of fire, the judge thus addressed the fire: ‘Thou, O fire, dwellest in the interior of all creatures, like a witness. Thou only knowest what mortals do not comprehend. This man is arraigned in a cause and desires acquittal. Therefore, mayst thou deliver him lawfully from his perplexity.’ ... Seven circles of fire, with a diameter of a foot each and thirty-two inches distant from each other were marked on the ground, and the man, having fasted and cleansed himself, has seven _acvattha_ leaves fastened on his hands and he takes a smooth ball of red hot iron in his hands and walks slowly through the seven circles of fire and deposits the ball on the ground. If he is burnt, he is adjudged guilty, but if he is unburnt, he is declared innocent.

In the ordeal of water, the judge adjures the water, as in the preceding tests, by the balance and by fire, and the accused wades into water to his waist, while another shoots an arrow. The accused dives into the water and if he remains under while a swift runner returns the arrow, he is innocent, but otherwise is adjudged guilty.

In the poison ordeal, after the selection of the particular poison the judge thus adjures the poison: ‘Thou, O poison, art the son of Brahma,[17] thou are persistent in truth and justice; relieve this man from sin and by thy virture become an ambrosia to him. On account of thy venomous and dangerous nature, thou art the destruction of all living creatures; thou art destined to show the difference between right and wrong, like a witness.’ The accused person eats the poison and if it easily digested, without violent symptoms, the king shall recognize him as innocent, and dismiss him, after having honored him, with presents.

In the ordeal of sacred libation, the judge should give the accused water in which an image of that deity to whom he is devoted, has been bathed, thrice calling out the charge, with composure. One to whom any misfortune or calamity happens, within a week, or a fortnight, is proved to be guilty.”[18]

Charlemagne apparently did not place much dependence in the _judicium Dei_, by means of the ordeal, at the beginning of his reign, for in 779, by his edict the trial by ordeal was to be used in the more trifling offenses, while cases of greater magnitude were to be tried by the civil law of the realm.[19]

Later on in his reign, however, by his edicts of the year 806 and 809 this monarch seems to have come to regard the ordeal with much greater favor, for he frequently referred to this method of trial; when dividing up his empire between his sons he directed that all disputes should be settled by ordeal, and endeavored to force a greater regard for the judgments in trials by ordeal, on the part of the subjects, whom, it seems, had come to entertain his own early distrust in this species of trials.[20]

It seems that Charlemagne completely believed in the efficacy of the ordeal, by the year 794, for we are told that in this year, a certain Bishop Peter, who was condemned by the Synod of Frankfort to clear himself of the suspicion of complicity in a conspiracy of treason against Charlemagne, being unable to obtain conjurators, one of his vassals offered to attempt the test of the ordeal, as his proxy, and on his success, the Bishop was adjudged innocent of the charge and was reinstated.[21]

Soon after the death of Charlemagne, in the year 816, Louis-le-Debonnaire, at the Council of Aix-la-Chapelle, prohibited the continuance of the ordeal of the cross,[22] because it had a tendency to bring the Christian symbol into contempt and his son, the Emperor Lothair also issued a similar edict against the use of this ordeal, after he assumed the reigns of government.[23]

Among the early Saxons, the ordeals by fire and water were practiced, for we find that the _ordale_ signified _judicium aequum, justum, indifferens_, “an upright, just and indifferent judgment.”[24]

Tacitus tells us that the ancestors of our Saxon forefathers, during pagan times, were addicted to divination and risked certain results upon the flying of birds, the neighing of horse and trial by combat.[25] And trial by ordeal was used by them in both civil and criminal cases, to determine the issues later solved by the testimony of witnesses, or the oaths of compurgators.[26]

The ordeal of hot water appears in the laws of Ine,[27] who began his reign in the year 710, and the ordeals by fire and water had become so common by the time of King Athelstan, that we find the procedure governing such trial, fully covered by his Constitutions,[28] by which they were considered in the light of religious ceremonies:

“Concerning ordeal, we command, in the name of God, and by the precept of our archbishops and bishops, that no man enter into the church after the fire is brought in, wherewith the judgment is to be made hot, except the priest, and he who is to undergo the trial; and let there be measured nine feet from the stake unto the mark, according to the measure of the foot, who is to come thus to judgment.

And if the trial be by water, let it be made hot, till it boil, in a vessel of iron, brass, lead, or clay; and if it be single, let his hand be put therein after a stone or stock up to his wrist; but if the accusation be threefold, then to his elbow; and when the judgment shall be prepared, let two men be brought in on either side, to make experiment, that it be as hot as is afore expressed.

Let as many also come in on each side the judgment, along the church; and let them be fasting and abstain from their wives that night; and the priest shall sprinkle holy water on them, and give them the text of the holy gospel to kiss, as also the sign of the cross; and no man shall make the fire any longer than whilst the benediction beginneth, but shall cast the iron upon the coals until the last collect; afterwards it shall be put upon the _ceac_ (cauldron)[29] without any more words, then that they pray earnestly to God that he will vouch safe to manifest the truth therein; then shall the person accused drink holy water and his hand wherewith he shall carry the judgment shall be sprinkled therewith; and so let him go, the nine feet measured being distinguished by three and three.

At the first mark next to the stake, he shall set his right foot and at the second his left foot; and thence he shall remove his right foot unto the third mark, where he shall throw down the iron and hasten to the holy altar; which done, his hand shall be sealed up, and the third day after viewed, whether it be clean or unclean where it was so sealed. And he who shall transgress these laws, let the ordeal judgment or trial be done upon him, that he pay 120 s. for a fine or mulct.”[30]

For three days before the trial, the accused was to attend the priest, to be constant at mass, to make his offering and in the interim, to sustain himself on nothing but bread, salt, water and onions. On the day of the trial he was to take the sacrament and swear he was not guilty of the crime imputed to him. The accuser and accused both came to the place of trial, with not more than twelve persons each, to stay any interposition or violence and the accuser then renewed his charge upon oath and the accused made his purgation on oath also. If the ordeal was by hot water, he put his wrist or arm into the boiling water, accordingly whether it was the simple or triple test, and if the trial was by cold water, his thumbs were tied to his toes and he was cast into the water. If he escaped the boiling water unhurt, or sank in the cold water, he was adjudged innocent, but if he was burned by the hot water, or swam in the cold water, he was adjudged guilty, as charged by his accuser.[31]

These trials by water and fire were called _judicium Dei_, or, as the Mirror of Justice puts it, miracles of God, but “Christianity suffered not that they be by such wicked arts cleared, if one may otherwise avoid it.”[32]

From this observation in the Mirror, it has been contended that the Anglo-Saxons distinguished between open and manifest offenses and those not so public as to be susceptible of proof and that trial by ordeal was only used in the latter class of crimes.[33]

It is true that in Alfred’s time there were trials by jury, and it seems that trial by ordeal may have been re-established, after trial by jury, in doubtful cases, as a refuge or solution of an otherwise doughty problem for the barbarian mind to solve.[34]

Pursuance to the terms of a certain league, made between Edward the Elder and Guthrun, the Dane, ordeals were forbidden upon festivals or fasting days[35] and the same provision was inserted in the constitution made by the synod held at Eanham, under King Ethelred.[36]

The laws of Canute and Edward the Confessor also contained provisions forbidding trials by ordeal upon festivals or fasting days, for we read that the _judicium Dei_, upon these auspicious occasions, was to be postponed, until the affairs of mortals could be better arranged for its reception, by the following provision:[37]

“We forbid ordeals and oaths” (the name law trials at that time were called) “on feast days and ember days, and from the advent of our Lord till the eighth day after twelfth be past; and from Septuagesima till fifteen nights after Easter. And the sages have ordained that St. Edward’s day shall be festival all England on the fifteenth cal. of April, and St. Dunstan’s, on the fourteenth cal. of June; and that all Christians, as right it is, should keep them hallowed and in peace.”

In the simple ordeal, of the Anglo-Saxons, the hot iron weighed one pound and in the triple ordeal, it was to weigh three pounds. The triple ordeal was used in the crimes of arson and murder, treason and forgery.[38]

In the laws of Edward the Elder, perhaps the earliest reference in Anglo-Saxon laws, to the ordeal, it was provided that perjured persons, or those once convicted should not thereafter be deemed oath-worthy, but on their accusation, should be hurried to the ordeal,[39] and similar provisions are to be found in the laws of Ethelred, Cnut and Henry I.[40]

Trial by ordeal at first carried with it the sanction of the priest, as well as the civil power and the clergy continued to approve and interject the spiritual portion of the proceeding, until the early portion of the thirteenth century.[41] Under the law of William the Conqueror, the conduct of the ordeal, as a known ecclesiastical procedure, was declared to be the business of the bishop, but the civil and spiritual powers were to co-operate harmoniously, in the trial by ordeal, the court of the hundred making the original order by which a man was sent to the ordeal of fire or water, but the bishop presided at the ceremony and regulated the course of the proceeding, in accordance with the solemn religious ceremony, whereby the element used was blessed and the Divine Wisdom of Omnipotence was invoked to the conclusion of the whole proceeding.[42]

The Normans were attached to the procedure, elsewhere discussed, as the _trial by battle_ and they did not relish a procedure which seemed to them to be a mere superstitious formality, fit only for women and old or maimed men. However, ever since the reign of Ina, the Saxons had been accustomed to the ordeal and the laws of Ina and later monarchs continued in effect, and the accused person was entitled to select the ordeal of hot iron, or that of hot water and to undergo, under the supervision of the priest or bishop, a trial, to determine his guilt or innocence of the offense charged.[43]

In the year 1166, in the Assize of Clarendon, and again in the year 1176, in the Assize of Northampton, Henry II. provided for a public mode of accusation for the capital felonies and trial by ordeal was the method of procedure fixed to determine the guilt or innocence of the person charged.[44]

Prior to the thirteenth century perjury was so common and it was so impossible to avoid the effects of a false oath, by the proceedings of men, that the Laws of Henry provided that “No one is to be convicted of a capital crime by testimony.”[45] Mere human testimony was not enough to send a man to the gallows, but one accused of a capital offense was to be entitled to one of the old-world sacred processes, wherein the _judicium Dei_, was supposed to take the place of the false standards, too often erected by ordinary mortals. The ordeal was then so far “the law of the land” that one accused of a capital offense, who refused the ordeal, could be executed, as an outlaw, because he had thus defied the law of the realm. But one who had not been accorded this “law of the land,” based upon the sacred and Divine belief in the infallibility of the test of ordeal, could not legally be condemned, as trial by jury or by the oaths of witnesses was not yet an accredited method of procedure in cases of capital offense.[46]

Glanville tells us that in his time, about the year 1187, an accused person, who was so far disabled by mayhem that he could not test his guilt or innocence by the ordeal of battle, was entitled to the ordeal of fire or water, to determine his guilt or innocence, this author of the first law book observing:[47]

“In such case, the Accused is obliged to purge himself by the Ordeal, that is, by the hot Iron, if he be a free Man—by water, if he be a Rustic.”

This corresponds with the statement elsewhere made, that in the early use of this trial, the hot iron ordeal, was confined to the nobility, or patricians, while the water ordeal was generally used among the common people, accused of minor offenses or other than the capital felonies.[48]

By the latter part of the twelfth century, the ordeal had become so discredited, in the time of Henry II. that the law of that reign provided that any one charged before the king’s justices with the crime of murder, theft, robbery, or the receipt of such offenders, or of arson, or forgery, by the oaths of twelve knights of the hundred, or of twelve free and lawful men, in the absence of such knights, should submit to the water ordeal, and if he failed in the experiment, he should lose one foot; and this law afterwards amended, at Northampton in order to make the punishment more severe and the felon also lost his right hand, as well as one of his feet. He was also required to abjure the realm, within forty days and even though he was acquitted by the water ordeal, he was required to find pledges to answer for his good behavior, and if he were later charged with murder, or other felony, he was then required to abjure the realm within the forty days, with all his goods, save what his lord might distrain to discharge his obligations due him.[49] This law was to remain in effect, as long as the king pleased and the effect of this law was that the accused, if convicted, lost a limb and suffered banishment and even if acquitted, by ordeal, he was likewise banished, for such was the doubt then entertained as to the justness of the trial by ordeal.[50]

This doubt upon the justness of the trial by ordeal, was due, in large measure to the fact that many such trials were fraudulently managed, by the Bishops, to bring about the acquittal of the accused.

It is related that William Rufus, who had caused fifty Englishmen of good family, to be tried by ordeal for the violation of some law of the realm, after their acquittal by the ordeal of the hot iron, declared that he would try them again by the judgment of his court and would not abide by this pretended judgment of God, “which was made favorable or unfavorable, at any man’s pleasure.”[51] And Henry II., likewise convinced of the fraud accompanying such acquittals, by this means, also refused to give final effect to such acquittals.[52]

Trial by ordeal continued in England until the judgments of councils, in the reign of Henry III., but in the third year of the reign of this monarch on January 27’, 1219, direction was given to the justices itinerant for the northern counties of the kingdom not to try persons charged with murder, arson, robbery, theft or other felonies, by the ordeals of fire or water, but for the present, until further provision could be made, to keep them in prison, _so as not to endanger their life or limb_[53] and those charged with the inferior offenses were to be compelled to abjure the realm.[54]

This order of council, during the reign of Henry III., had such a potent influence toward abolishing the superstitious trial of ordeal, that it went quite out of use by the time of Bracton, who makes no mention of it in his book.[55]

Compurgation by witnesses was substituted, in England in the early part of the thirteenth century, for the former mode of compurgation by ordeal and the latter became an obsolete procedure in England, until revived in the crime of witchcraft, by James I., where it was quite generally used, to determine the guilt or innocence of persons accused of sorcery, because of the absence of any other test to apply, to determine their guilt or innocence.[56] This superstitious monarch maintained that trial by ordeal was an infallible test in cases of witchcraft, because the pure elements of fire and water would not receive those who had renounced the sacred privileges of their baptism and by his authority and example thousands of cases of cruelty and oppression resulted, in the use of the ordeal, as applied to cases of sorcery, during the craze of that delusion, in Europe,[57] but otherwise, the trial by ordeal passed into history, along with the many other cruel institutions of a past age.

The ordeal was frequently used, in ancient Europe, to establish the paternity of children or the chastity of women, the success or failure of the test being generally accepted as the judgment of God.

In 887 Charles-le-Gros accused his wife, the Empress Richarda, of adultery with Bishop Liutward, and she offered to prove her innocence by the judicial combat, or the ordeal of the red-hot iron.[58]

St. Cunigundi, referred to as the “virgin-wife” of the Emperor St. Henry II., is also reported to have eagerly appealed to the judgment of God, to establish her innocence of the baseless charge of infidelity, preferred against her by her jealous lord, and in vindication of her honor, to have successfully trod, unharmed, the red-hot plow-shares.[59]

In the eleventh century, the unholy purpose of Edward the Confessor—who was himself too ascetic to make his own wife, Editha, the partner of his bed[60]—in his desire to accomplish the death of his own Mother, Queen Emma, because of her partiality to his half brother, Hardicanute—the son of Canute,—was frustrated by the Queen invoking this judgment of God, through the ordeal of the red-hot iron, to establish her innocence of the charge of adultery with Alwyn, the Bishop of Winchester. The Queen triumphantly purged both herself and the Bishop, by the help of St. Sowthin, by walking bare-footed over nine red-hot plow-shares and out of gratitude for this vindication, the Queen and the Bishop each gave nine manors to the Church of Winchester in memory of the nine plow-shares, and it is reported that the King, for preferring the false charge against them, was corrected with stripes.[61]

The Confessor was more successful in ridding himself of his father-in-law, however, and the interesting case of Godwin, Duke of Kent, father of Harold and sometimes called the “King maker of England,” during the reign of Edward the Confessor, also illustrates the superstitious belief in the corsned ordeal.

As the story goes, Duke Godwin was dining with his royal son-in-law Edward the Confessor—for the latter had then married his daughter Editha—and whether premeditated or not, the King repeated the accusation that his brother Alfred had met his death at the hands of Duke Godwin. To vindicate himself old Godwin then invoked the ordeal of the corsned and seizing a morsel of bread he dramatically exclaimed: “May God cause this bread to choke me if I am guilty in thought or in deed of this crime.” Then the King took the bread and blessed it, and, whether he poisoned it or not, when Godwin put it in his mouth and swallowed it, he was suffocated by it and fell down dead.[62]

In this age of scepticism it is hard to accept this superstitious explanation for the end of old Duke Godwin, but the secret of his death is more reasonably accounted for, on the theory of Boccascio’s story of Calen Drino, where the expected miracle was brought about by the secret mixture of aloes in the bread of the corsned, for, as Lea suggests, Edward the Confessor, both because of his dislike for his father-in-law, and his desire to cast off the tutelage in which he was held, in order to further his self interest and rid himself of a hated enemy, would no doubt have secretly mixed poison with the corsned used in this ordeal and then caused the story to be circulated among the superstitious subjects, to account for the Duke’s sudden demise.[63]

We find that the ordeal was utilized in France, in the tenth century in the notable case of Teutberga, the wife of King Lothair, great-grandson of Charlemagne. Desiring to rid himself of his wife, this degenerate grandson of a worthy grand-sire, accused her of incest and forced her to a confession. She afterwards recanted and denied the truth of her confession and offered to establish her innocence by the ordeal of hot water, by proxy.[64]

Hincmar, the most distinguished divine of this period championed the cause of the unfortunate queen and wrote a dissertation upon the infallibility of the test of the ordeals, because they had the guidance of the Divine Wisdom, effectually convincing himself and a large number of the French subjects of the correctness of the judgment by this ordeal, especially when King Lothair so far estopped himself from claiming that he had not desired to get rid of his wife, by espousing his concubine, Waldrada, whom he had, in fact, preferred to the wife he had discredited by the criminal charge against her.[65]

Illustrating the prevalence with which the pagan practice of ordeal had taken possession of the minds of the churchmen of the ninth century, Lea quotes the argument of Hincmar, in his interesting work, “Superstition and Force,”[66] as follows:

“In boiling in water the guilty are scalded and the innocent are unhurt, because Lot escaped unharmed from the fire of Sodom, and the future fire which will precede the terrible judge, will be harmless to the saints, and will burn the wicked as in the Babylonian furnace of old.”

Of course the correctness of this syllogism, depends upon the correctness of the first assumption, based upon the delusions and superstitions of a past age, but the conclusion seemed to satisfy a large number of that day, judged by the standards then obtaining, among which was the idea of a Deity who was a bigger, stronger, crueler man—a more “terrible judge.”

Some few of the many interesting trials by ordeal, which obtained during the twelfth century in the reigns of Richard I. and King John, have been reproduced by Sir F. Palgrave, in his “Proofs and Illustrations,” to be found in the _Rotuli Curiae Regis_[67] for those reigns. Let us examine a few of these old Rolls.

“_Roll of the Iter of Wiltshire, 10 Richard I._—The jurors say that Radulphus Parmentarius was found dead with his neck broken, and they suspect one Christina, who was formerly the wife of Ernaldus de Knabbewell, of his death, because Radulphus sued Christina in the ecclesiastical court for breach of a promise of marriage she had made to him and after the death of her husband Ernaldus, Reginald, a clerk, frequented her and took her away from Radulphus, and Reginald and Christina hated Radulphus for sueing her, and on account of that hatred, the jurors suspect her and the clerk of his death. And the country says it suspects her. Therefore, it is considered that the clerk and Christina appear on Friday, and that Christina purge herself by fire.[68] _Roll of the Iter of Stafford, in 5 John._—One Elena is suspected by the jurors, because she was at the place where Rainalda de Henchenhe was killed and because she was killed by her help and consent. She denies it. Let her purge herself by the judgment of fire; but as she is ill, let her be respited, till she gets well.

Andrew of Bureweston is suspected by the jurors of the death of one Hervicus, because he fled for his death, therefore let him purge himself by the judgment of water.”[69]

During the witchcraft craze, in Europe, the ordeal of fire and water was frequently invoked by the accused persons, to clear themselves of the charge, but so incensed were the people against those arraigned for this offense that it was difficult to convince the courts and juries of the innocence of the alleged offender, even by this supposed infallible test of the judgment of God. It was presumed that the Devil interfered with the correctness of the termination of the tests in this hated crime and so the poor suspects were condemned, after suffering untold tortures, even though the test of the ordeal favored their innocence of the charge.

The Inquisitor Sprenger cites the case of a witch, tried before the Count of Furstenberg, in 1484. The accused invoked the test of the red-hot iron and the Inquisitor attributed his acquiescence to his youth and inexperience and the fact that he was not acquainted with the methods of the Devil, to further the cause of the sorcerers. Although sentenced to carry the hot iron only six paces, the supposed witch carried it six paces and offered to hold it still longer, if required, as she displayed her hand wholly uninjured. The Count was thus compelled to render a judgment of not guilty against the accused person and at the time Sprenger wrote, in 1487, he reported that she still lived “to the scandal of the faithful.”[70]

The superstition connected with the trial by ordeal, as a means of detecting the guilt or innocence of the participants of the foul crimes of the middle ages, early took a firm hold of the popular imagination and we find repeated references to the ordeal, in the dramatic and popular literature of the different countries where this mode of trial obtained.

The heroic Iceland song of the Elder Edda, supposed to have been composed between the sixth and eighth centuries, utilizes the ordeal as a means of bringing to justice the false witness borne by the accuser, the Concubine Herkia, in her charge of adultery against Gudrun, the wife of Atli.[71] First describing the test, resulting in the innocence of Gudrun, and then the proof of the guilt of her accuser, the poem proceeds:

“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 unscath’d 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.”

The ordeal of the bier was exemplified in the current literature of the age of Richard Coeur-de-Lion, for the histories of that King report that when he met the funeral procession of his father Henry II., at Fontevraud, the blood spurted from the nose of the deceased, because of the treason and rebellion of which his son had been guilty.[72]

Shakespeare utilizes this story of Richard Coeur-de-Lion, in the funeral scene, in Richard III., where Lady Anne, when interrupted in her grief at the bier of Henry VI., is made to say to the by-standers:

“O gentlemen, see, see: dead Henry’s wounds Open their congeal’d mouths, and bleed afresh.”[73]

In Sir Walter Scott’s “Minstrelsy of the Scottish Border” we also find a reference to this ordeal of the bier, when, in the ballad of Earl Richard, this author established the innocence of the maid, by this test:

“‘Put na the wite on me,’ she said; ‘It was my may Katherine.’ Then they hae cut baith fern and thorn, To burn that maiden in.

It wadna take upon her cheik, Nor yet upon her chin; Nor yet upon her yellow hair, To cleanse that deadly sin.

The maiden touched that clay-cauld corpse, A drap it never bled; The ladye laid her hand on him, And soon the ground was red.”

And thus Scott uses the ordeal of the bier to establish that the accuser was herself the guilty person[74] and the Bard of Avon and the Elder Edda utilize this ordeal and that of the boiling water, to demonstrate the infallibility of this Divine test, when applied, to ascertain the guilt or innocence of one accused of such crimes as may legitimately be the subject of this character of proceeding, known to the ancient law as one of the Judgments of God.

The ordeal was entirely a judicial proceeding, regularly used, in an early day, for the trial of criminal cases, before the civil and ecclesiastical courts. The accused had no alternative but to undergo the trial by ordeal, for when ordered to submit to it, the order had the force and effect of a regular judgment of the court.[75] A failure to comply with the order of the court to undergo a trial by ordeal, was treated as a contempt of court, and under the early English law, the accused who refused to submit to such a test, was outlawed and his property was confiscated, the same as if he had been adjudged guilty of the offense, for in refusing a compliance with the mandate of the law, he placed himself beyond the pale of the law and later could not claim the right to a lawful trial.[76] The Anglo-Saxon codes allowed no alternative but contained direct and specific provisions for the trial by ordeal, in all its different phases.[77]

The circumstances and conditions under which ordeal was employed, in the trial of the various felonies known to the early Saxon laws, varies, necessarily, with the customs and legislation of the different rulers, and sometimes we find that the right of selection obtained, between this and other modes of compurgation, or between the different forms of ordeal.[78]

Little, if any good, could result from a discussion of the power of a Court to order submission to such barbarous treatment, for the courts assumed the power and it was backed-up with the influence of the Church and the authority of the King. The citizens could do little else than submit to such a formidable alliance, which proceeded in the name of the Majesty of the Law and the Solemn Assurance of the Church, for there were no constitutions to protect the citizens from cruel or unusual punishments; might was right when used against the weak and oppressed and the power of the Church and State was too much for any individual to overcome. Society was not organized, as at present, to protect the rights of the individual, but the Church and State were all-powerful and their orders had the force to overcome all private resistance.

As shown, in the beginning, the institution known as trial by ordeal, like many other of the cruel customs of the ancient world, had the Mosaic law as its foundation and the Church’s approval, in the construction of the foundation and the recognition of the whole institution. The Church was not only ready to accept the barbarous practices of its pagan converts but itself gave them fresh claim to confidence, by throwing around them the solemn ceremonies of its own approval. The ordeals were all conducted with the aid of the priests, and prelates in all the Catholic countries were everywhere granting special charters authorizing the privilege of trials by ordeals.[79]

But as the Church was partly responsible for the practice of trials by ordeal, because the Churchmen were but human and, as such, entered into the manners and customs of the people of the period when they lived, the Church had no inconsequential part in abolishing this barbarous custom, for ever since the sixth century and perhaps from the beginning of the custom, eminent Churchmen had opposed the institution as a pagan custom, not authorized by the teachings of the ancient Jews or the religion of Christ, and finally, the protests of these wise Churchmen culminated in the suppression of this old test, and in 1215 the Lateran Council forbade the clergy from afterward taking part in the ceremony known as trial by ordeal.[80] And Henry III., following the lead made by the Church, “Seeing that the judgment of fire and water is forbidden by the Church of Rome,” directed his judges, starting on their circuits, to adopt other methods of proof and to forever discard this brutal test.[81]

If the Church was remiss in its duty to oppose the ordeal, therefore, in the beginning, it brought about the repression of the practice, and is, at least, entitled to the benefit of the approval of the friends of humanity for this tardy beneficence, upon its part.

If true that every age, like every person, has its own sins and short-comings to answer for, and that is the happiest which best succeeds in hiding them for a time,[82] then the age of the trial by ordeal, according to our twentieth century standard, was guilty of a sin that the past centuries must atone for, if atonement is essential for the wayward customs of a pagan race, struggling without compass or needle, amid the darkness of a barbarous age, to steer a straight course. They should not be held to more than the ordinary standards of right and wrong then prevailing, in their efforts to find the higher law for society, when just able to attempt to clamber up the mountain heights of wisdom. The inhabitants of the centuries who utilized the trial by ordeal had not then perfected their judicial system so that very high ideals of individual right obtained, but they had made wonderful strides in the arts and sciences, while practicing this hideous custom of trusting to the wisdom of God, in the trials of men and women for their offenses against society, as judged by man made laws. We have elevated the standards of the judicial system somewhat, since that period, but in our own time, a large number of people, instead of further establishing the independence of the judiciary, are favorable to submitting to popular vote, the correctness of a given decision, or the judicial fitness of a judge; mormonism only recently was abolished and instead of the superstition and delusion which invoked the judgment of God in trials of witches and others accused of unproven crimes, we have spiritualism and other similar protests against rationalism and reason, so we are not yet in a position to condemn, in unmeasured terms, our older brothers of the day of trials by ordeal.

FOOTNOTES:

[1] Pattetta, Ordalia, c. I.

[2] From the Anglo-Saxon, _Ordaal_, _or_, primitive, and _daal_, judgment, meaning “primitive judgment,” or _urtheil_, according to the German.

[3] Thayer says: “Nothing is older,” Harvard Law Review, Vol. V., p. 63; II. Essays in Anglo-American Legal History, 392.

[4] Numbers, V., 14, 15, 19, 24, 27, 28.

This same ordeal is in use among the Africans, of the Gold Coast, to determine incontinence on the part of a woman.

From Herodotus it would seem that the ancient Egyptians believed in ordeals, with other divine power, to solve the guilt of prisoners, in cases where the evidence was doubtful, as he narrates instances where Aames II. who led a dissolute life, was convicted on the supposed divine judgment of the oracle. Herodotus II., 174.

In their excellent history of English Law, Pollock and Maitland say, of the trial by ordeal: “The history of ordeals is a long chapter in the history of mankind; we must not attempt to tell it. Men of many, if not all races, have carried the red-hot iron or performed some similar feat, in proof of their innocence.” (Vol. II., p. 598.)

[5] Sophocles’ _Antigone_, 264; Aeschylus, fr. 284.

[6] Asiatic Researches, vol. i., p. 389.

[7] Neilson’s “Trial by Combat.”

[8] Thayer’s “Older Modes of Trial,” II. Essays in Anglo-American Legal History, p. 393.

[9] Pattetta, Ordelie.

[10] Mackay’s Delusions; Athelstane.

[11] Pattetta, Ordalie.

In Sophocles’ Antigone, the guards protest their innocence to Creon, of any complicity in the burial of Polynices and offer to establish their innocence by ordeal, in the following lines:

“Ready with hands to bear the red-hot iron, To pass through fire, and by the gods to swear That we nor did the deed, nor do we know Who counselled it, or who performed it.” (PP. 264-267.)

[12] Pattetta, Ordalie; I. Reeve’s History English Law, p. 203.

[13] _Ante idem._

[14] Mackay’s “Memoirs of Delusions.”

[15] _Ante idem._

[16] According to Jolly, the translator of this book, the materials for the text date back many centuries before Christ and some of the old laws treated of, belong to the remotest antiquity, p. XX.

Rishi Narada was a celebrated Hindu Sage and Lawgiver, supposed to have been the son of Brahma and Saraswari. Mrs. Manning’s “Ancient and Med. India,” Vol. I., pp. 146, 249; Vol. II., pp. 119, 134.

The ordeal of the eucharist was based upon the statement of the Apostle, construed with pious veneration and accepted literally “he that eateth and drinketh unworthily eateth and drinketh damnation to himself.” _I. Corinthians_ XI., 28, 29; Lea, “Superstition and Force,” (3 ed.) 304.

[17] Brahma, the first person, in the Triad, of the Hindus, was the god of the fates, master of life and death, the author of the Vedas and the great lawgiver and teacher of India.

[18] Institute Narada, Pt. I., c. 5, sec. 102, to Pt. II., pp. 44, 45. According to an eminent authority, ordeals are still practiced in India, in private life. Sir Henry Maine’s “Life and Speeches,” p. 426; Manning’s “Ancient and Mediaeval India,” Vol. I., pp. 146, 249; Vol. II., pp. 119, 134.

From the fragments of the Avesta, which have come down to us, containing snatches of the prehistoric law of the ancient Persians, the ordeal of boiling water was a fixed, settled legal procedure, at that distant day, for it is there recorded:

“Creator: he who knowingly approaches the hot, golden, boiling water, as if speaking truth, but lying to Mithra;

What is the punishment for it?

Then answered Ahura-Mazda: Let them strike seven hundred blows with the horse goad, seven hundred with the craesho-charaha.” This was the punishment affixed for using this particular ordeal for fraudulent purposes, just as if one trifled with one of the settled legal processes of the present day and as perjury was then prevalent, the punishment of twice seven hundred blows to the perjurer, was the penalty for using this ordeal to further perjury, or false swearing. Vendidad, Farg. IV., 156; “Records of the Past,” VII., 109; Lea, “Superstition and Force,” (3’ ed.) 233.

[19] Cap. Car. Mag. ann. 779, sec. 10; Lea, “Superstition and Force,” (3 ed.) 348.

[20] Capit. iv ann. 803, secs. iii, vi; in L. Longobard, Lib. ii, Tit. xxviii, sec. 3; Tit. iv, sec. 25; Capit. Car. Mag. I., ann. 809, sec. 20.

[21] Capit. Car. Mag. ann. 794, sec. 7; Lea, “Superstition and Force,” p. 338.

[22] Concil. Aquisgran. cap. xvii.

[23] L. Longobard, Lib. II., Tit. lv, sec. 32; Lea, “Superstition and Force,” p. 298.

[24] Herbert’s Antiquities (1804), p. 146.

[25] De Moribus Germanorum, cap. X.

[26] Herbert’s Antiquities, p. 147.

[27] _Ante idem._; I. Pollock and Maitland’s History English Law, p. 39; Dr. Liebermann’s Sitzungsberichte der Berliner Akademie, 1896, XXXV., p. 829.

[28] Leg. Athelstan, 23; I. Reeve’s History English Law, p. 201; Analecta Anglo-Brit. lib. ii, cap. 8, inter Leges Athelstan, cap xxx.

[29] Dr. Liebermann’s Sitzungsberichte der Berliner Akadamie, XXXV., 829; I. Pollock and Maitland’s History English Law, p. 39, note.

[30] Herbert’s Antiquities (1804), pp. 147, 148.

[31] I. Reeve’s History English Law, pp. 201, 202; Leges Athelstan, 23.

[32] Mirror of Justice, c. 7, s. 24.

[33] I. Reeve’s History English Law, p. 203.

[34] Finlason’s note to I. Reeve’s History English Law, p. 201.

Pollock, in his “Anglo-Saxon Law,” says “A man of good repute could usually clear himself by oath, but circumstances of grave suspicion or previous bad character, would drive the defendant to stand his trial by ordeal.” I. Essays in Anglo-American Legal History, p. 93.

[35] Lamb, de priscis Angl. Leg. cap. 39.

[36] Herbert’s Antiquities (1804), p. 156.

[37] _Ante idem._

[38] Leges, Aesthelstan, iv, sec. 6; Aetheldred, iii, sec. 7; Cnut, Secular. sec. 58; Lea, “Superstition and Force” (3 ed.), 253.

[39] Legg. Edwardi, cap. iii; Lea, “Superstition and Force” (3 ed.) 340.

[40] Legg. Aethelredi, cap. i, sec. I; Cnuti Saecul. cap. xxii; Henrici, I., cap lxv, sec. 3; Lea, _supra_.

[41] Schmid, Gesetze, p. 357; Stubbs, Select Charters; I. Pollock and Maitland’s History English Law, p. 450.

[42] _Ante idem._

[43] LL. Inae, c. 77; _Traites sur les coutumes Anglo-Normand_. Tom. I., p. 577; Hale’s History Common Law, p. 152.

[44] Thayer “Older Modes of Trial,” V. Harvard Law Review, 64; II. Essays in Anglo-American Legal History, p. 394.

[45] Leges Henri, 31, sec. 5; Foedera, i, 154; II. Pollock and Maitland’s History English Law, p. 650.

[46] Palgrave, Commonwealth, p. 207; II. Pollock and Maitland’s History English Law, p. 650.

[47] Glanville (Beame’s tr.), p. 283.

[48] I. Reeve’s History English Law, pp. 456, 457; Mirror of Justice, cap. III., sec. 23; Lea, “Superstition and Force,” (3 ed.) 256.

“The water ordeals, both hot and cold, were stigmatized as plebian, from an early period, as the red-hot iron and the duel were patrician.” Lea, 283.

[49] I. Reeve’s History English Law, p. 456; I. Pollock and Maitland’s History English Law, p. 152.

[50] _Ante idem._

[51] I. Reeve’s History English Law, p. 456.

[52] Litt. Hen. II., vol. iv, 279; I. Reeve’s History English Law, 457.

Instead of the _judicium Dei_, the success of the fifty men would look more like _judicium clericus_. Eadmer, Hist. Nov. 102; II. Pollock and Maitland History English Law, 599.

[53] This order to the justices, as we have seen, in the Essay on _Peine forte et dure_, had the effect of filling the jails of the kingdom with prisoners content to await the invention of some other method of trial than that of ordeal, and since none such was provided, to refuse to plead and thus baffle the king’s justices. To overcome this custom, the order not to _endanger their lives or limbs_, soon gave place to the terrible torture, by which they were literally _pressed to death_, for standing mute.

[54] II. Reeve’s History English Law, 286.

[55] II. Reeve’s History English Law, 287, and note.

[56] Lea “Superstition and Force,” (3 ed.) 291; Daemenologiae, Lib. III., cap. vi.

[57] _Ante idem._

The Lateran Council of 1215 forbade the clergy to take part in the ceremony of the ordeal any further and in prompt obedience to this decree in England, Henry III. abolished it in the kingdom, as England was then at the Pope’s feet, and aside from the cases of witchcraft and sorcery, in the reign of James I., the ordeal last appears, as a method of judicial trial, in the old rolls of the reign of King John. (Concil. Lateran. IV., c. 18; Foedera, i, 154; Rolls of King’s Court, Pipe Roll Soc. 80, 86, 89;) Select Pl. Cr; Note Book, pl. 592; Lea, “Superstition and Force,” (3 ed.) 421; II. Pollock and Maitland’s History English Law., p. 599 and notes.

Lord Hale informs us: “That in all the time of King John ... trial by ordeal continued, ... but it seems to have ended with this king, for I do not find it in use any time after.” (History Common Law, p. 152.)

In Nigeria the trial by ordeal still obtains in cases of witchcraft and to vindicate the chastity of women. P. Amaury Talbot’s article, in London Telegraph, July, 1912.

[58] Regino. ann. 886—Annales Metenses; Lea, “Superstition and Force,” (3 ed.) 257.

[59] Lea, “Superstition and Force,” _supra_; S. Kunegundae, cap. 2; Ludewig Script. Rer. German. I., 346.

[60] Green’s History English People, vol. I.

[61] Freeman’s Norman Conq. Vol. II; Rapin, History d’ Angleterre, I., 123; Wm. of Malmesbury, Giles’ note, ann. 1043; Lea, “Superstition and Force,” (3 ed.) 258.

It seems that the charges against Queen Emma were preferred by Robert, Archbishop of Canterbury. She was accused both of consenting to the death of her son, Alfred, and of preparing poison for her son Edward, the Confessor, and also of intimacy with Alwyn, the Bishop of Winchester. The Dowager Queen, on the night preceding the trial, prayed for help, in the Abbey of St. Swithune, at Winchester and the next day she passed over the nine plow-shares unhurt. Archbishop Robert fled the kingdom and the King, who had brought about her trial, did penance for his credulity.

(The Percy Anecdotes, p. 161.)

The paternity of two children resulting from a morganitic marriage of Robert Curthose, son of William the Conqueror, is reported to have been established by the ordeal of the red-hot iron, which the mother carried unhurt, and Curthose, then Duke of Normandy, thus convinced of the legitimacy of the boys, regularly adopted them. Roger de Wendover, Ann. 1085; Lea, “Superstition and Force,” (3 ed.) 259.

[62] Roger of Wendover, ann. 1054; Matthew of Westminster, ann. 1054; Chronicles of Croyland, ann. 1053; Henry of Huntington, ann. 1053; Wm. of Malmesbury, Lib. II., cap. 13; Lea, “Superstition and Force,” (3 ed.) p. 301.

[63] Lea, “Superstition and Force,” _supra_.

[64] Lea, “Superstition and Force,” (3 ed.) p. 247.

[65] _Ante idem._

[66] Lea, “Superstition and Force,” (3 ed.) p. 247; Hincmar, de Divert. Lothat. Interrog. vl.

[67] Palgrave erroneously states that the _Retuii Curia Regis_ is the “oldest judicial record in existence.” The records of trials obtaining during the reign of Hammurabi, 2250 years before Christ, are in existence. See Chapter on “_Recall of Judges_;” John’s “Laws of Babylonia,” etc.

[68] Palgrave’s “Proofs and Illustrations,” clxxxviii; Stephen’s “Criminal Procedure,” II. Essays in Anglo-American Legal History, pp. 487, 488.

[69] Palgrave’s “Proofs and Illustrations,” clxxxv; Stephen’s “Criminal Procedure,” _supra_.

[70] Malleus Maleficar. Francof. 1580, pp. 523-31; Lea, “Superstition and Force,” (3 ed.) 264.

[71] Benjamin Thorpe’s Elder Edda, pp. 106, 107; Prof. Bugge’s Ed. of Copenhagen, (1867); Prof. Rask’s ed. of 1818; Lea, “Superstition and Force,” (3 ed.) 335.

[72] Benedicti Abbatis Gest. Henr. ann. 1189; Roger de Hoveden, ann. 1186; Lea, “Superstition and Force,” (3 ed.) 316.

[73] Richard III., Act I., Scene II.

Sir Walter Scott uses the ordeal of the bier in the “Fair Maid of Perth,” in connection with the killing of Oliver Proudfute, who was killed with a lochabar axe. On the principle that “murder will out,” while the body lay in state at the High Church of St. John, in Perth, the servants of Sir John Ramorny were required to pass by the corpse and touch it, but when Bonthron, the person who had really slain the deceased, came to the body, he refused to touch it and claimed the right of trial by battle. (“Fair Maid of Perth,” Chapter XXIII.)

[74] Lea, “Superstition and Force,” (3 ed.) 335.

[75] II. Pollock and Maitland’s History English Law, 650; Lea “Superstition and Force,” (3 ed.) 333.

[76] _Ante idem._

[77] II. Cnuti, Saec. cap. xxx, xli.

[78] L. Henrici, I., cap. lxv, sec. 3.

[79] Lea, “Superstition and Force,” (3 ed.) 354, 356; Annal. Benedict. L. 57, No. 74, ann. 1036.

[80] Concil. Lateran. IV., c. 18; II. Pollock and Maitland’s History English Law, 599.

[81] Rymer, Foed. I., 228; II. Pollock and Maitland’s History Eng. Law, _supra_.

Illustrative of the approval of the church of Rome in the ancient procedure by ordeal, we find, in the ninth century that Hincmar expatiated upon the blessing of such a test, in that it combines “The elements of water and of fire: the one representing the deluge—the judgment inflicted on the wicked of old; the other authorized by the fiery doom of the future—the day of judgment, in both of which we see the righteous escape and the wicked suffer.” Hincmar, de Divort. Lothar. Interrog. vl; Lea, “Superstition and Force,” (3 ed.) 244.

[82] Lea, “Superstition and Force,” (3 ed.) 370.