TRIAL BY ORDEAL.
One of the most remarkable judicial systems of olden times was the trial by ordeal, a mode of procedure founded on the presumption that, should a person be wrongfully accused, heaven would interpose, and in some marked way make his innocence undeniable. With the exception of China, this test was of almost universal adoption in the middle ages; and, whilst still surviving amongst the uneducated portion of most civilised communities, is even nowadays largely practised by uncultured races. As far as its origin is concerned, it may be traced back to remote antiquity; and the bitter water by which conjugal infidelity was revealed—an ordeal pure and simple—will readily occur to the biblical student as an interesting instance in Hebrew legislation and history. Herodotus relates how King Amasis—whose reign immediately preceded the invasion of Cambyses—‘was, when a private person, fond of drinking and jesting, and by no means inclined to serious business. As soon, however, as means failed him for the indulgence of his amusements, he used to go about pilfering; and such persons as accused him of having stolen their property—on his denying it—were wont to take him to the oracle of the place, where he was oftentimes convicted, and occasionally acquitted.’ The Greeks had their ordeals, a good illustration of which occurs in the Antigone of Sophocles, where the soldiers offer to prove their innocence in various ways:
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, nor who performed it.
This mode of purgation, the scholiast tells us, was in common use at that time.
There was also the water ordeal, and a certain fountain near Ephesus was specially employed for this purpose. As soon as the accused had sworn to her innocence, she entered the water with a tablet affixed to her neck, on which was inscribed her oath. If she were innocent, the water remained stationary; but if guilty, it gradually rose until the tablet floated. Traces of the same system are to be met with in the history of ancient Rome; and amongst notable instances may be quoted that of the vestal Tucca, who proved her purity by carrying water in a sieve; and that of Claudia Quinta, who cleared her character by dragging a ship against the current of the Tiber, after it had run aground, and resisted every effort made to remove it. But, as Mr Lea points out in his essay on The Ordeal, ‘instances such as these had no influence on the forms and principles of Roman jurisprudence, which was based on reason, and not on superstition. With the exception of the use of torture, the accused was not required to exculpate himself. He was presumed to be innocent, and the burden of proof lay not on him, but on the prosecutor.’
The ordeal trial prevailed in France from before the time of Charlemagne down to the eleventh century. The ancient Germans, too, were in the habit of resorting to divination; and their superstitious notions, writes Mr Gibson, led them to invent many methods of purgation or trial now unknown to the law. It should be added, also, that the Germans were specially tardy in throwing off this relic of barbarism; for, at a period when most vulgar ordeals were falling into disuse, the nobles of Southern Germany established the water ordeal as the mode of deciding doubtful claims on fiefs; and in Northern Germany it was instituted for the settlement of conflicting titles on land. Indeed, as recently as the commencement of the present century, the populace of Hela, near Danzig, twice plunged into the sea an old woman, reputed to be a sorceress, who, on persistently rising to the surface, was pronounced guilty, and beaten to death. Grotius mentions many instances of water ordeal in Bithynia, Sardinia, and other countries, having been in use in Iceland from a very early period.
In the primitive jurisprudence of Russia, ordeal by boiling water was enjoined in cases of minor importance; and in the eleventh century we find burning iron ordered ‘where the matter at stake amounted to more than half a grivna of gold.’ A curious survival of ordeal superstition still prevails to a very large extent in Southern Russia. When a theft is committed in a household, the servants are summoned together, and a sorceress is sent for. Should no confession be made by the guilty party, the sorceress rolls up as many little balls of bread as there are suspected persons present. She then takes one of these balls, and addressing the nearest servant, uses this formula: ‘If you have committed the theft, the ball will sink to the bottom of the vase; but if you are innocent, it will float on the water.’ The accuracy of this trial, however, is seldom tested, as the guilty person invariably confesses before his turn arrives to undergo the ordeal.
Again, in Spain, trial by ordeal was largely practised; and it may be remembered how, during the pontificate of Gregory VII., it was debated whether the Gregorian ritual or the Mozarabic ritual contained the form of worship most acceptable to the Deity. When the chance of deciding this contest amicably seemed hopeless, the nobles resolved to arrange the controversy in their customary manner, and, according to the historian Robertson, the champions—one chosen by either side—met and fought. But in the year 1322, in Castile and Leon, the Council of Palencia threatened with excommunication all concerned in administering the ordeal of fire or water—a circumstance which is important, as pointing to the disappearance of this mode of trial in Spain.
Furthermore, the practice of trial by ordeal was under the Danish kings substituted for the trial by combat, which, until the close of the ninth century, had been resorted to among the Danes for the detection of guilt and the acquittal of innocence. In Sweden, says Mr Gibson, the clergy ‘presided at the trial by ordeal; and it was performed only in the sanctuary, or in the presence of ministers of the church, and according to a solemn ritual.’ And yet, as he rightly observes, its abolition in Europe was due to the continued remonstrances of the clergy themselves. One form of ordeal practised in Sweden was popularly known as the trux iarn, and consisted in the accused carrying a red-hot iron, and depositing it in a hole twelve paces from the starting-point. In accordance with the accustomed mode of procedure, the accused fasted on bread and water on Monday and Tuesday, the ordeal being held on Wednesday, previous to which the hand or foot was washed. It was then allowed to touch nothing until it came in contact with the iron, after which it was wrapped up and sealed until Saturday, when it was opened in the presence of the accuser and the judges.
In the years 1815 and 1816, Belgium, says Mr Lea, was disgraced by ordeal trials performed on unfortunate persons suspected of witchcraft; and in 1728, in Hungary, thirteen persons suspected of a similar offence were, by order of the court, subjected to the ordeal of cold water, and then to that of the balance. Referring to the ordeal of the balance, Mr Tylor informs us that the use of the Bible as a counterpoise is on record as recently as 1759, at Aylesbury in this country, where one Susannah Haynokes, accused of witchcraft, was formally weighed against the Bible in the parish church. In Lombardy, ordeal by hot water was a form of procedure much resorted to; and in Burgundy this was also supplemented by the trial by hot iron.
The instances thus quoted show how universally practised throughout Europe in bygone years was the trial by ordeal; and if we would still see it employed with the enthusiastic faith of the middle ages, we must turn to eastern countries, where, owing to the slow advance of civilisation, many of their institutions still retain their primitive form. Indeed, as Mr Isaac Disraeli remarks, ‘ordeals are the rude laws of a barbarous people who have not yet obtained a written code, and not advanced enough in civilisation to enter into the refined inquiries, the subtle distinctions, and elaborate investigations which a court of law demands.’ This is specially true in the case of India at the present day, where the same ordeals are practised as were in use five or six centuries ago. Thus, the guilt or innocence of an accused person is still tested by his ‘ability to carry red-hot iron, to plunge his hand unhurt in boiling oil, to pass through fire, to remain under water, to swallow consecrated rice, to drink water in which an idol has been immersed, and by various other forms which retain their hold on public veneration.’ Professor Monier Williams, too, says that trial by ordeal is recognised by the code of Manu, and quotes the subjoined rules: ‘Let him cause a man (whose veracity is doubted) to take hold of fire, or dive under water, or touch the heads of his wife and sons one by one. The man whom flaming fire burns not and water forces not up, and who suffers no harm, must be instantly held innocent of perjury.’
In Japan, ordeals extensively prevail; and amongst the many superstitious practices kept up, we are told how the ‘goo’—a paper inscribed with certain cabalistic characters—is rolled up and swallowed by an accused person, this being commonly supposed to give him no internal rest, if guilty, until he confesses. A similar mode of procedure is practised by the Siamese, and under a variety of forms was prevalent in former years. With it, too, we may compare the mouthful of rice taken by all of a suspected household in India, which the thief’s nervous fear often prevents him from swallowing.
Formerly, this practice was observed in our own country with the corsned or trial-slice of consecrated bread or cheese. Even now, says Mr Tylor, peasants have not forgotten the old formula: ‘May this bit choke me if I lie.’
In Tibet, a popular ordeal consists in both plaintiff and defendant thrusting their arms into a caldron of boiling water containing a black and white stone, victory being assigned to the one who is fortunate enough to obtain the white. Such an even-handed mode of procedure, if generally used, must, as Mr Lea remarks, ‘exert a powerful influence in repressing litigation.’
Among further curious specimens of ordeal trial mentioned by this author may be noticed those in use in certain parts of Africa. Thus, the Kalabarese draw a white and black line on the skull of a chimpanzee, which is then held up before the accused, ‘when an attraction of the white line towards him indicates his innocence, or an inclination of the black towards him pronounces his guilt.’ In Madagascar, a decoction of the nut of the Tangena—a deadly poison—is administered to the accused. If it act as an emetic, this is considered a proof of innocence; but if it fail to do so, the guilt of the accused is confirmed. Dr Livingstone describes a similar ordeal as practised in Africa, and tells us how ‘when a man suspects that any of his wives have bewitched him, he sends for the witch-doctor, and all the wives go forth into the field, and remain fasting till that person has made an infusion of the plant called “foho.” They all drink it, each one holding up her hand to heaven in attestation of her innocence. Those who vomit it are considered innocent; but those whom it purges are pronounced guilty, and put to death by burning. The innocent return to their homes, and slaughter a cock, as a thank-offering to their guardian spirits.’
It should be noted, too, that such modes of trial have been introduced with much effect into medieval poetry and romance. Thus, says Mr Gibson, ‘there was the mantle mentioned in a ballad of which Queen Guenever is the principal heroine, and which is supposed to have suggested to Spenser his conceit of Florimel’s girdle.’
Lastly, as far as our own country is concerned, trial by ordeal existed from a very early period. When the Anglo-Saxons were unable to decide as to the guilt of an accused person, they invariably resorted to this test, the law requiring that the accuser should swear that he believed the accused to be guilty, and that his oath should be supported by a number of friends who swore to their belief in his statement and to his general truthfulness. Trials of this kind, however, were often fraudulently conducted. Thus, when William Rufus caused forty Englishmen of good quality and fortune to be tried by the ordeal of hot iron, they all escaped unhurt, and were acquitted. But upon this the king declared that he would try them by his own court. According to the legendary account, it was by this mode of ordeal that Queen Emma, the mother of Edward the Confessor, was tried in order to clear her character from the imputation of an intrigue with Alwyn, Bishop of Winchester. Then there was the ordeal known as the ‘corsned,’ or morsel of execration, already alluded to, which consisted of a piece of bread, weighing about an ounce, being given to the accused person, that, if he were guilty, it might cause convulsions and paleness and find no passage; but turn to health and nourishment if he were innocent. The sudden and fatal appeal to this trial by Godwin, Earl of Kent, in the year 1053, when accused of the murder of Ælfred, the brother of Edward the Confessor, ranks amongst the most curious traditions of English history. Hallam relates how ‘a citizen of London, suspected of murder, having failed in the ordeal of cold water, was hanged by order of Henry II., though he had offered five hundred marks to save his life. It appears as if the ordeal were permitted to persons already convicted by the verdict of a jury.’
Ordeals were abolished in England about the commencement of Henry III.’s reign. An edict dated January 27, 1219, directs the judges then starting on their circuits to employ other modes of proof, ‘seeing that the judgment of fire and water is forbidden by the Church of Rome.’ Matthew Paris, enumerating the notable occurrences of the first half of the thirteenth century, alludes to the disuse of the ordeal. But it was no easy matter to root out such a deep-rooted superstition, instances of which were of constant occurrence. Thus, the belief that the wounds of a murdered person would bleed afresh at the approach, or touch, of the murderer long retained its hold on the popular mind; and in a note to the Fair Maid of Perth, we are told how this bleeding of a corpse was urged as an evidence of guilt in the High Court of Justiciary at Edinburgh as late as the year 1668. An interesting survival of this notion still exists in the north of England, where we are told that ‘touching of the corpse by those who come to look at it is still expected by the poor who visit their house while a dead body is lying in it, in token that they wished no ill to the departed, and were in peace and amity with him.’
Another of the few ordeals that still linger in popular memory may be seen occasionally in some country village, where persons suspected of theft are made to hold a Bible hanging to a key, which is supposed to turn in the hands of the thief—a survival of the old classic and medieval ordeal described in Hudibras as ‘th’ oracle of sieve and shears, that turns as certain as the spheres.’ But instances of this kind are mostly confined to the uncultured part of the community, for, happily, ordeals have long since had their day, and are now discarded from the laws of the more civilised nations.