Buddhism naturally followed the legal institutions which it found established, and accepted the ordeal, though it could scarce form a logical incident in the great system of transmigration whereby the good and evil of the universe distributed itself automatically, without supervision from the thirty-two heavens. We have seen the influence which Buddhism exercised on Chinese materialism, and Tibetan Shamanism could hardly expect to escape it. Thus in Tibet we find the hot water ordeal assume a form which is literally even-handed, and which, if generally enforced, must exert a happily repressive influence over litigation. Both plaintiff and defendant thrust their arms into a caldron of boiling water containing a black and a white stone, the verdict being in favor of him who brings up the white.[861]
The Hellenic tribes had already, in prehistoric times, reached a point of mental development superior to the grosser forms of the ordeal as a recognized instrument of judicial investigation. These were replaced, as we have seen in Egypt, by habitual resort to oracles, but that some recollection of the ancestral practices was handed down to later ages is shown by the allusions in the Antigone of Sophocles, when the guards protest to Creon their innocence as to the burial of Polynices, and offer to prove it by the ordeal:—
“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” (264-267).
And a remnant of the primæval customs was preserved in the solemnities under which litigation was sometimes determined by one of the parties taking an oath on the heads of his children, or with curses on himself and his family, or passing through fire.[862] The poison ordeal, also, was not wholly obsolete. The Gæum or temple of the broad-breasted Earth, Gæa Eurysternus, at Ægæ in Achaia, was served by a priestess who, though not necessarily a virgin, was yet required to preserve strict celibacy when once invested with her sacred functions. If any doubts arose as to her virtue, it was tested with a draught of bull’s blood, which speedily wrought her punishment if she was guilty. The same temple also furnished an illustration of ascertaining the divine will by means of the lot, for when a vacancy occurred in the priestship, and there were several applicants, the choice between them was determined by a reference to chance.[863]
Even these traces of the ancient customs of the race disappear among the Latins, though they preserved in full force the habits of thought from which the ordeal took its rise. This is seen in the most solemn form of imprecation known to the Romans as lending irrevocable force to promissory oaths—the “Jovem lapidem jurare,”—whether we take the ceremony mentioned by Festus, of casting a stone from the hand while adjuring Jupiter to reject in like manner the swearer if he should prove forsworn, or the form described by Livy as preceding the combat between the Horatii and Curiatii, in which a victim was knocked on the head with a stone under a somewhat similar invocation.[864] Even without this ceremony, imprecatory oaths were used which were based on the belief that the gods would take men at their word and punish them, for forswearing themselves, with the evils which they thus invoked. Thus, after the battle of Cannæ, P. Cornelius Scipio forced the nobles who were plotting to leave Italy to abandon their design and take an oath in which they adjured Jupiter to visit them and all belonging to them with the worst of deaths if they proved false.[865] In the legends of Rome, moreover, sporadic instances may be found of special miraculous interposition to decide the question of innocence or guilt, when the gods properly appealed to would intervene to save their worshippers. These manifestations were principally vouchsafed in favor of the Vestals, as when the pupil of Æmilia was accused of having allowed the sacred fire to be extinguished, and was preserved by its spontaneous ignition on her placing the skirt of her garment upon the altar; or when Tucca, falsely arraigned for unchastity, vindicated her purity by carrying water in a sieve; or when Claudia Quinta, under a similar charge, made good her defence by dragging, with a slender cord, a ship against the rapid current of the Tiber after it had run aground and resisted all efforts to move it—and this with an invocation to the goddess to absolve or condemn her, as she was innocent or guilty, which gives to the affair a marked resemblance to an established form of judicial ordeal.[866] Occasional instances such as these had, however, 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, as we shall see hereafter, 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 maxim of the civil law—“Accusatore non probante, reus absolvitur”—is entirely incompatible with the whole theory upon which the system of ordeals is based.[867]