And prove himself the sire. All trembling lies
The mother, racked with anguish, knowing well
The truth, but forced to risk her cherished prize
On the inconstant waters’ reckless swell.[869]
The Teutonic tribes, anterior to their conversion, likewise exhibit the ordeal as a recognized resource in judicial proceedings. The Norræna branch, as we have seen, cultivated the holm-gang, or duel, with ardor, and they likewise employed the hot-water ordeal, besides a milder form peculiar to themselves entitled the skirsla, in which one of the parties to a suit could prove the truth of his oath by passing under a strip of turf raised so that it formed an arch with each end resting on the ground, the belief being that if he had forsworn himself the turf would fall on him as he passed beneath it.[870] The Germanic tribes, in their earliest jurisprudence, afford similar evidence of adherence to the customs of their eastern brethren. The most ancient extant recension of the Salic law may safely be assumed as coeval with the conversion of Clovis, as it is free from all allusions to Christian rules, such as appear in the later versions, and in this the trial by boiling water finds its place as a judicial process in regular use.[871] Among the Bavarians, the decree of Duke Tassilo in 772 condemns as a relic of pagan rites a custom named stapfsaken, used in cases of disputed debt, which is evidently a kind of ordeal from the formula employed, “Let us stretch forth our right hands to the just judgment of God!”[872]
The Slavs equally bear witness to the ancestral practice of the ordeal as a judicial process. The prauda jeliezo, or hot-iron ordeal, was in use among them in early times.[873] In Bohemia, the laws of Brzetislas, promulgated in 1039, make no allusion to any other form of evidence in contested cases, while in Russia it was the final resort in all prosecutions for murder, theft, and false accusation.[874]
As the Barbarians established themselves on the ruins of the Roman Empire and embraced Christianity they, with one exception, cultivated the institution of the ordeal with increased ardor. This exception is found in the Gothic nations, and is ascribable, as we have seen when treating of the judicial combat, to the influence of the Roman customs and laws which they adopted. For nearly two centuries after their settlement, there is no allusion in their body of laws to any form of ordeal. It was not until 693, long after the destruction of their supremacy in the south of France, and but little prior to their overthrow in Spain by the Saracens, that King Egiza, with the sanction of a Council of Toledo, issued an edict commanding the employment of the æneum or ordeal of boiling water.[875]
Various causes were at work among the other tribes to stimulate the favor with which the ordeal was regarded. As respects the wager of battle I have already traced its career as a peculiarly European form of the Judgment of God, which was fostered by the advantage which it gave, in the times of nascent feudalism, to the bold and reckless. With regard to the other forms, one reason for their increased prevalence is doubtless to be found in the universal principle of the Barbarians, in their successive settlements, to allow all races to retain their own jurisprudence, however much individuals might be intermingled, socially and politically. The confusion to which this gave birth is well set forth by St. Agobard, when he remarks that frequently five men shall be found in close companionship, each one owning obedience to a different law. He also states that under the Burgundian rules of procedure, no one was allowed to bear witness against a man of different race.[876] Under these circumstances, in a large proportion of cases there could be no legal evidence attainable, and recourse was had of necessity to the Judgment of God. Even when this rule was not in force, a man who appealed to Heaven against the testimony of a witness of different origin would be apt to find the court disposed to grant his request. If the judge, moreover, was a compatriot of one of the pleaders, the other would naturally distrust his impartiality, and would prefer to have the case decided by the Omniscient whose direct interposition he was taught to regard as undoubted. That the assumed fairness of the ordeal was highly prized under such circumstances we have evidence in the provisions of a treaty between the Welsh and the Saxons, about the year 1000, according to which all questions between individuals of the two races were to be settled in this manner, in the absence of a special agreement between the parties.[877]
The most efficient cause of the increased use of the ordeal was, however, to be found in the Church. With her customary tact, in converting the Barbarians, she adopted such of their customs as she could adapt to Christian belief and practice; and she accepted the ordeal as an undoubted appeal to God, whose response was regarded as unquestionable, warrant being easily found for this in the Jewish practices already described. The pagan ceremonies were moulded into Christian rites, and the most solemn forms of religion were thrown around the rude expedients invented thousands of years before by the Bactrian nomads. Elaborate rituals were constructed, including celebration of mass and impressive prayers, adjurations and exorcisms of the person to undergo the trial and of the materials used in it, and the most implicit faith was inculcated in the interposition of God to defend the right and to punish guilt.[878] The administration of the ordeal being thus reserved for priestly hands, the Church acquired a vastly increased influence as the minister of justice, to say nothing of the revenues thence arising, and the facility with which ecclesiastics could thus defend themselves when legally assailed by their turbulent flocks. We are not without evidence of the manner in which the church thus favored the use of this Christianized paganism, and introduced it along with Christianity among people to whom it was previously unknown. Thus among the Turanian Majjars, the laws of King Stephen, promulgated in 1216, soon after his conversion, contain no allusion to the ordeal, but in those of Ladislas and Coloman, issued towards the end of the century, it is found, in its various forms, thoroughly established as a means of legal proof.[879] So, when in the twelfth century Bishop Geroldus converted the Slavs of Mecklenburg, they were at once forbidden to settle questions by oaths taken on trees, fountains, and stones, as before, but were required to bring their criminals before the priest to be tried by the hot iron or ploughshares.[880] Under the Crusaders, the ordeal was carried back towards the home of its birth, even contaminating the Byzantine civilization, and various instances of its use are related by the historians of the Lower Empire to a period as late as the middle of the fourteenth century.
The ingenuity of the church and the superstition of the people increased somewhat the varieties of the ordeal which we have seen employed in the East. Besides the judicial combat, the modes by which the will of Heaven was ascertained may be classed as the ordeal of boiling water, of red-hot iron, of fire, of cold water, of the balance, of the cross, of the corsnœd or swallowing bread or cheese, of the Eucharist, of the lot, bier-right, oaths on relics, and poison ordeals. In some of these, it will be seen, a miraculous interposition was required for an acquittal, in others for a condemnation; some depended altogether on volition, others on the purest chance; while others, again, derived their efficacy from the influence exerted over the mind of the patient.