Although the cold-water ordeal disappears from the statute-book in civil and in ordinary criminal actions together with its kindred modes of purgation, there was one class of cases in which it maintained its hold upon the popular faith to a much later period. These were the accusations of sorcery and witchcraft which form so strange a feature of mediæval and modern society; and its use for this purpose may apparently be traced to various causes. For such crimes, drowning was the punishment inflicted by the customs of the Franks, as soon as they had lost the respect for individual liberty of action which excluded personal punishments from their original code;[1027] and in addition to the general belief that the pure element refused to receive those who were tainted with crime, there was in this special class of cases a widely spread superstition that adepts in sorcery and magic lost their specific gravity. Pliny mentions a race of enchanters on the Euxine who were lighter than water—“eosdem præterea non posse mergi ne veste quidam degravatos;”[1028] and Stephanus Byzantinus describes the inhabitants of Thebe as magicians who could kill with their breath, and floated when thrown into the sea.[1029] To the concurrence of these notions we may attribute the fact that when the cold-water ordeal was abandoned, in the thirteenth century, as a judicial practice in ordinary cases, it still maintained its place as a special mode of trying those unfortunate persons whom their own folly, or the malice and fears of their neighbors, pointed out as witches and sorcerers.[1030] No less than a hundred years after the efforts of Innocent III. had virtually put an end to all the other forms of vulgar ordeals, we find Louis Hutin ordering its employment in these cases.[1031] At length, however, it fell into desuetude, until the superstitious panic of witchcraft which took possession of the popular mind caused its revival in the second half of the sixteenth century. In 1487, Sprenger, while treating of every possible detail concerning witchcraft and its prosecution, and alluding to the red-hot iron ordeal, makes no reference whatever to cold water or to the faculty of floating possessed by witches, thus showing that it had passed completely out of remembrance as a test in these cases, both popularly and judicially.[1032] In 1564, Wier discusses it as though it were in ordinary use in Western Germany, and mentions a recent case wherein a young girl falsely accused was tested in this manner and floated, after which she was tortured until the executioner himself wondered at her power of endurance. As no confession could be extracted, she was discharged, which shows how little real confidence was reposed in the ordeal.[1033] Twenty years later, Scribonius, writing in 1583, speaks of it as a novelty, but Neuwald assures us that for eighteen years previous it had been generally employed throughout Westphalia,[1034] and in 1579 Bodin alludes to it as a German fashion which, though he believes in its efficacy, he yet condemns as savoring of magic.[1035] The crime was one so difficult to prove judicially, and the ordeal offered so ready and so satisfactory a solution to the doubts of timid and conscientious judges, that its resuscitation is not to be wondered at. The professed demonographers, Bodin, Binsfeld, Godelmann, and others, opposed its revival for various reasons, but still it did not lack defenders. In 1583, Scribonius, on a visit to Lemgow, saw three unfortunates burnt as witches, and three other women, the same day, exposed to the ordeal on the accusation of those executed. He describes them as stripped naked, hands and feet bound together, right to left, and then cast upon the river, where they floated like logs of wood. Profoundly impressed with the miracle, in a letter to the magistrates of Lemgow he expresses his warm approbation of the proceeding, and endeavors to explain its rationale, and to defend it against unbelievers. Sorcerers, from their intercourse with Satan, partake of his nature; he resides within them, and their human attributes become altered to his; he is an imponderable spirit of air, and therefore they likewise become lighter than water. Two years later, Hermann Neuwald published a tract in answer to this, gravely confuting the arguments advanced by Scribonius, who, in 1588, returned to the attack with a larger and more elaborate treatise in favor of the ordeal. Shortly after this, Bishop Binsfeld, in his exhaustive work on witchcraft, states that the process was one in common use throughout Westphalia, and occasionally employed in the Rhinelands. He condemns it, however, on the score of superstition, and the prohibition of all ordeals by the popes, and concludes that any judge making use of it, or any one believing in it, is guilty of mortal sin. Rejecting the explanation of Scribonius, he argues that the floating of the witch is caused by the direct interposition of the Devil himself, who is willing to sacrifice a follower occasionally in order to damn the souls of those who participate in a practice condemned by the Church.[1036] Wier, who denied witchcraft, while believing in the active interposition of the Devil, argues likewise that those who float are borne up by demons, but he attributes it to their desire to confirm the popular illusions concerning witchcraft.[1037] Another demonographer of the period, Godelmann, does not hesitate to say that any judge resorting to this mode of proof rendered himself liable to a retaliatory action; and he substantiates his opinion as to the worthlessness of the trial by a case within his own experience. In 1588 he was travelling from Prussia to Livonia, when at the castle of a great potentate his host happened to mention that he had condemned a most wicked witch to be burnt the next day. Godelmann, desirous to know whether the proof could be relied on, asked whether the water ordeal had been tried, and on being answered in the negative, urged the experiment. His request was granted, and the witch sank like a stone. Subsequently the noble wrote to him that he had tried it with six other indubitable witches, and that it had failed with all, showing that it was a false indication, which might deceive incautious judges.[1038] Oldenkop, on the other hand, relates that he was present when some suspected women were tried in this manner, who all floated, after which one of the spectators, wholly innocent of the crime, to satisfy the curiosity of some nobles who were present, allowed himself for hire to be tied and thrown in, when he likewise floated and could not be made to sink by all the efforts of the officiating executioner.[1039] In 1594, a more authoritative combatant entered the arena—Jacob Rickius, a learned jurisconsult of Cologne, who, as judge in the court of Bonn, had ample opportunity of considering the question and of putting his convictions into practice. He describes vividly the perplexities of the judges hesitating between the enormity of the crime and the worthlessness of the evidence, and his elaborate discussions of all the arguments in favor of the ordeal may be condensed into this: that the offence is so difficult of proof that there is no other certain evidence than the ordeal; that without it we should be destitute of absolute proof, which would be an admission of the superiority of the Devil over God, and that anything would be preferable to such a conclusion. He states that he never administered it when the evidence without it was sufficient for conviction, nor when there was not enough other proof to justify the use of torture; and that in all cases it was employed as a prelude to torture—“præparandum et muniendum torturæ viam”—the latter being frequently powerless in consequence of diabolical influences. The deplorable examples which he details with much complacency as irrefragable proofs of his positions show how frequent and how murderous were the cases of its employment, but would occupy too much space for recapitulation here; while the learning displayed in his constant citations from the Scriptures, the Fathers, the Roman and the Canon Law, is in curious contrast with the fatuous cruelty of his acts and doctrines.
In France, the central power had to be invoked to put an end to the atrocity of such proceedings. In 1588, an appeal was taken to the supreme tribunal from a sentence pronounced by a Champenois court, ordering a prisoner to undergo the experiment, and the Parlement, in December, 1601, registered a formal decree against the practice; an order which it found necessary to repeat, August 10, 1641.[1040] That this latter was not uncalled for, we may assume from the testimony of Jerôme Bignon, who, writing nearly at the same time, says that, to his own knowledge, within a few years, judges were in the habit of elucidating doubtful cases in this manner.[1041] In England, James I. gratified at once his conceit and his superstition by eulogizing the ordeal as an infallible proof in such cases. His argument was the old one, which pronounced that the pure element would not receive those who had renounced the privileges of the water of baptism,[1042] and his authority no doubt gave encouragement to innumerable judicial murders. In Scotland, indeed, the indecency of stripping women naked for the immersion was avoided by wrapping them up in a sheet before binding the thumbs and toes together, but a portion of the Bay of St. Andrews is still called the “Witch Pool,” from its use in the trial of these unfortunates.[1043]
How slowly the belief was eradicated from the minds of even the educated and enlightened may be seen in a learned inaugural thesis presented by J. P. Lang, in 1661, for the Licentiate of Laws in the University of Bâle, in which, discussing incidentally the question of the cold-water ordeal for witches, he concludes that perhaps it is better to abstain from it, though he cannot question its efficaciousness as a means of investigation.[1044] In 1662, N. Brant, in a similar thesis, offered at Giessen, speaks of it as used in some places, chiefly in Westphalia, and argues against it on the ground of its uncertainty.[1045] P. Burgmeister, in a thesis presented at Ulm in 1680, speaks of the practice as still continued in Westphalia, and that it was defended by many learned men, from whose opinions he dissents; among them was Hermann Conring, one of the most distinguished scholars of the time, who argued that if prayers and oaths could obtain the divine interposition, it could reasonably be expected in judicial cases of importance.[1046] Towards the close of the century it was frequently practised in Burgundy, not as a judicial process, but when persons popularly reputed as sorcerers desired to free themselves from the damaging imputation. In these cases they are frequently reported as floating in spite of repeated efforts to submerge them, and though this evidence of guilt did not lead to a formal trial they would have to abandon the neighborhood. A notarial act of June 5, 1696, records such a trial at Montigny-le-Roi, when six persons offered themselves to the ordeal in the River Senin; two sank and four floated for about half an hour, with hands and feet tied.[1047] F. M. Brahm, in 1701, alludes to the ordeal as no longer in use;[1048] but in 1714, J. C. Nehring describes it as nearly, though not quite obsolete, and considers it worthy of an elaborate discussion. He disapproves of it, though he records a case which occurred a few years previously, in which a woman accused of witchcraft managed to escape from her chains, and went into the water to try herself, and could not be submerged. Notwithstanding this he declares that even when a prisoner demands the ordeal, the judge who grants it is guilty of mortal sin, for the Devil often promises witches to save them in this manner, and, though he very rarely keeps his promise, still he thus succeeds in retaining men in superstitious observances. The success of the ordeal thus is uncertain, and his conclusion is that laws must be made for the generality of cases, and not for exceptional ones.[1049] In 1730 thirteen persons were exposed to the cold-water ordeal at Szegedin, in Hungary, and though their guilt was proved by it, any remaining doubts were settled by submitting them to the balance;[1050] and five years later Ephraim Gerhardt alludes to it as everywhere in daily use in such cases.[1051] Even in the middle of the century, the learned and pious Muratori affirms his reverent belief in the miraculous convictions recorded by the mediæval writers as wrought in this manner by the judgment of God; and he further informs us that it was common in his time throughout Transylvania, where witches were very numerous;[1052] while in West Prussia, as late as 1745, the Synod of Culm describes it as a popular abuse in frequent use, and stringently forbids it for the future.[1053]
Although, within the last hundred years, the cold-water ordeal has disappeared from the authorized legal procedures of Europe, still the popular mind has not as yet altogether overcome the superstitions and prejudices of so many ages, and occasionally in some benighted spot a case occurs to show us that mediæval ignorance and brutality still linger amid the triumphs of modern civilization. In 1815 and 1816, Belgium was disgraced by trials of the kind performed on unfortunates suspected of witchcraft;[1054] and in 1836, the populace of Hela, near Dantzic, twice plunged into the sea an old woman reputed to be a sorceress, and as the miserable creature persisted in rising to the surface, she was pronounced guilty, and was beaten to death.[1055] Even in England it is not many years since a party of credulous people were prosecuted for employing the water ordeal in the trial of a woman whom they believed to be a witch.[1056]
In Montenegro and Herzegovina the practice continued till the middle of the present century. Any unusual mortality of children was attributed to sorcery by women: in such cases the head of a village assembled all the men and exhorted them to bring next morning their wives and mothers to the nearest water—a lake or a river, or if necessary a well. The women were then examined one by one, by passing a rope under the arms and tossing them in, without divesting them of their clothes. Those who were so ill-advised as not to sink were pronounced guilty, and were liable to lapidation if they would not swear to abandon their evil practices. The belief even extended to the dominant Turks who, in 1857 at Trebinje, compelled the Christians to bring all their women to the river and cast them in. Buoyed up by their garments seven floated, and these were only saved from stoning by the archimandrite Eustache, who administered to them a solemn oath of abstinence from witchcraft. Austrian domination has rendered all such proceedings unlawful of late years, but in the remoter districts they are said to be still occasionally practised.[1057]
Perhaps we may class as a remnant of this superstition a custom described by a modern traveller as universal in Southern Russia. When a theft is committed in a household, the servants are assembled, and a sorceress, or vorogeia, is sent for. Dread of what is to follow generally extorts a confession from the guilty party without further proceedings, but if not, the vorogeia places on the table a vase of water and rolls up as many little balls of bread as there are suspected persons present. Then, taking one of the balls, she addresses the nearest servant—“If you have committed the theft, this ball will sink to the bottom of the vase, as will your soul in Hell; but if you are innocent, it will float on the water.” The truth or falsehood of this assertion is never tested, for the criminal invariably confesses before his turn arrives to undergo the ordeal.[1058]
[CHAPTER VI.]
THE ORDEAL OF THE BALANCE.
We have seen above that a belief existed that persons guilty of sorcery lost their specific gravity, and this superstition naturally led to the use of the balance in the effort to discover and punish the crime of witchcraft, which all experts assure us was the most difficult of all offences on which to obtain evidence. The trial by balance, however, was not a European invention. Like nearly all the other ordeals, it can be traced back to India, where, at least as early as the time of the Institutes of Vishnu, it was in common use. It is described there as reserved for women, children, old men, invalids, the blind, the lame, and the privileged Brahman caste, and not to be undertaken when a wind was blowing. After proper ceremonies the patient was placed in one scale, with an equivalent weight to counterbalance him in the other, and the nicety of the operation is shown by the prescription that the beam must have a groove with water in it, evidently for the purpose of detecting the slightest deflection either way. The accused then descended and the judge addressed the customary adjuration to the balance:—
“Thou, O balance, art called by the same name as holy law (dharma); thou, O balance, knowest what mortals do not comprehend.
“This man, arraigned in a cause, is weighed upon thee. Therefore mayest thou deliver him lawfully from this perplexity.”