[CHAPTER XV.]
CONDITIONS OF THE ORDEAL.
The ordeal was thoroughly and completely a judicial process, ordained by the law for certain cases, and carried out by the tribunals as a regular form of ordinary procedure. From the earliest times, the accused who was ordered to undergo the trial was compelled to submit to it, as to any other decree of court. Thus, by the Salic law, a recusant was summoned to the royal court; and if still contumacious, he was outlawed and his property confiscated, as was customary in all cases of contempt.[1208] The directions of the codes, as we have seen, are generally precise, and admit of no alternative.[1209] Occasionally, however, a privilege of selection was afforded between this and other modes of compurgation, and also between the various forms of ordeal.[1210]
There was, however, a remarkable exception to this enforcement of the ordeal in a provision existing in some codes by which a man condemned to it could buy himself off by compounding with his adversary. This mode of adjustment was not extensively introduced, but it nevertheless existed among the Anglo-Saxons,[1211] while among the Franks it was a settled custom, permitted by all the texts of the Salic law, from the earliest to the latest.[1212] By this a person condemned by the court to undergo the ordeal could, by a transaction with the aggrieved party, purchase the privilege of clearing himself by canonical purgation, and thus escape the severer trial. He was bound to pay his accuser only a portion of the fine which he would incur if proved guilty—a portion varying with different offences from one-fourth to one-sixth of the wer-gild. The interests of the tribunal were guarded by a clause which compelled him to pay to the grafio, or judge, the full fredum, or public fine, if his conscience impelled him to submit to an arrangement for more than the legal percentage. Even as late as 1229, by the Bohemian laws of Ottokar Premislas the accused could escape the ordeal by paying seven deniers to the seigneur.[1213]
The circumstances under which its employment was ordered varied considerably with the varying legislations of races and epochs; and to enter minutely into the question of the power of the court to decree it, or the right to demand it by the appellant or the defendant, would require too much space, especially as this has already been discussed at some length with regard to one of its forms, the wager of battle. In India, the accused was required to undergo the risk of a fine if he desired to force his adversary to the ordeal; but either party could voluntarily undertake it, in which case the other was subject to a mulct if defeated.[1214] The character of the defendant, however, had an important bearing upon its employment. If he had already been convicted of a crime or of perjury he was subject to it in all cases, however trifling; if, on the other hand, he was a man of unblemished reputation, he was not to be exposed to it, however important was the case.[1215] In civil cases, however, it apparently was only employed to supplement deficient evidence.—“Evidence consists of writings, possession, and witnesses. If one of these is wanting, then one of the ordeals is valid.”[1216]
In Europe there appears at times to have been a custom under which, when the accused had escaped in the ordeal, the accuser was obliged to undergo it. Thus in the Frisian law, when a man accused of theft proved his innocence by the ordeal, the accuser was then obliged to clear himself of the charge of perjury by a similar trial,[1217] but the law fails to define what are their respective positions if the second ordeal proves likewise innocuous. In the case of bier-right quoted above from Scott’s Border Minstrelsy, this secondary ordeal seems to have been to prove whether the accuser herself was not the guilty person. In the heroic poems of the Elder Edda a similar trial appears to be resorted to, as in the Frisian laws, only for the purpose of showing the false witness borne by the accuser. When Gudrun the wife of Atli is defamed as an adulteress by the concubine Herkia, and is forced to the ordeal—
She to the bottom plunged
Her snow-white hand,
And up she drew
The precious stones.