Churchmen held that if the accused escaped in the ordeal the accuser was guilty of perjury and homicide and must atone for it by public penitence.[1219]
The absence of satisfactory testimony, rendering the case one not to be solved by human means alone is frequently, as in India, alluded to as a necessary element;[1220] and indeed we may almost assert that this was so, even when not specifically mentioned, as far as regards the discretion of the tribunal to order an appeal to the judgment of God. Yet there were some exceptions to this, as in the early Russian legislation, where the ordeal is prescribed for the accused in all cases in which the accusation is substantiated by testimony;[1221] and a law of King Ethelred seems to indicate that the plaintiff might require his adversary to submit to it,[1222] while numerous examples among those cited above authorize the conclusion that an offer on the part of the accused was rarely refused, even when there was strong evidence against him,[1223] though this laxity of practice was occasionally objected to stoutly.[1224] When the custom was declining, indeed, a disposition existed to require the assent of both parties before the tribunal would allow a case to be thus decided.[1225] In civil cases, we may assume that absence of testimony, or the consent of both parties, was requisite to its employment.[1226]
The comfort which the system must have afforded to indolent judges in doubtful cases is well exhibited by a rule in various ancient codes, by which a man suspected of crime, even though no accuser came forward, was thrown into prison and kept there until he could prove his innocence by the ordeal of water.[1227] No testimony was required save that of evil repute. Thus in Hungary, in the eleventh century, a man who was regarded as a thief by the whole village was subjected to the ordeal: if he was cleared, he paid the fee to the priest; if he was convicted, all his property was confiscated.[1228] This, in fact, was virtually the process adopted and systematized in England by the Assizes of Clarendon in 1166. The grand jury was directed to present all persons suspected of robbery, murder, theft, etc., when they were promptly sent to the water ordeal to prove their innocence.[1229] Thus it afforded an unfailing solution to all doubts and simplified greatly the administration of criminal law, for it was equally applicable to cases of individual prosecutions. In 1201, for instance, a widow accuses a man of the murder of her husband and the court rejects her appeal because it does not state that she saw the deed, but as the jurors when interrogated say that the accused is suspected of the crime, he is ordered at once to the ordeal.[1230]
We have seen above occasional instances in which the accuser or plaintiff offered to substantiate his veracity by an appeal to the ordeal. This was an established rule with regard to the wager of battle, but not as respects the other forms of the judgment of God, which were regarded rather as means of defence than of attack. Still there are occasional instances of instructions for their employment by the accusing party. In the primitive laws of Russia, an accuser who could not substantiate his case with witnesses was obliged to undergo the ordeal of red-hot iron.[1231] In England it seems to have been within the discretion of the court to order it for either the accuser or the accused. A very singular case is recorded in 1202, in which Astin of Wispington accused Simon of Edlington of assaulting him and putting out an eye, when the court adjudged the red-hot iron ordeal and gave to the defendant the option whether he or the prosecutor should undergo it; Simon naturally preferred that his antagonist should try the dangerous experiment, and the result was that the case was settled without it.[1232] We have already seen (p. 385) that in some places where the accused succeeded in clearing himself by the ordeal the accuser was obliged to undergo it in order to determine the question of his perjury.
Sometimes the ordeal was employed in connection with compurgation, both for prosecution and defence, to supplement the notorious imperfections of that procedure. Thus Archbishop Hincmar directs that cases of complaint against priests for dissolute life shall be supported by seven witnesses, of whom one must submit to the ordeal to prove the truth of his companions’ oaths, as a wholesome check upon perjury and subornation.[1233] With a similar object, the same prelate likewise enjoins it on compurgators chosen by the accused, on his failing to obtain the support of those who had been selected for him by his judge.[1234] Allied to this was a rule for its employment which was extensively adopted, allowing the accused the privilege of compurgation with conjurators in certain cases, only requiring him to submit to the ordeal on his failing to procure the requisite number of sponsors. Thus, in 794, a certain Bishop Peter, who was condemned by the Synod of Frankfort to clear himself, with two or three conjurators, of the suspicion of complicity in a conspiracy against Charlemagne, being unable to obtain them, one of his vassals offered to pass through the ordeal in his behalf, and on his success the bishop was reinstated.[1235] That this was strictly in accordance with usage is shown by a very early text of the Salic Law,[1236] as well as by a similar provision in the Ripuarian code.[1237] Among the Anglo-Saxons it likewise obtained, from the time of the earliest allusion to the ordeal occurring in their jurisprudence, down to the period of the Conquest.[1238] Somewhat similar in tendency was a regulation of Frederic Barbarossa, by which a slave suspected of theft was exposed to the red-hot iron unless his master would release him by an oath.[1239] Occasionally it was also resorted to when the accused was outsworn after having endeavored to defend himself by his oath or by conjurators. Thus a canon of the Council of Tribur in 895 declares that if a man is so generally suspected that he is outsworn in compurgation, he must either confess or submit to the hot-iron ordeal.[1240] Popular belief evidently might give to the accuser a larger number of men willing to associate themselves in the oath of accusation than the defendant could find to join him in rebutting it, and yet his guilt might not as yet be clear. In such cases, the ordeal was a most convenient resort.
These regulations give to the ordeal decidedly the aspect of punishment, as it was thus inflicted on those whose guilt was so generally credited that they could not find comrades to stand up with them at the altar as partakers in their oath of denial; and this is not the only circumstance which leads us to believe that it was frequently so regarded. This notion is visible in the ancient Indian law, where, as we have seen, certain of the ordeals—those of red-hot iron, poison, and the balance—could not be employed unless the matter at stake were equivalent to the value of a thousand pieces of silver, or involved an offence against the king;[1241] and it reappears in Europe in the graduated scale of single and triple ordeals for offences of different magnitudes. Such a scheme is so totally at variance with the theory of miraculous interposition to protect innocence and punish guilt, that we can only look upon it as a mode of inflicting graduated punishments in doubtful cases, thus holding up a certain penalty in terrorem over those who would otherwise hope to escape by the secrecy of their crime—no doubt with a comforting conviction, like that of Legate Arnaud at the sack of Béziers, that God would know his own. This same principle is visible in a provision of the charter of Loudun, granted by Louis le Gros in 1128, by which an assault committed outside of the liberties of the commune could be disproved by a simple sacramental oath; but if within the limits of the commune, the accused was obliged to undergo the ordeal.[1242] In another shape we see it in the customs of Tournay, granted by Philip Augustus in 1187, where a person accused of assault with sharpened weapons, if there were no witnesses, was allowed to purge himself with six conjurators if the affair occurred in the daytime, but if at night, was obliged to undergo the water ordeal.[1243] Further illustration is afforded by the principle, interwoven in various codes, by which a first crime was defensible by conjurators, or other means, while the tiht-bysig man, the homo infamatus, one of evil repute, whose character had been previously compromised, was denied this privilege, and was forced at once to the hot iron or the water. Thus, among the Anglo-Saxons, in the earliest allusion to the ordeal, by Edward the Elder, it is provided that perjured persons, or those who had once been convicted, should not be deemed thereafter oath-worthy, but should be hurried to the ordeal; a regulation repeated with some variations in the laws of Ethelred, Cnut, and Henry I.[1244] The Carlovingian legislation establishes a similar principle,[1245] while the canons of Burckhardt show it to be still in force in the eleventh century.[1246] A hundred and fifty years later, the legislation of Flanders manifests the same tendency, the code granted to Bruges in 1190 providing that a first accusation of theft should be decided by witnesses, while a second was to be met by the cold-water ordeal.[1247] In the German municipal law of the thirteenth century, the same principle is observable. A man who had forfeited his legal privileges by conviction for theft or similar crimes was no longer admitted to the oath, but on subsequent accusations was compelled to choose between the hot iron, the cauldron, and a combat with a champion; and similarly an officer of the mint issuing false money was permitted the first time to swear to his ignorance, but on a second offence he had to submit to the ordeal. In the codes in force throughout Germany, indeed, previous suspicion was sufficient to send the accused to the ordeal in place of the oath.[1248] The contemporary jurisprudence of Spain has a somewhat similar provision, by which a woman accused of homicide could not be exposed to the ordeal unless she could be proved utterly abandoned, for which a curious standard was requisite;[1249] while for more serious crimes, such as sorcery or killing her husband, she was forced at once to the red-hot iron to prove her innocence. In the legislation of Charlemagne there is an elaborate provision, by which a man convicted seven times of theft was no longer allowed to escape on payment of a fine, but was required to undergo the ordeal of fire. If he succumbed, he was put to death; if he escaped unhurt, he was not discharged as innocent, but his lord was allowed to enter bail for his future good behavior[1250]—a mode at once of administering punishment and of ascertaining whether his death would be agreeable to Heaven. When we thus regard it as a penalty on those who by misconduct had forfeited the confidence of their fellow-men, the system loses part of its absurdity, in proportion as it departs from the principle under which it was established.
There is also another aspect in which it is probable that the ordeal was viewed by those whose common sense must have shrunk from it as a simple appeal to the judgment of God. There can be little doubt that it was frequently found of material use in extorting confession or unwilling testimony. By the early codes, as in the primitive Greek and Roman law, torture could be applied only to slaves, and the ordeal was a legalized torture, applied under circumstances peculiarly provocative of truth, and as such we occasionally find regulations which enable the freeman to escape by compurgation, while the slave is required to undergo the ordeal.[1251] The elaborate nature of the ritual employed, with its impressive adjurations and exorcisms, was well fitted to excite the imagination and alarm the conscience; sometimes, indeed, to render it more effective, the mass celebrated was a mortuary one, which when sung for a living man was popularly believed to possess deadly powers of peculiar efficacy.[1252] In those ages of faith, the professing Christian, conscious of guilt, must indeed have been hardened who could undergo these awful rites, pledging his salvation on his innocence, and knowing under such circumstances that the direct intervention of Heaven could alone save him from having his hand boiled to rags,[1253] after which he was to meet the full punishment of his crime, and perhaps in addition lose a member for the perjury committed. With such a prospect, all motives would conspire to lead him to a prompt and frank acknowledgment in the early stages of the proceedings against him. These views are strengthened by the fact that when, in the thirteenth century, the judicial use of torture, as a means of obtaining testimony and confession, was becoming systematized and generally employed, the ordeal was falling into desuetude and rapidly disappearing. The latter had fulfilled its mission, and the former was a substitute better fitted for an age which reasoned more, believed less, and at the same time was quite as arbitrary and cruel as its predecessor. A further confirmation of this supposition is afforded by the coincidence that the only primitive jurisprudence which excluded the ordeal—that of the Wisigoths—was likewise the only one which habitually permitted the use of torture,[1254] the only reference to the ordeal in their code being a provision which directs its employment as a preliminary to the more regular forms of torture.
In fact, the ordeal was practically looked upon as a torture by those whose enlightenment led them to regard as a superstition the faith popularly reposed in it. An epistle which is attributed both to Stephen V. and Sylvester II. condemns the whole system on the ground that the canons forbid the extortion of confessions by heated irons and boiling water; and that a credulous belief could not be allowed to sanction that which was not permitted by the fathers.[1255] When, therefore, at the Council of St. Baseul, a priest named Adalger, in confessing the assistance he had rendered to Arnoul of Reims during Charles of Lorraine’s resistance to the usurpation of Hugh Capet, offered to substantiate his testimony by undergoing the ordeal, he did it in terms which show that he expected it to be regarded as a torture giving additional weight to evidence—“If any of you doubt this and deem me unworthy of belief, let him believe the fire, the boiling water, the glowing iron. Let these tortures convince those who disbelieve my words.”[1256] It is observable that he omits the cold-water as not being a torture, just as in the ancient Indian law the limitation referred to above as applicable to the red-hot iron, the poison, and the balance, did not apply to the cold-water ordeal, or to that in which was administered the water in which an idol had been dipped.[1257]
In the same way, some among the European ordeals, such as that of the Eucharist, of bread and cheese, and bier-right, do not come within the class of tortures, but they addressed themselves powerfully to the conscience and imagination of the accused, whose callous fortitude no doubt often gave way under the trial. In our own country, and almost within our own time, the latter ordeal was revived in one instance with this object, and the result did not disappoint the expectations of those who undertook it. In the case of People vs. Johnson, tried in New York in 1824, the suspected murderer was led from his cell to the hospital where lay the body of the victim, which he was required to touch. Dissimulation which had been before unshaken failed him at the awful moment; his overstrung nerves gave way, and a confession was faltered forth. The proceeding was sustained by court, and a subsequent attempt at retraction was overruled.[1258] The powerful influence of such feelings is shown in a custom which, as recently as 1815, was still employed at Mandeure, near Mont-belliard, and which is said to be even yet in use in some of the remoter districts of the Ardennes. When a theft has been committed, the inhabitants are summoned to assemble after vespers on Sunday at the place of judgment. There the mayor calls upon the guilty person to make restitution and live in isolation for six months. If this appeal prove fruitless, recourse is had to the trial of the staff, in which two magistrates hold aloft a piece of wood, under which every one is bound to pass. No instance, it is said, is on record in which the culprit dares to do this, and he is always left alone.[1259] Very similar to this is the use made of the Clog Oir or golden bell of St. Senan, the founder of the monastery of Inniscattery, at the mouth of the river Shannon, which was supposed to have peculiar virtue in revealing culprits. A case occurred as late as 1834, when a farmer, who had lost a sum of twenty pounds by a burglary, had the bell brought to his house with much ceremony, and the following Sunday was appointed for the whole parish to appear and clear themselves upon it. On Saturday night, however, the stolen bank notes were thrown through a window of his house.[1260] The method described above (p. 334), as practised in Southern Russia to detect household thieves, affords another example of the power exercised over a guilty conscience. It is easy thus to imagine how the other forms of ordeal may have conduced to the discovery of crime in ages of lively superstition. A case occurring about the commencement of the twelfth century is a fair illustration of the manner in which it frequently worked on the imagination of those whose lives or fortunes were at stake. André de Trahent, a vassal of the convent of St. Mary of Saintes, claimed certain property belonging to the convent. On the final hearing it was decreed that he must abandon his claim unless he could prove it by oath and ordeal. This he agreed to do, and on the appointed day he appeared with his men ready to undergo the trial. As there were two pieces of property in question, two ordeals were required. The caldrons of water were duly heated and André’s men were prepared for the attempt, when his courage gave way; he abruptly abandoned his claim and submitted himself to the mercy of the abbess.[1261]
This case illustrates the fact that in the vulgar ordeals as well as in the duel champions were sometimes allowed. To how great an extent this was permitted it would now be difficult to assert. It is not specially alluded to in any body of laws, but numerous examples of it have been incidentally given above, and in some of the ordines it is assumed as a matter of course. In one for the cold-water ordeal the substitutes are described as children who are made to fast for forty days in advance, and carefully watched and washed to prevent any illusions of the devil.[1262] In the ordeal of the cross, however, it was a recognized privilege of the old or infirm to put forward a substitute, and when communities or churches were pleaders a champion was of course a necessity. A still greater relaxation, occasionally permitted but not approved by the Church, was the practice of writing the name of the accused on paper or some other substance and submitting this to the ordeal in place of the individual himself.[1263] Perhaps the most illogical use of a champion in an ordeal is one suggested by Hincmar of Reims in 860, that a satisfactory person should undergo it in order to determine whether the secret motive alleged by another person for not living with his wife were true or not.[1264]