This mode of purgation, the scholiast tells us, was in common use at that time.
There was also the water ordeal, and a certain fountain near Ephesus was specially employed for this purpose. As soon as the accused had sworn to her innocence, she entered the water with a tablet affixed to her neck, on which was inscribed her oath. If she were innocent, the water remained stationary; but if guilty, it gradually rose until the tablet floated. Traces of the same system are to be met with in the history of ancient Rome; and amongst notable instances may be quoted that of the vestal Tucca, who proved her purity by carrying water in a sieve; and that of Claudia Quinta, who cleared her character by dragging a ship against the current of the Tiber, after it had run aground, and resisted every effort made to remove it. But, as Mr Lea points out in his essay on The Ordeal, ‘instances such as these had 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, 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 ordeal trial prevailed in France from before the time of Charlemagne down to the eleventh century. The ancient Germans, too, were in the habit of resorting to divination; and their superstitious notions, writes Mr Gibson, led them to invent many methods of purgation or trial now unknown to the law. It should be added, also, that the Germans were specially tardy in throwing off this relic of barbarism; for, at a period when most vulgar ordeals were falling into disuse, the nobles of Southern Germany established the water ordeal as the mode of deciding doubtful claims on fiefs; and in Northern Germany it was instituted for the settlement of conflicting titles on land. Indeed, as recently as the commencement of the present century, the populace of Hela, near Danzig, twice plunged into the sea an old woman, reputed to be a sorceress, who, on persistently rising to the surface, was pronounced guilty, and beaten to death. Grotius mentions many instances of water ordeal in Bithynia, Sardinia, and other countries, having been in use in Iceland from a very early period.
In the primitive jurisprudence of Russia, ordeal by boiling water was enjoined in cases of minor importance; and in the eleventh century we find burning iron ordered ‘where the matter at stake amounted to more than half a grivna of gold.’ A curious survival of ordeal superstition still prevails to a very large extent in Southern Russia. When a theft is committed in a household, the servants are summoned together, and a sorceress is sent for. Should no confession be made by the guilty party, the sorceress rolls up as many little balls of bread as there are suspected persons present. She then takes one of these balls, and addressing the nearest servant, uses this formula: ‘If you have committed the theft, the ball will sink to the bottom of the vase; but if you are innocent, it will float on the water.’ The accuracy of this trial, however, is seldom tested, as the guilty person invariably confesses before his turn arrives to undergo the ordeal.
Again, in Spain, trial by ordeal was largely practised; and it may be remembered how, during the pontificate of Gregory VII., it was debated whether the Gregorian ritual or the Mozarabic ritual contained the form of worship most acceptable to the Deity. When the chance of deciding this contest amicably seemed hopeless, the nobles resolved to arrange the controversy in their customary manner, and, according to the historian Robertson, the champions—one chosen by either side—met and fought. But in the year 1322, in Castile and Leon, the Council of Palencia threatened with excommunication all concerned in administering the ordeal of fire or water—a circumstance which is important, as pointing to the disappearance of this mode of trial in Spain.
Furthermore, the practice of trial by ordeal was under the Danish kings substituted for the trial by combat, which, until the close of the ninth century, had been resorted to among the Danes for the detection of guilt and the acquittal of innocence. In Sweden, says Mr Gibson, the clergy ‘presided at the trial by ordeal; and it was performed only in the sanctuary, or in the presence of ministers of the church, and according to a solemn ritual.’ And yet, as he rightly observes, its abolition in Europe was due to the continued remonstrances of the clergy themselves. One form of ordeal practised in Sweden was popularly known as the trux iarn, and consisted in the accused carrying a red-hot iron, and depositing it in a hole twelve paces from the starting-point. In accordance with the accustomed mode of procedure, the accused fasted on bread and water on Monday and Tuesday, the ordeal being held on Wednesday, previous to which the hand or foot was washed. It was then allowed to touch nothing until it came in contact with the iron, after which it was wrapped up and sealed until Saturday, when it was opened in the presence of the accuser and the judges.
In the years 1815 and 1816, Belgium, says Mr Lea, was disgraced by ordeal trials performed on unfortunate persons suspected of witchcraft; and in 1728, in Hungary, thirteen persons suspected of a similar offence were, by order of the court, subjected to the ordeal of cold water, and then to that of the balance. Referring to the ordeal of the balance, Mr Tylor informs us that the use of the Bible as a counterpoise is on record as recently as 1759, at Aylesbury in this country, where one Susannah Haynokes, accused of witchcraft, was formally weighed against the Bible in the parish church. In Lombardy, ordeal by hot water was a form of procedure much resorted to; and in Burgundy this was also supplemented by the trial by hot iron.
The instances thus quoted show how universally practised throughout Europe in bygone years was the trial by ordeal; and if we would still see it employed with the enthusiastic faith of the middle ages, we must turn to eastern countries, where, owing to the slow advance of civilisation, many of their institutions still retain their primitive form. Indeed, as Mr Isaac Disraeli remarks, ‘ordeals are the rude laws of a barbarous people who have not yet obtained a written code, and not advanced enough in civilisation to enter into the refined inquiries, the subtle distinctions, and elaborate investigations which a court of law demands.’ This is specially true in the case of India at the present day, where the same ordeals are practised as were in use five or six centuries ago. Thus, the guilt or innocence of an accused person is still tested by his ‘ability to carry red-hot iron, to plunge his hand unhurt in boiling oil, to pass through fire, to remain under water, to swallow consecrated rice, to drink water in which an idol has been immersed, and by various other forms which retain their hold on public veneration.’ Professor Monier Williams, too, says that trial by ordeal is recognised by the code of Manu, and quotes the subjoined rules: ‘Let him cause a man (whose veracity is doubted) to take hold of fire, or dive under water, or touch the heads of his wife and sons one by one. The man whom flaming fire burns not and water forces not up, and who suffers no harm, must be instantly held innocent of perjury.’
In Japan, ordeals extensively prevail; and amongst the many superstitious practices kept up, we are told how the ‘goo’—a paper inscribed with certain cabalistic characters—is rolled up and swallowed by an accused person, this being commonly supposed to give him no internal rest, if guilty, until he confesses. A similar mode of procedure is practised by the Siamese, and under a variety of forms was prevalent in former years. With it, too, we may compare the mouthful of rice taken by all of a suspected household in India, which the thief’s nervous fear often prevents him from swallowing.
Formerly, this practice was observed in our own country with the corsned or trial-slice of consecrated bread or cheese. Even now, says Mr Tylor, peasants have not forgotten the old formula: ‘May this bit choke me if I lie.’