In Sir Walter Scott’s “Minstrelsy of the Scottish Border” we also find a reference to this ordeal of the bier, when, in the ballad of Earl Richard, this author established the innocence of the maid, by this test:
And thus Scott uses the ordeal of the bier to establish that the accuser was herself the guilty person[74] and the Bard of Avon and the Elder Edda utilize this ordeal and that of the boiling water, to demonstrate the infallibility of this Divine test, when applied, to ascertain the guilt or innocence of one accused of such crimes as may legitimately be the subject of this character of proceeding, known to the ancient law as one of the Judgments of God.
The ordeal was entirely a judicial proceeding, regularly used, in an early day, for the trial of criminal cases, before the civil and ecclesiastical courts. The accused had no alternative but to undergo the trial by ordeal, for when ordered to submit to it, the order had the force and effect of a regular judgment of the court.[75] A failure to comply with the order of the court to undergo a trial by ordeal, was treated as a contempt of court, and under the early English law, the accused who refused to submit to such a test, was outlawed and his property was confiscated, the same as if he had been adjudged guilty of the offense, for in refusing a compliance with the mandate of the law, he placed himself beyond the pale of the law and later could not claim the right to a lawful trial.[76] The Anglo-Saxon codes allowed no alternative but contained direct and specific provisions for the trial by ordeal, in all its different phases.[77]
The circumstances and conditions under which ordeal was employed, in the trial of the various felonies known to the early Saxon laws, varies, necessarily, with the customs and legislation of the different rulers, and sometimes we find that the right of selection obtained, between this and other modes of compurgation, or between the different forms of ordeal.[78]
Little, if any good, could result from a discussion of the power of a Court to order submission to such barbarous treatment, for the courts assumed the power and it was backed-up with the influence of the Church and the authority of the King. The citizens could do little else than submit to such a formidable alliance, which proceeded in the name of the Majesty of the Law and the Solemn Assurance of the Church, for there were no constitutions to protect the citizens from cruel or unusual punishments; might was right when used against the weak and oppressed and the power of the Church and State was too much for any individual to overcome. Society was not organized, as at present, to protect the rights of the individual, but the Church and State were all-powerful and their orders had the force to overcome all private resistance.
As shown, in the beginning, the institution known as trial by ordeal, like many other of the cruel customs of the ancient world, had the Mosaic law as its foundation and the Church’s approval, in the construction of the foundation and the recognition of the whole institution. The Church was not only ready to accept the barbarous practices of its pagan converts but itself gave them fresh claim to confidence, by throwing around them the solemn ceremonies of its own approval. The ordeals were all conducted with the aid of the priests, and prelates in all the Catholic countries were everywhere granting special charters authorizing the privilege of trials by ordeals.[79]
But as the Church was partly responsible for the practice of trials by ordeal, because the Churchmen were but human and, as such, entered into the manners and customs of the people of the period when they lived, the Church had no inconsequential part in abolishing this barbarous custom, for ever since the sixth century and perhaps from the beginning of the custom, eminent Churchmen had opposed the institution as a pagan custom, not authorized by the teachings of the ancient Jews or the religion of Christ, and finally, the protests of these wise Churchmen culminated in the suppression of this old test, and in 1215 the Lateran Council forbade the clergy from afterward taking part in the ceremony known as trial by ordeal.[80] And Henry III., following the lead made by the Church, “Seeing that the judgment of fire and water is forbidden by the Church of Rome,” directed his judges, starting on their circuits, to adopt other methods of proof and to forever discard this brutal test.[81]
If the Church was remiss in its duty to oppose the ordeal, therefore, in the beginning, it brought about the repression of the practice, and is, at least, entitled to the benefit of the approval of the friends of humanity for this tardy beneficence, upon its part.
If true that every age, like every person, has its own sins and short-comings to answer for, and that is the happiest which best succeeds in hiding them for a time,[82] then the age of the trial by ordeal, according to our twentieth century standard, was guilty of a sin that the past centuries must atone for, if atonement is essential for the wayward customs of a pagan race, struggling without compass or needle, amid the darkness of a barbarous age, to steer a straight course. They should not be held to more than the ordinary standards of right and wrong then prevailing, in their efforts to find the higher law for society, when just able to attempt to clamber up the mountain heights of wisdom. The inhabitants of the centuries who utilized the trial by ordeal had not then perfected their judicial system so that very high ideals of individual right obtained, but they had made wonderful strides in the arts and sciences, while practicing this hideous custom of trusting to the wisdom of God, in the trials of men and women for their offenses against society, as judged by man made laws. We have elevated the standards of the judicial system somewhat, since that period, but in our own time, a large number of people, instead of further establishing the independence of the judiciary, are favorable to submitting to popular vote, the correctness of a given decision, or the judicial fitness of a judge; mormonism only recently was abolished and instead of the superstition and delusion which invoked the judgment of God in trials of witches and others accused of unproven crimes, we have spiritualism and other similar protests against rationalism and reason, so we are not yet in a position to condemn, in unmeasured terms, our older brothers of the day of trials by ordeal.
FOOTNOTES:
[1] Pattetta, Ordalia, c. I.
[2] From the Anglo-Saxon, Ordaal, or, primitive, and daal, judgment, meaning “primitive judgment,” or urtheil, according to the German.
[3] Thayer says: “Nothing is older,” Harvard Law Review, Vol. V., p. 63; II. Essays in Anglo-American Legal History, 392.
[4] Numbers, V., 14, 15, 19, 24, 27, 28.
This same ordeal is in use among the Africans, of the Gold Coast, to determine incontinence on the part of a woman.
From Herodotus it would seem that the ancient Egyptians believed in ordeals, with other divine power, to solve the guilt of prisoners, in cases where the evidence was doubtful, as he narrates instances where Aames II. who led a dissolute life, was convicted on the supposed divine judgment of the oracle. Herodotus II., 174.
In their excellent history of English Law, Pollock and Maitland say, of the trial by ordeal: “The history of ordeals is a long chapter in the history of mankind; we must not attempt to tell it. Men of many, if not all races, have carried the red-hot iron or performed some similar feat, in proof of their innocence.” (Vol. II., p. 598.)
[5] Sophocles’ Antigone, 264; Aeschylus, fr. 284.
[6] Asiatic Researches, vol. i., p. 389.
[7] Neilson’s “Trial by Combat.”
[8] Thayer’s “Older Modes of Trial,” II. Essays in Anglo-American Legal History, p. 393.
[9] Pattetta, Ordelie.
[10] Mackay’s Delusions; Athelstane.
[11] Pattetta, Ordalie.
In Sophocles’ Antigone, the guards protest their innocence to Creon, of any complicity in the burial of Polynices and offer to establish their innocence by ordeal, in the following lines:
[12] Pattetta, Ordalie; I. Reeve’s History English Law, p. 203.
[13] Ante idem.
[14] Mackay’s “Memoirs of Delusions.”
[15] Ante idem.
[16] According to Jolly, the translator of this book, the materials for the text date back many centuries before Christ and some of the old laws treated of, belong to the remotest antiquity, p. XX.
Rishi Narada was a celebrated Hindu Sage and Lawgiver, supposed to have been the son of Brahma and Saraswari. Mrs. Manning’s “Ancient and Med. India,” Vol. I., pp. 146, 249; Vol. II., pp. 119, 134.
The ordeal of the eucharist was based upon the statement of the Apostle, construed with pious veneration and accepted literally “he that eateth and drinketh unworthily eateth and drinketh damnation to himself.” I. Corinthians XI., 28, 29; Lea, “Superstition and Force,” (3 ed.) 304.
[17] Brahma, the first person, in the Triad, of the Hindus, was the god of the fates, master of life and death, the author of the Vedas and the great lawgiver and teacher of India.
[18] Institute Narada, Pt. I., c. 5, sec. 102, to Pt. II., pp. 44, 45. According to an eminent authority, ordeals are still practiced in India, in private life. Sir Henry Maine’s “Life and Speeches,” p. 426; Manning’s “Ancient and Mediaeval India,” Vol. I., pp. 146, 249; Vol. II., pp. 119, 134.
From the fragments of the Avesta, which have come down to us, containing snatches of the prehistoric law of the ancient Persians, the ordeal of boiling water was a fixed, settled legal procedure, at that distant day, for it is there recorded:
“Creator: he who knowingly approaches the hot, golden, boiling water, as if speaking truth, but lying to Mithra;
What is the punishment for it?
Then answered Ahura-Mazda: Let them strike seven hundred blows with the horse goad, seven hundred with the craesho-charaha.” This was the punishment affixed for using this particular ordeal for fraudulent purposes, just as if one trifled with one of the settled legal processes of the present day and as perjury was then prevalent, the punishment of twice seven hundred blows to the perjurer, was the penalty for using this ordeal to further perjury, or false swearing. Vendidad, Farg. IV., 156; “Records of the Past,” VII., 109; Lea, “Superstition and Force,” (3’ ed.) 233.
[19] Cap. Car. Mag. ann. 779, sec. 10; Lea, “Superstition and Force,” (3 ed.) 348.
[20] Capit. iv ann. 803, secs. iii, vi; in L. Longobard, Lib. ii, Tit. xxviii, sec. 3; Tit. iv, sec. 25; Capit. Car. Mag. I., ann. 809, sec. 20.
[21] Capit. Car. Mag. ann. 794, sec. 7; Lea, “Superstition and Force,” p. 338.
[22] Concil. Aquisgran. cap. xvii.
[23] L. Longobard, Lib. II., Tit. lv, sec. 32; Lea, “Superstition and Force,” p. 298.
[24] Herbert’s Antiquities (1804), p. 146.
[25] De Moribus Germanorum, cap. X.
[26] Herbert’s Antiquities, p. 147.
[27] Ante idem.; I. Pollock and Maitland’s History English Law, p. 39; Dr. Liebermann’s Sitzungsberichte der Berliner Akademie, 1896, XXXV., p. 829.
[28] Leg. Athelstan, 23; I. Reeve’s History English Law, p. 201; Analecta Anglo-Brit. lib. ii, cap. 8, inter Leges Athelstan, cap xxx.
[29] Dr. Liebermann’s Sitzungsberichte der Berliner Akadamie, XXXV., 829; I. Pollock and Maitland’s History English Law, p. 39, note.
[30] Herbert’s Antiquities (1804), pp. 147, 148.
[31] I. Reeve’s History English Law, pp. 201, 202; Leges Athelstan, 23.
[32] Mirror of Justice, c. 7, s. 24.
[33] I. Reeve’s History English Law, p. 203.
[34] Finlason’s note to I. Reeve’s History English Law, p. 201.
Pollock, in his “Anglo-Saxon Law,” says “A man of good repute could usually clear himself by oath, but circumstances of grave suspicion or previous bad character, would drive the defendant to stand his trial by ordeal.” I. Essays in Anglo-American Legal History, p. 93.
[35] Lamb, de priscis Angl. Leg. cap. 39.
[36] Herbert’s Antiquities (1804), p. 156.
[37] Ante idem.
[38] Leges, Aesthelstan, iv, sec. 6; Aetheldred, iii, sec. 7; Cnut, Secular. sec. 58; Lea, “Superstition and Force” (3 ed.), 253.
[39] Legg. Edwardi, cap. iii; Lea, “Superstition and Force” (3 ed.) 340.
[40] Legg. Aethelredi, cap. i, sec. I; Cnuti Saecul. cap. xxii; Henrici, I., cap lxv, sec. 3; Lea, supra.
[41] Schmid, Gesetze, p. 357; Stubbs, Select Charters; I. Pollock and Maitland’s History English Law, p. 450.
[42] Ante idem.
[43] LL. Inae, c. 77; Traites sur les coutumes Anglo-Normand. Tom. I., p. 577; Hale’s History Common Law, p. 152.
[44] Thayer “Older Modes of Trial,” V. Harvard Law Review, 64; II. Essays in Anglo-American Legal History, p. 394.
[45] Leges Henri, 31, sec. 5; Foedera, i, 154; II. Pollock and Maitland’s History English Law, p. 650.
[46] Palgrave, Commonwealth, p. 207; II. Pollock and Maitland’s History English Law, p. 650.
[47] Glanville (Beame’s tr.), p. 283.
[48] I. Reeve’s History English Law, pp. 456, 457; Mirror of Justice, cap. III., sec. 23; Lea, “Superstition and Force,” (3 ed.) 256.
“The water ordeals, both hot and cold, were stigmatized as plebian, from an early period, as the red-hot iron and the duel were patrician.” Lea, 283.
[49] I. Reeve’s History English Law, p. 456; I. Pollock and Maitland’s History English Law, p. 152.
[50] Ante idem.
[51] I. Reeve’s History English Law, p. 456.
[52] Litt. Hen. II., vol. iv, 279; I. Reeve’s History English Law, 457.
Instead of the judicium Dei, the success of the fifty men would look more like judicium clericus. Eadmer, Hist. Nov. 102; II. Pollock and Maitland History English Law, 599.
[53] This order to the justices, as we have seen, in the Essay on Peine forte et dure, had the effect of filling the jails of the kingdom with prisoners content to await the invention of some other method of trial than that of ordeal, and since none such was provided, to refuse to plead and thus baffle the king’s justices. To overcome this custom, the order not to endanger their lives or limbs, soon gave place to the terrible torture, by which they were literally pressed to death, for standing mute.
[54] II. Reeve’s History English Law, 286.
[55] II. Reeve’s History English Law, 287, and note.
[56] Lea “Superstition and Force,” (3 ed.) 291; Daemenologiae, Lib. III., cap. vi.
[57] Ante idem.
The Lateran Council of 1215 forbade the clergy to take part in the ceremony of the ordeal any further and in prompt obedience to this decree in England, Henry III. abolished it in the kingdom, as England was then at the Pope’s feet, and aside from the cases of witchcraft and sorcery, in the reign of James I., the ordeal last appears, as a method of judicial trial, in the old rolls of the reign of King John. (Concil. Lateran. IV., c. 18; Foedera, i, 154; Rolls of King’s Court, Pipe Roll Soc. 80, 86, 89;) Select Pl. Cr; Note Book, pl. 592; Lea, “Superstition and Force,” (3 ed.) 421; II. Pollock and Maitland’s History English Law., p. 599 and notes.
Lord Hale informs us: “That in all the time of King John ... trial by ordeal continued, ... but it seems to have ended with this king, for I do not find it in use any time after.” (History Common Law, p. 152.)
In Nigeria the trial by ordeal still obtains in cases of witchcraft and to vindicate the chastity of women. P. Amaury Talbot’s article, in London Telegraph, July, 1912.
[58] Regino. ann. 886—Annales Metenses; Lea, “Superstition and Force,” (3 ed.) 257.
[59] Lea, “Superstition and Force,” supra; S. Kunegundae, cap. 2; Ludewig Script. Rer. German. I., 346.
[60] Green’s History English People, vol. I.
[61] Freeman’s Norman Conq. Vol. II; Rapin, History d’ Angleterre, I., 123; Wm. of Malmesbury, Giles’ note, ann. 1043; Lea, “Superstition and Force,” (3 ed.) 258.
It seems that the charges against Queen Emma were preferred by Robert, Archbishop of Canterbury. She was accused both of consenting to the death of her son, Alfred, and of preparing poison for her son Edward, the Confessor, and also of intimacy with Alwyn, the Bishop of Winchester. The Dowager Queen, on the night preceding the trial, prayed for help, in the Abbey of St. Swithune, at Winchester and the next day she passed over the nine plow-shares unhurt. Archbishop Robert fled the kingdom and the King, who had brought about her trial, did penance for his credulity.
(The Percy Anecdotes, p. 161.)
The paternity of two children resulting from a morganitic marriage of Robert Curthose, son of William the Conqueror, is reported to have been established by the ordeal of the red-hot iron, which the mother carried unhurt, and Curthose, then Duke of Normandy, thus convinced of the legitimacy of the boys, regularly adopted them. Roger de Wendover, Ann. 1085; Lea, “Superstition and Force,” (3 ed.) 259.
[62] Roger of Wendover, ann. 1054; Matthew of Westminster, ann. 1054; Chronicles of Croyland, ann. 1053; Henry of Huntington, ann. 1053; Wm. of Malmesbury, Lib. II., cap. 13; Lea, “Superstition and Force,” (3 ed.) p. 301.
[63] Lea, “Superstition and Force,” supra.
[64] Lea, “Superstition and Force,” (3 ed.) p. 247.
[65] Ante idem.
[66] Lea, “Superstition and Force,” (3 ed.) p. 247; Hincmar, de Divert. Lothat. Interrog. vl.
[67] Palgrave erroneously states that the Retuii Curia Regis is the “oldest judicial record in existence.” The records of trials obtaining during the reign of Hammurabi, 2250 years before Christ, are in existence. See Chapter on “Recall of Judges;” John’s “Laws of Babylonia,” etc.
[68] Palgrave’s “Proofs and Illustrations,” clxxxviii; Stephen’s “Criminal Procedure,” II. Essays in Anglo-American Legal History, pp. 487, 488.
[69] Palgrave’s “Proofs and Illustrations,” clxxxv; Stephen’s “Criminal Procedure,” supra.
[70] Malleus Maleficar. Francof. 1580, pp. 523-31; Lea, “Superstition and Force,” (3 ed.) 264.
[71] Benjamin Thorpe’s Elder Edda, pp. 106, 107; Prof. Bugge’s Ed. of Copenhagen, (1867); Prof. Rask’s ed. of 1818; Lea, “Superstition and Force,” (3 ed.) 335.
[72] Benedicti Abbatis Gest. Henr. ann. 1189; Roger de Hoveden, ann. 1186; Lea, “Superstition and Force,” (3 ed.) 316.
[73] Richard III., Act I., Scene II.
Sir Walter Scott uses the ordeal of the bier in the “Fair Maid of Perth,” in connection with the killing of Oliver Proudfute, who was killed with a lochabar axe. On the principle that “murder will out,” while the body lay in state at the High Church of St. John, in Perth, the servants of Sir John Ramorny were required to pass by the corpse and touch it, but when Bonthron, the person who had really slain the deceased, came to the body, he refused to touch it and claimed the right of trial by battle. (“Fair Maid of Perth,” Chapter XXIII.)
[74] Lea, “Superstition and Force,” (3 ed.) 335.
[75] II. Pollock and Maitland’s History English Law, 650; Lea “Superstition and Force,” (3 ed.) 333.
[76] Ante idem.
[77] II. Cnuti, Saec. cap. xxx, xli.
[78] L. Henrici, I., cap. lxv, sec. 3.
[79] Lea, “Superstition and Force,” (3 ed.) 354, 356; Annal. Benedict. L. 57, No. 74, ann. 1036.
[80] Concil. Lateran. IV., c. 18; II. Pollock and Maitland’s History English Law, 599.
[81] Rymer, Foed. I., 228; II. Pollock and Maitland’s History Eng. Law, supra.
Illustrative of the approval of the church of Rome in the ancient procedure by ordeal, we find, in the ninth century that Hincmar expatiated upon the blessing of such a test, in that it combines “The elements of water and of fire: the one representing the deluge—the judgment inflicted on the wicked of old; the other authorized by the fiery doom of the future—the day of judgment, in both of which we see the righteous escape and the wicked suffer.” Hincmar, de Divort. Lothar. Interrog. vl; Lea, “Superstition and Force,” (3 ed.) 244.
[82] Lea, “Superstition and Force,” (3 ed.) 370.