§ 79. The Ordeal.

Grimm: Deutsche Rechtsalterthömer, Göttingen 1828, p. 908 sqq. Hildenbrand: Die Purgatio canonica et vulgaris, Mönchen 1841. Unger: Der gerichtliche Zweikampf, Göttingen 1847. Philipps: Ueber die Ordalien, Mönchen 1847. Dahn: Studien zur Gesch. der Germ. Gottesurtheile, Mönchen 1867. Pfalz: Die german. Ordalien, Leipz. 1865. Henry C. Lea: Superstition and Force, Philad. 1866, p. 175–280. (I have especially used Lea, who gives ample authorities for his statements.) For synodical legislation on ordeals see Hefele, Vols. III. and IV.

Another heathen custom with which the church had to deal, is the so-called Judgment of God or Ordeal, that is, a trial of guilt or innocence by a direct appeal to God through nature.³⁵²³⁵²    From the Anglo-Saxon ordael or ordela (from or=ur, and dael=theil): German: Urtheilor Gottesurtheil; Dutch: oordeel; French: ordéal; L. Lat.; ordalium, ordale, ordela. See Du Cange sub. ordela, aquae frigidae judicium, Duellum, Ferrum candens; Skeat (Etymol. Dict. of the Engl. Lang.) sub. Deal. It prevailed in China, Japan, India, Egypt (to a less extent in Greece and Rome), and among the barbaric races throughout Europe.³⁵³³⁵³    See the proof in Lea, who finds in the wide prevalence of this custom a confirmation of the common origin of the Aryan or Indo-germanic races.

The ordeal reverses the correct principle that a man must be held to be innocent until he is proved to be guilty, and throws the burden of proof upon the accused instead of the accuser. It is based on the superstitious and presumptuous belief that the divine Ruler of the universe will at any time work a miracle for the vindication of justice when man in his weakness cannot decide, and chooses to relieve himself of responsibility by calling heaven to his aid. In the Carlovingian Capitularies the following passage occurs: “Let doubtful cases be determined by the judgment of God. The judges may decide that which they clearly know, but that which they cannot know shall be reserved for the divine judgment. He whom God has reserved for his own judgment may not be condemned by human means.”

The customary ordeals in the middle ages were water-ordeals and fire-ordeals; the former were deemed plebeian, the latter (as well as the duel), patrician. The one called to mind the punishment of the deluge and of Pharaoh in the Red Sea; the other, the future punishment of hell. The water-ordeals were either by hot water,³⁵⁴³⁵⁴    Judicium aquae ferventis, aeneum, cacabus, caldaria. This is probably the oldest form in Europe. See Lea, p. 196. It is usually referred to in the most ancient texts of law, and especially recommended by Hincmar of Rheims, as combining the elements of water—the judgment of the deluge—and of fire—the judgment of the last day. The accused was obliged, with his naked arm, to find a small stone or ring in a boiling caldron of water (this was called in German the Kesselfang), or simply to throw the hand to the wrist or to the elbow into boiling water. See Lea, p. 196 sqq. or by cold water;³⁵⁵³⁵⁵    Judicium aquae frigidae. It was not known in Europe before Pope Eugenius II. (824-827), who seems to have introduced it. The accused was bound with cords, and lowered with a rope into a reservoir or pond, with the prayer (St., Dunstan’s formula): “Let not the water receive the body of him who, released from the weight of goodness, is upborne by the wind of iniquity.” It was supposed that the pure element would not receive a criminal into its bosom. It required therefore in this case a miracle to convict the accused, as in the natural order of things he would escape. Lea (p. 221) relates this instance from a MS. in the British Museum In 1083, during the deadly struggle between the Empire and the Papacy, as personified in Henry IV. and Hildebrand, the imperialists related with great delight that some of the leading prelates of the papal court submitted the cause of their chief to this ordeal. After a three days’ fast, and proper benediction of the water, they placed in it a boy to represent the Emperor, when to their horror he sank like a stone. On referring the result to Hildebrand, he ordered a repetition of the experiment, which was attended with the same result. Then, throwing him in, as a representative of the Pope, he obstinately floated during two trials, in spite of all efforts to force him under the surface, and an oath was exacted from them to maintain inviolable secrecy as to the unexpected result.” James I. of England was a strict believer in this ordeal, and thought that the pure element would never receive those who had desecrated the privileges of holy baptism. Even as late as 1836, an old woman, reputed to be a witch, was twice plunged into the sea at Hela, near Danzig, and as she persisted in rising to the surface, she was pronounced guilty and beaten to death. See Lea, p. 228 and 229. the fire-ordeals were either by hot iron,³⁵⁶³⁵⁶    Judicium ferri or ferri candentis. A favorite mode, administered in two different forms, the one by six or twelve red-hot plough-shares (vomeres igniti), over which the person had to walk bare-footed; the other by a piece of red-hot iron, which he had to carry for a distance of nine feet or more. See Lea, p. 201 sq. or by pure fire.³⁵⁷³⁵⁷    The accused had to stretch his hand into a fire; hence the French proverbial expression: ”J’en mettrais la main au feu,” as an affirmation of positive belief. Sometimes he had to walk bare-legged and bare-footed through the flames of huge pyres. Petrus Igneus gained his reputation and surname by an exploit of this kind. See examples in Lea, p. 209 sqq. Savonarola proposed this ordeal in 1498 to his enemies in proof of his assertion that the church needed a thorough reformation, and that his excommunication by Pope Alexander VI. was null and void, but he shrunk from the trial, lost his cause, and was hanged and burned after undergoing frightful tortures. He had not the courage of Hus at Constance, or Luther at Worms, and his attempted reformation left nothing but a tragic memory. The person accused or suspected of a crime was exposed to the danger of death or serious injury by one of these elements: if he escaped unhurt—if he plunged his arm to the elbow into boiling water, or walked barefoot upon heated plough-shares, or held a burning ball of iron in his hand, without injury, he was supposed to be declared innocent by a miraculous interposition of God, and discharged; otherwise he was punished.

To the ordeals belongs also the judicial duel or battle ordeal. It was based on the old superstition that God always gives victory to the innocent.³⁵⁸³⁵⁸    Tacitus (German, cap. 7) reports of the heathen Germans: ”[Deum] adesse, bellantibus credunt.“ It was usually allowed only to freemen. Aged and sick persons, women, children, and ecclesiastics could furnish substitutes, but not always. Mediaeval panegyrists trace the judicial duel back to Cain and Abel. It prevailed among the ancient Danes, Irish, Burgundians, Franks, and Lombards, but was unknown among the Anglo-Saxons before William the Conqueror, who introduced it into England. It was used also in international litigation. The custom died out in the sixteenth century.³⁵⁹³⁵⁹    See Lea, p. 75-174. The wager of battle, as a judicial institution, must not be confounded with the private duel which has been more or less customary among all races and in all ages, and still survives as a relic of barbarism, though misnamed “the satisfaction of a gentleman.” The judicial duel aims at the discovery of truth and the impartial administration of justice, while the object of the private duel is personal vengeance and reparation of honor.

The mediaeval church, with her strong belief in the miraculous, could not and did not generally oppose the ordeal, but she baptized it and made it a powerful means to enforce her authority over the ignorant and superstitious people she had to deal with. Several councils at Mainz in 880, at Tribur on the Rhine in 895, at Tours in 925, at Mainz in 1065, at Auch in 1068, at Grau in 1099, recognized and recommended it; the clergy, bishops, and archbishops, as Hincmar of Rheims, and Burckhardt of Worms, and even popes like Gregory VII. and Calixtus II. lent it their influence. St. Bernard approved of the cold-water process for the conviction of heretics, and St. Ivo of Chartres admitted that the incredulity of mankind sometimes required an appeal to the verdict of Heaven, though such appeals were not commanded by, the law of God. As late as 1215 the ferocious inquisitor Conrad of Marburg freely used the hot iron against eighty persons in Strassburg alone who were suspected of the Albigensian heresy. The clergy prepared the combatants by fasting and prayer, and special liturgical formula; they presided over the trial and pronounced the sentence. Sometimes fraud was practiced, and bribes offered and taken to divert the course of justice. Gregory of Tours mentions the case of a deacon who, in a conflict with an Arian priest, anointed his arm before he stretched it into the boiling caldron; the Arian discovered the trick, charged him with using magic arts, and declared the trial null and void; but a Catholic priest, Jacintus from Ravenna, stepped forward, and by catching the ring from the bubbling caldron, triumphantly vindicated the orthodox faith to the admiring multitude, declaring that the water felt cold at the bottom and agreeably warm at the top. When the Arian boldly repeated the experiment, his flesh was boiled off the bones up to the elbow.³⁶⁰³⁶⁰    De Gloria Martyrum I. 81. Lea, p. 198.

The Church even invented and substituted new ordeals, which were less painful and cruel than the old heathen forms, but shockingly profane according to our notions. Profanity and superstition are closely allied. These new methods are the ordeal of the cross, and the ordeal of the eucharist. They were especially used by ecclesiastics.

The ordeal of the cross³⁶¹³⁶¹    Judicium crucis, orstare ad crucem, Kreuzesprobe. A modification of it was the trial of standing with the arms extended in the form of a cross. In this way St. Lioba, abbess of Bischoffsheim, vindicated the honor of her convent against the charge of impurity when a new-born child was drowned in the neighborhood. Lea, p. 231. is simply a trial of physical strength. The plaintiff and the defendant, after appropriate religious ceremonies, stood with uplifted arm before a cross while divine service was performed, and victory depended on the length of endurance. Pepin first prescribed this trial, by a Capitulary of 752, in cases of application by a wife for divorce. Charlemagne prescribed it in cases of territorial disputes which might arise between his sons (806). But Louis-le-Débonnaire, soon after the death of Charlemagne, forbade its continuance at a Council of Aix-la-Chapelle in 816, because this abuse of the cross tended to bring the Christian symbol into contempt. His son, the Emperor Lothair, renewed the prohibition. A trace of this ordeal is left in the proverbial allusion to an experimentum crucis.

A still worse profanation was the ordeal of consecrated bread in the eucharist with the awful adjuration: “May this body and blood of our Lord Jesus Christ be a judgment to thee this day.”³⁶²³⁶²    Judicium offae, panis conjuratio, corsnaed, Abendmahlsprobe. Comp. Hefele IV. 370, 552, 735. It was enjoined by a Synod of Worms, in 868, upon bishops and priests who were accused of a capital crime, such as murder, adultery, theft, sorcery. It was employed by Cautinus, bishop of Auvergne, at the close of the sixth century, who administered the sacrament to a Count Eulalius, accused of patricide, and acquitted him after he had partaken of it without harm. King Lothair and his nobles took the sacrament in proof of his separation from Walrada, his mistress, but died soon afterwards at Piacenza of a sudden epidemic, and this was regarded by Pope Hadrian II. as a divine punishment. Rudolfus Glaber records the case of a monk who boldly received the consecrated host, but forthwith confessed his crime when the host slipped out of his navel, white and pure as before. Sibicho, bishop of Speier, underwent the trial to clear himself of the charge of adultery (1049). Even Pope Hildebrand made use of it in self-defense against Emperor Henry IV. at Canossa, in 1077. “Lest I should seem,” he said “to rely rather on human than divine testimony, and that I may remove from the minds of all, by immediate satisfaction, every scruple, behold this body of our Lord which I am about to take. Let it be to me this day a test of my innocence, and may the Omnipotent God this day by his judgment absolve me of the accusations if I am innocent, or let me perish by sudden death, if guilty.” Then the pope calmly took the wafer, and called upon the trembling emperor to do the same, but Henry evaded it on the ground of the absence of both his friends and his enemies, and promised instead to submit to a trial by the imperial diet.

The purgatorial oath, when administered by wonder-working relics, was also a kind of ordeal of ecclesiastical origin. A false oath on the black cross in the convent of Abington, made from the nails of the crucifixion, and derived from the Emperor Constantine, was fatal to the malefactor. In many cases these relics were the means of eliciting confessions which could not have been obtained by legal devices.

The genuine spirit of Christianity, however, urged towards an abolition rather than improvement of all these ordeals. Occasionally such voices of protest were raised, though for a long time without effect. Avitus, bishop of Vienne, in the beginning of the sixth century, remonstrated with Gundobald for giving prominence to the battle-ordeal in the Burgundian code. St. Agobard, archbishop of Lyons, before the middle of the ninth century (he died about 840) attacked the duel and the ordeal in two special treatises, which breathe the gospel spirit of humanity, fraternity and peace in advance of his age.³⁶³³⁶³    Liber adversus Legem Gundobadi (i.e. Leg. Burgundionum) et impia certarmina quae per eam geruntur; and Liber Contra Judicium Dei. See his Opera ed. Baluzius, Paris 1666, T. I. 107 sqq., 300 sqq., and in Migne’s Patrologia, Tom. CIV. f 113-126, and f. 250-258 (with the notes of Baluzius). He says that the ordeals are falsely called judgments of God; for God never prescribed them, never approved them, never willed them; but on the contrary, he commands us, in the law and the gospel, to love our neighbor as ourselves, and has appointed judges for the settlement of controversies among men. He warns against a presumptuous interpretation of providence whose counsels are secret and not to be revealed by water and fire. Several popes, Leo IV. (847–855), Nicolas I. (858–867), Stephen VI. (885–891), Sylvester II. (999–1003), Alexander II. (1061–1073), Alexander III. (1159–1181), Coelestin III. (1191–1198), Honorius III. (1222), and the fourth Lateran Council (1215), condemned more or less clearly the superstitious and frivolous provocation of miracles.³⁶⁴³⁶⁴    “At length, when the Papal authority reached its culminating point, a vigorous and sustained effort to abolish the whole system was made by the Popes who occupied the pontifical throne from 1159-1227. Nothing can be more peremptory than the prohibition uttered by Alexander III. In 1181, Lucius III. pronounced null and void the acquittal of a priest charged with homicide, who had undergone the water-ordeal, and ordered him to prove his innocence with compurgators, and the blow was followed up by his successors. Under Innocent III., the Fourth Council of Lateran, in 1215, formally forbade the employment of any ecclesiastical ceremonies in such trials; and as the moral influence of the ordeal depended entirely upon its religious associations, a strict observance of this canon must speedily have swept the whole system into oblivion. Yet at this very time the inquisitor Conrad of Marburg was employing in Germany the red-hot iron as a means of condemning his unfortunate victims by wholesale, and the chronicler relates that, whether innocent or guilty, few escaped the test. The canon of Lateran, however, was actively followed up by the Papal legates, and the effect was soon discernible.” Lea, p. 272. It was by their influence, aided by secular legislation, that these God-tempting ordeals gradually disappeared during the twelfth and thirteenth centuries, but the underlying idea survived in the torture which for a long time took the place of the ordeal.